Abstract
This chapter takes a new approach to the right to use nuclear energy for peaceful purposes. The pros and cons of nuclear energy will be assessed in light of human rights standards, whereby civil as well as economic, social and cultural rights will be equally taken into account. Contrary to environmental law, the relevance of international human rights law has not yet fully been recognized in the assessment of nuclear energy. This is surprising since the welfare and development of the human being was one of the driving forces behind the inclusion of the right to peaceful use of nuclear energy in the NPT. It will be demonstrated that the appropriate use of nuclear energy can, indeed, contribute to the enjoyment of human rights, in particular through electricity production and its practical applications in agriculture, industry, medicine, biology and hydrology. Special attention will be paid to the right to development, the right to health, the right to a good standard of living, including adequate food and drinking water, as well as the right to life and the right to respect for private life. In these domains, States are under a positive obligation to pursue actively the fulfillment of these rights. The right to use nuclear energy is nevertheless not unlimited and essentially the same human rights set certain limits. For instance, they constitute a significant barrier to an unfettered exploitation of uranium, causing grave pollution of ground water by which miners and local populations, in particular indigenous communities, are equally affected. Further, radioactive waste disposal constitutes a huge challenge for the present and future generations. Finally, accidents such as Chernobyl and Fukushima have shown the destructive nature inherent in nuclear activities. States enjoy a wide margin of appreciation in the decision whether or not to embrace the nuclear avenue—the present Chapter does not purport to offer definitive solutions, but is rather meant to give some guidance and food for further reflexion.
Ph.D. (University of Lausanne), MA (Graduate Institute of International Relations, Geneva), Senior Lecturer of International law, University of Lausanne; Member of the ILA Committee on Nuclear Weapons, Non-Proliferation and Contemporary International Law. The author expresses his gratitude to James Brannan for his precious help and comments on the text.
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Notes
- 1.
Nystuen and Graff Hugo 2014, p. 381.
- 2.
Shaker 2006, p. 118.
- 3.
Anastassov 2014, p. 161.
- 4.
Ibid, p. 160.
- 5.
Shaker 2006, p. 118. For the speech, see UNGA 470th Plen. Mtg., 8 December 1953, paras 79–126.
- 6.
Article II, 1st sentence, of the Statute of the IAEA.
- 7.
Fischer 1997, p. 9.
- 8.
Shaker 2006, p. 118. Moreover, they also feared that international control might turn into industrial espionage and that the new treaty would place them at the mercy of the NWS (Ibid).
- 9.
Ibid.
- 10.
Nystuen and Graff Hugo 2014, p. 382.
- 11.
Shaker 2006, pp. 118 ff.
- 12.
Ibid, p. 119.
- 13.
Emphasis added. See also paras 5–8 of the preamble of the NPT.
- 14.
Shaker 2006, p. 121.
- 15.
This was already underlined by the representative of the United States during the negotiations in 1968: ‘the right to such sharing is recognized explicitly not only as a right of non-nuclear powers, but also as a commitment to action by nuclear powers and all others in a position to contribute thereto’. (A/C.1/PV. 1577 [Prov., 31 May 1968], p. 77).
- 16.
Shaker 2006, p. 123.
- 17.
Emphasis added. The word ‘especially’ in Article IV NPT suggests that co-operation is not exclusively meant to happen with States Parties. Shaker mentions the nuclear deal between the United States and India as an example of nuclear co-operation between a State Party and a non State Party to the NPT (p. 124).
- 18.
Article 8 of the Pelindaba Treaty, Article 17 of the Tlatelolco Treaty , Article 4 of the Bangkok Treaty, Article 4 of the Treaty of Rarotonga, and Article 7 of the Semipalatinsk Treaty.
- 19.
For this reason, the Preparatory Commission of the Tlatelolco Treaty decided, during its last session, to change the title of the treaty from ‘Treaty on the denuclearization of Latin America’ to ‘Treaty prohibiting nuclear weapons in Latin America’. Robles 1971, pp. 78 ff.
