By: Lauren Toole
In late September, a small, atmospheric monitoring station in Denmark detected something unusual: a radioactive isotope known as ruthenium-106.[i] The isotope was not just present in Denmark—it showed up across Europe, from Cyprus to Spain.[ii] Why the fuss? Ruthenium-106, an isotope that is created solely in nuclear reactors, usually only appears when “something goes terribly wrong.”[iii]
Within a couple of weeks, the ruthenium “cloud” had disappeared, but the classic, “who done it” question, among others, remained.[iv] All signs point to Russia as the culprit, but the country has yet to claim responsibility.[v] In the absence of any nation reporting an incident or accident, it is unlikely for there to be any international legal implications. Despite the fact that countries have agreed to report radioactive incidents or accidents, the lack of such in this case begs the question if other violations are—or already have—occurred that went unreported.[vi]
The International Atomic Energy Agency
The International Atomic Energy Agency (IAEA) serves as a focal point for global nuclear energy safety and peaceful development. It has 168 member states, including the U.S. and Russia.[vii] Through regulations and legally-binding rules, the IAEA sets forth a uniformity of standards, co-ordination, pooling of resources and services, and compliance.[viii]
In recognition of the need to create a framework for reporting mutual assistance in nuclear accidents, the IAEA created two complementary conventions. The first, the Convention on Early Notification of a Nuclear Accident, aims to prevent nuclear accidents and minimizes the consequences of any such accident.[ix] The Convention of Assistance in Case of a Nuclear Accident or Radiological Emergency provides international assistance in the case of a nuclear or radioactive incident.[x]
After the radioactive cloud was first detected over Europe, the IAEA issued a short statement that all of its member states that detected ruthenium, including Russia, said there were no nuclear incidents in their territory.[xi] However, two separate analyses have indicated that the cloud originated over Russia.[xii] Looking at weather patterns and meteorological data, these studies have concluded that the most likely point of origin is along the Russia-Kazakhstan border.[xiii] Additionally, the last time ruthenium-106 was detected in the atmosphere was after the Chernobyl incident.[xiv] Ironically, it was that very incident which prompted both the Early Notification and Assistance Conventions.[xv]
Enforcing IAEA Conventions
The Early Notification Convention requires nations that identify nuclear accidents to report to the IAEA the exact time and nature of the incident and possible countries that could be affected.[xvi] Though the Convention does not specifically address what a failure to notify entails procedurally, Article 11 provides some insight. It holds that disputes between nations regarding nuclear accidents are to be submitted to the International Court of Justice (ICJ).[xvii] For instance, if a state party to the treaty or the IAEA brings a claim regarding the accident, the claim is submitted for arbitration in the ICJ.[xviii] The agency itself would likely bring a claim against a country that fails to report an incident in the ICJ.
Unfortunately, Russia has opted out of that provision in the treaty.[xix] Even if Russia claimed ownership for the ruthenium leak, it could not be held accountable internationally under this convention. Indeed, many countries have opted out of this provision, probably because they are reluctant to turn over their citizens for international judgment and would prefer to litigate at home. However, in certain other circumstances there are other avenues that the IAEA could pursue with non-reporting countries.
In 1997, the Vienna Convention updated its protocol regarding civil liability for nuclear damage.[xx] It held that claims must be brought in the country where the incident occurred—solving the jurisdictional issue of the Early Assistance Convention.[xxi] It also broadened the definition of “nuclear incident” to include “any occurrence or similar occurrence which causes nuclear damage or . . . creates a grave and imminent threat of causing such damage.”[xxii] “Nuclear damage” is likewise defined as “[l]oss of life or personal injury” and “loss of damage to property.”[xxiii]
While this definition expands civil liability for nations in which nuclear incidents occur, it would not appear to include occurrences like the mysterious radioactive cloud. Since the ruthenium-106 isotope did not cause loss of life, damage, or personal injury, any country claiming fault could not be held accountable for damages. And, as already discussed, the Convention on Early Assistance is not readily enforceable.
We may never know where the radioactive cloud originated. While it has already disappeared, questions still linger about the efficacy of treaties designed to prevent and react to nuclear incidents. What the radioactive cloud would seem to suggest is that countries do not feel the need to report seemingly minor nuclear incidents. Ultimately, as this report illustrates, those nations will not face repercussions for failing to do so.
[i] See Geoff Brumfiel & Alina Selyukh, Clues In That Mysterious Cloud Point to Russia, NPR (Nov. 17, 2017), https://www.npr.org/sections/thetwo-way/2017/11/17/564642961/clues-in-that-mysterious-radioactive-cloud-point-toward-russia.
[v] See Alan Cowell, A Radioactive Cloud Wafts Over Europe, With Russia as Chief Suspect, N.Y. Times (Nov. 15, 2017), https://www.nytimes.com/2017/11/15/world/europe/radioactive-cloud-europe.html.
[vi] See generally, International Atomic Energy Agency [IAEA], Convention on Early Notification of a Nuclear Accident, IAEA Doc. INFCIRC/335 (Nov. 18, 1986) (providing regulations for states party to the treaty to prevent and minimize nuclear accidents) [hereinafter Convention on Early Notification].
[vii] IAEA, List of Member States, https://www.iaea.org/about/governance/list-of-member-states.
[viii] See IEAE Bulletin, International Law and Nuclear Energy: Overview of the Legal Framework March 1995), https://www.iaea.org/sites/default/files/37302081625.pdf.
[ix] See Convention on Early Notification, supra note 6.
[x] See IAEA, Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, IAEA Doc. INFCIRC/336 (Nov. 18, 1986) [hereinafter Convention on Assistance].
[xi] Brumfiel & Selyukh, supra note 1.
[xiii] See Geoff Brumfiel, Mysterious Radioactive Cloud Over Europe Hints at Accident Far East, NPR (Nov. 10, 2017), https://www.npr.org/sections/thetwo-way/2017/11/10/563286253/mysterious-radioactive-cloud-over-europe-hints-at-accident-farther-east.
[xv] See Convention on Early Notification, supra note 6; see also Convention on Assistance, supra note 9.
[xvi] See Convention on Early Notification, supra note 6, at Art. 4.
[xvii] See Convention on Early Notification, supra note 6, at Art. 11; see also Convention on Assistance, supra note 9, at Art. 13.
[xx] See IAEA, Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage, IAEA Doc. INFCIRC/566 (July 22, 1998).
[xxii] Id. at Art. 2.