- 20.
Paragraph 11 of the preamble; see also paras 5 and 10.
- 21.
Emphasis added.
- 22.
Nwogugu 1996, p. 235.
- 23.
Reddy 1997, p. 281, is of the opinion that it is unlikely that the drafters of the treaty intended to deny the right to ‘develop research [and] production’ to the States Parties since it is granted under the NPT.
- 24.
Reddy 1997, p. 281.
- 25.
Nwogugu 1996, p. 235. See also UN Disarmament YB, Vol 20, 1995, pp. 65–87, 70 ff.
- 26.
Stott 2011, p. 22.
- 27.
- 28.
Edwerd 2009, p. 53.
- 29.
Ibid.
- 30.
Fedchenko 2009, para 8.
- 31.
Ibid, para 2.
- 32.
Harris et al. 2009, p. 19.
- 33.
Ibid. See, for instance as far as positive obligations in the context of the right to water are concerned, Murillo Chávarro 2015, pp. 29–42.
- 34.
Cançado Trindade 2013, p. 358.
- 35.
Paragraph 13 of the preamble reads as follows: Recognizing that the human person is the central subject of the development process and that development policy should therefore make the human being the main participant and beneficiary of development….
- 36.
See, in this regard, also Article 6 para 2: ‘All human rights and fundamental freedoms are indivisible and interdependent; equal attention and urgent consideration should be given to the implementation, promotion and protection of civil, political, economic, social and cultural rights.’
- 37.
Cançado Trindade 2013, p. 359.
- 38.
See also Article 4 para 2 and Article 6 para 1.
- 39.
- 40.
Emphasis added.
- 41.
- 42.
Sen 2010, p. 3.
- 43.
Report of the independent expert on the question of human rights and extreme poverty, Magdalena Sepúlveda Carmon, UN Doc. A/63/274, 13 August 2008, para 20.
- 44.
Ibid, para 29.
- 45.
Sen 2010, p. 11.
- 46.
Article 22: (1) All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind. (2) States shall have the duty, individually or collectively, to ensure the exercise of the right to development.
- 47.
Okafor 2013, pp. 374–384.
- 48.
Ibid, pp. 378–380.
- 49.
African Commission on Human and Peoples’ Rights, 276/2003, 4 February 2010.
- 50.
Paragraph 298 (original emphasis). See, for a comment on the case, De Feyter 2013, pp. 164–167.
- 51.
Below, Sect. 2.3.3.1.
- 52.
- 53.
Atapattu 2005, p. 357. This author adds that the procedural elements include the right to information, the right to participate in the decision-making process, the environmental impact assessment process and the right to effective remedies (Ibid).
- 54.
Ibid.
- 55.
UN Doc. A/CONF.151/5/Rev.1 (1992), adopted on 13 June 1992.
- 56.
Resolution 66/288, para 125.
- 57.
Ibid, para 126.
- 58.
Ibid, para 119.
- 59.
Resolution 66/288, para 108. In this regard, the conference acknowledged the commitment to enhancing food security and access to adequate, safe and nutritious food for present and future generations in line with the ‘Five Rome Principles for Sustainable Global Food Security’, adopted on 16 November 2009 (Food and Agricultural Organization of the United Nations (FAO), document WSFS 2009/2).
- 60.
Ibid, para 52.
- 61.
Ibid, para 109. See also General Comment 15 (The Right to Water), mentioned above, which reads as follows in the relevant parts: ‘Attention should be given to ensuring that disadvantaged and marginalized farmers, including women farmers, have equitable access to water and water management systems…States Parties should ensure that there is adequate access to water for subsistence farming…’ (para 7).
- 62.
Resolution 66/288, para 109.
- 63.
Ibid.
- 64.
- 65.
Halff et al. 2014, p. 1.
- 66.
Ibid.
- 67.
Barnes et al. 2014, p. 56.
- 68.
Ibid.
- 69.
Ibid, p. 58.
- 70.
Ibid, p. 56.
- 71.
Ibid, p. 61.
- 72.
Ibid, p. 58.
- 73.
Ibid, p. 64, with further reference.
- 74.
Ibid, p. 64 ff.
- 75.
- 76.
Article 25 para 1 reads as follows: ‘Everyone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and necessary social services.’
- 77.
Article 5 e) iv).
- 78.
Articles 11 para 1 f) and 12.
- 79.
Article 24.
- 80.
Article 11.
- 81.
Article 16.
- 82.
Article 10. Similarly, the right to health has been proclaimed by the Commission on Human Rights, as well as in the Vienna Declaration and Program of Action of 1993 and other international instruments.
- 83.
Doc. E/C.12/2000/4, 11 August 2000.
- 84.
Paragraph 3 of the General Comment No. 14.
- 85.
The UN Convention on the Rights of the Child refers at least to clean drinking water and the dangers and risks of pollution; Article 24 para 2 c): ‘States Parties shall pursue full implementation of (the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health) and, in particular, shall take appropriate measures: to combat disease and malnutrition…through, inter alia…the provision of adequate foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution.’
- 86.
Article 24.
- 87.
Article 11: (1) Everyone shall have the right to live in a healthy environment and to have access to basic public services. (2) The States Parties shall promote the protection, preservation, and improvement of the environment.
- 88.
No. 155/96, Case No. ACHPR/COMM/A044/1, 13 to 27 October 2001, This case involved, inter alia, disposal of toxic wastes from oil exploitation in violation of applicable international standards and causing numerous avoidable spills near villages on the land of the Ogoni People, consequently poisoning much of the region’s soil and water, http://www1.umn.edu/humanrts/africa/comcases/155-96.html.
- 89.
The Universal Declaration of Human Rights covers, in its Article 25, the right to adequate food under the right to an adequate standard of living that includes also the right to health.
- 90.
Committee on Economic, Social and Cultural Rights, General Comment 12, Right to adequate food (Twentieth Session, 1999), UN Doc. E/C.12/1999/5 (1999), para 1.
- 91.
It is noteworthy that Article 28 para 1 of the Convention on the Rights of Persons with Disabilities of 2006 largely took over the wording of Article 11 para 1 and reads as follows: ‘Article 28 (Adequate standard of living and social protection): (1) States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability.’
- 92.
Ibid.
- 93.
General Comment 15, para 3.
- 94.
Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments 2007, UN Doc. A/HRC/6/3 (16 August 2007), paras 22–23.
- 95.
Centre for Minority Rights Development (Kenya) and Minority Rights Group International (on behalf of Endorois Welfare Council) v. Kenya, African Commission on Human and Peoples’ Rights, 276/2003, 4 February 2010, para 286: ‘…The Endorois were relegated to semi-arid land, which proved unsustainable for pastoralism, especially in view of the strict prohibition on access to the Lake area’s medicinal salt licks or traditional water sources…’
- 96.
Ibid, para 121.
- 97.
Ibid, para 124.
- 98.
See below, Sect. 2.4.2.1.
- 99.
See above, Sect. 2.3.2.3.
- 100.
Bruce and Chen Ding 2014, p. 115.
- 101.
Farhar et al. 2014, p. 156, with another reference.
- 102.
http://www-naweb.iaea.org/na/about-na/na-our-work.html.
Healthcare applications include sterilization by irradiation of food and medical equipment, as well as irradiation of insects in order to sterilize them and, as a result, eradicate infestation (Fedchenko 2009, p. 11).
- 103.
Applications include diagnostic procedures, such as injection of radioactive tracer in order to scrutinize specific physiological processes, as well as radiotherapy, involving irradiation of areas containing growing cancer cells in order to eliminate or control their growth (Fedchenko 2009, p. 11).
- 104.
- 105.
Ibid.
- 106.
Above, Sect. 2.3.2.3.
- 107.
- 108.
Ibid.
- 109.
Rautenbach 2006, para 35.
- 110.
- 111.
Ibid.
- 112.
- 113.
- 114.
Ibid.
- 115.
Ibid.
- 116.
Bruce, Chen Ding 2014, p. 113.
- 117.
Ibid, p. 121.
- 118.
Ibid, p. 122, with other references.
- 119.
Bruce and Ding 2014, p. 122.
- 120.
- 121.
Fedchenko 2009, para 9.
- 122.
See, in particular, the submissions by Indonesia, Malaysia, Solomon Islands, as well as the statement given by Costa Rica: ‘[A]ny use or threat of nuclear weapons by a State would violate the international law obligations reflected under the rules for the protection of the human right to life, health, a clean and healthy environment, and peace; especially the universality, indivisibility and interdependence of those rights…[N]uclear threat or use cannot coexist with the achievement of a global order embodying common security that realizes the purposes of the United Nations and provides fundamental human rights for all persons…’ (Verbatim Record, 14 November 1995, p. 31).
- 123.
See also Article 3 of the Universal Declaration of Human Rights.
- 124.
UNHRC, General Comment no 6, Right to life, 30 April 1982, para 5.
- 125.
Sawhoyamaxa, Indigenous Community v. Paraguay, IACHR, 29 March 2006, Series C, No. 146, paras 164, 168–173 and 178.
- 126.
For an overview, see Shelton 2006, pp. 129–171.
- 127.
Report of the United Nations Scientific Committee on the Effects of Atomic Radiation to the UN General Assembly, 2000, para 8, http://www.unscear.org/docs/reports/gareport.pdf.
- 128.
Ibid.
- 129.
See, as far as nuclear weapons tests are concerned, the website of CTBT Preparatory Commission: http://www.ctbto.org/nuclear-testing/the-effects-of-nuclear-testing/general-overview-of-theeffects-of-nuclear-testing/.
- 130.
Sweeney 2014, p. 56.
- 131.
‘Open pit mining’ is used to remove near-surface deposits and requires the removal of rock and soil to access the uranium ore. ‘Underground mining’ uses shafts and tunnels. ‘In situ-leaching’ is a combined mining and processing technology: A mix of chemicals is injected into the earth through a series of patterned holes, separating the uranium ore from surrounding rock (Fact Sheet Uranium Mining 4, http://www.ippnw.org/pdf/uranium-factsheet4.pdf).
- 132.
OECD Nuclear Energy Agency/International Atomic Energy Agency, Environmental Activities in Uranium Mining and Milling, Paris 1999, p. 17,
http://www.oecd-nea.org/ndd/pubs/1999/766-environmental-activities.pdf.
- 133.
Nyanda 2014, p. 14, OECD Nuclear Energy Agency/International Atomic Energy Agency, p. 17.
- 134.
Nyanda 2014, p. 14.
- 135.
Ibid. See also IPPNW, Fact Sheet Uranium Mining 4, cited above.
- 136.
Mtonga 2014, p. 20; see also Labour Resource and Research Institute (2009), Uranium Mining in Namibia, The Mystery behind ‘Low Level Radiation’, Windhoek, p. 42.
- 137.
Shindondola-Mote 2014, p. 23.
- 138.
Ibid, p. 27 and Pflugbeil 2014, p. 50.
- 139.
Shindondola-Mote 2014, p. 27; see also Labour Resource and Research Institute, pp. 36 and seq.
- 140.
According to Greenpeace and other NGOs, the mines in in Niger had used 270 billions liters of water over 40 years of operation (See also IPPNW, Fact Sheet Uranium Mining 4, cited above).
- 141.
In South Africa, it was reported that the West Rand Basin (the smallest of the mining basins) had fully flooded with acid mine water for ten years (2002–2012) and acid mine water had flowed uncontrolled and untreated during this period in the receiving environment. The acid water in the basin contained uranium, manganese, aluminium, copper and other toxic and potentially radioactive metals (Liefferink 2014, pp. 31 ff).
- 142.
Pflugbeil 2014, p. 51.
- 143.
- 144.
- 145.
- 146.
IPPNW, Fact Sheet Uranium Mining 4, cited above.
- 147.
Paragraph 227 of the Resolution 66/288.
- 148.
Ibid, para 228.
- 149.
See IPPNW, Fact Sheet Uranium Mining 1, http://www.nuclear-risks.org/fileadmin/user_upload/pdfs/factsheet_E_1.pdf.
- 150.
Göcke 2014, pp. 199–223.
- 151.
Sweeney 2014, p. 57.
- 152.
Ibid.
- 153.
- 154.
Xákmok Kásek Indigenous Community v. Paraguay, IACHR, para 174, Judgment of 24 August 2010.
- 155.
For instance, a primary goal of the Navajo in the United States of America is ‘to walk in harmony’ (hozho nashaaddo) (Markstrom and Charley 2006, p. 95).
- 156.
Yazzie-Lewis and Zion 2006, p. 5 ff.
- 157.
- 158.
- 159.
Johnston et al. 2010, p. 125.
- 160.
Wippel 2014, pp. 41 ff.
- 161.
Thiam 2014, pp. 35–37.
- 162.
Report of the United Nations Scientific Committee on the Effects of Atomic Radiation to the UN General Assembly, 2000, cited above, para 18.
- 163.
Ibid, and para 99 ff.
- 164.
Ibid, para 102.
- 165.
Pflugbeil et al. 2011.
- 166.
Society for Radiation Protection (Engl.).
- 167.
Pflugbeil et al. 2011.
- 168.
Ibid.
- 169.
Ibid.
- 170.
Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover, UN Doc. A/HRC/23/41/Add. 3, July 2013, para 6.
- 171.
Ibid.
- 172.
Ibid, para 7.
- 173.
IPPNW, German Section, ‘Gesundheitliche Folgen von Fukushima’, 2nd ed, Berlin 3 March 2015, p. 5.
- 174.
Ibid, p. 3.
- 175.
Ibid, p. 5.
- 176.
IPPNW, Critical Analysis of the UNSCEAR Report ‘Levels and effects of radiation exposure due to the nuclear accident after the 2011 Great East-Japan Earthquake and tsunami’, 5 June 2014, p. 18.
See also John F. Kennedy, 26th July 1963: ‘The number of children and grandchildren with cancer in their bones, with leukemia in their blood, or with poison in their lungs might seem statistically small to some, in comparison with natural health hazards. But this is not a natural health hazard—and it is not a statistical issue. The loss of even one human life, or the malformation of even one baby—who may be born long after we are gone—should be of concern to us all. Our children and grand-children are not merely statistics towards which we can indifferent.’ (cited by IPPNW, Critical Analysis of the UNSCEAR Report, op.cit., p. 19).
- 177.
Report Grover, para 11.
- 178.
Ibid.
- 179.
Ibid, para 22.
- 180.
IAEA, Generic Procedures for Medical Response During a Nuclear or Radiological Emergency, Emergency Preparedness and Response, Vienna 2005, p. 138.
- 181.
Report Grover, para 27.
- 182.
Ibid, para 28.
- 183.
Ibid, para 31.
- 184.
Ibid, para 32.
- 185.
Ibid, para 36. See also, in this regard, Morris-Suzuki 2012, pp. 11–13, http://www.greenpeace.org/slovenia/Global/slovenia/Dokumenti/Lessons-from-Fukushima.pdf.
- 186.
See, for instance, Bromet et al. 1982, pp. 225–276.
- 187.
- 188.
Report Grover, para 38.
- 189.
Yasumura et al. 2012, p. 379.
- 190.
Report Grover, para 41.
- 191.
Ibid. See, for instance, Wakeford 2008, pp. 166–174.
- 192.
Report Grover, para 42, with further references.
- 193.
Official Report of the Fukushima Nuclear Accident Independent Investigation Commission, cited above, p. 9.
- 194.
- 195.
Report Grover, para 43.
- 196.
Ibid, para 44.
- 197.
- 198.
See below, Chap. 9 (Odendahl).
- 199.
United States Nuclear Regulatory Commission (USNRC), Backgrounder on Radioactive Waste, http://www.nrc.gov/reading-rm/doc-collections/fact-sheets/radwaste.html.
- 200.
Ibid. This paper also explains the difference between high-level and low-level waste: while the former is, as explained, primarily spent fuel removed from reactors after producing electricity, the latter comes from reactor operations and from medical, academic, industrial, and other commercial uses of radioactive materials. See also the European Commission, Seventh Situation Report Radioactive Waste and Spent Fuel Management in the European Union, Commission Staff Working Paper, Brussels, 22.8.2011, SEC(2011) 1007 final, res://ieframe.dll/acr_error.htm#europa.eu,http://www.europarl.europa.eu/RegData/docs_autres_institutions/commission_europeenne/sec/2011/1007/COM_SEC(2011)1007_EN.pdf.
- 201.
Sovacoo and Dworkin 2014, p. 136.
- 202.
Green Cross Switzerland, Radioactive Waste and Uranium Mines, http://www.greencross.ch/en/news-info-en/case-studies/environmental-reports/ten-worst-pollution-problems/2008/radioactive-waste-and-uranium-mines.html.
- 203.
Louka 2013, pp. 94 ff.
- 204.
Birnie, Boyle, Redgwell 2009, p. 503.
- 205.
Emphasis added.
- 206.
Ibid.
- 207.
See also Article 11 (vi).
- 208.
See also Article 11 (vii).
- 209.
See Powell and Rayner v. United Kingdom, No. 9310/81, 21 February 1990, and in particular the leading case Hatton v. The United Kingdom [GC], No. 36022/97, 8 July 2003, and the following-up case Ashworth and Others v. United Kingdom (dec.), No. 39561/98, 20 January 2004 (inadmissible). Noteworthy also is the case of Moreno Gómez v. Spain, No. 4143/02, 16 November 2004, concerning noise pollution from nearby bars, pubs and discotheques and resulting in a violation of Article 8 ECHR.
- 210.
No. 16798/90, 9 December 1994.
- 211.
Ibid, para 53.
- 212.
Ibid, para 57 ff.
- 213.
Ibid, p. 466.
- 214.
Ibid, p. 467.
- 215.
Guruswamy and Aamodt 2001, p. 107.
- 216.
Ibid, pp. 107 ff.
- 217.
Birnie, Boyle, Redgwell 2009, p. 466.
- 218.
Resolution 66/288, para 215.
- 219.
Ibid, para 219: We urge countries and other stakeholders to take all possible measures to prevent the unsound management of hazardous wastes and their illegal dumping, particularly in countries where the capacity to deal with these waste is limited, in a manner consistent with the obligations of countries under relevant international instruments….
- 220.
Birnie, Boyle, Redgwell 2009, p. 473.
- 221.
Ibid, pp. 473 ff.
- 222.
Ibid, p. 474.
- 223.
Ibid. Regional treaties covering the Mediterranean and the South Pacific also prohibit export of hazardous waste to developing States Parties and small island States respectively, and ban imports by those States (1996 Mediterranean Protocol on Transboundary Movement of Hazardous Waste, and 1995 Waigani Convention on Hazardous Wastes within the South Pacific Region). Moreover, the fourth Lomé Convention, concluded in 1989, committed the EC to prohibit exports of radioactive or hazardous waste to any African, Caribbean or Pacific Island States parties, and prohibited those States from importing such waste from the EC or from anywhere else (Article 39, and Annexes VIII–X).
- 224.
Emphasis added.
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Rietiker, D. (2016). Between Prosperity and Destruction: A Modern Interpretation of the Right to Peaceful Use of Nuclear Energy in Light of the Protection of Human Rights and Future Generations. In: Black-Branch, J., Fleck, D. (eds) Nuclear Non-Proliferation in International Law - Volume III. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-138-8_2
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