MOX Plant Case에 적용된 국제환경법 원칙의 분석

The duality policy regarding international nuclear issues has been established on the basis of the double-sided nature of nuclear utility: "the use of peaceful nuclear energy" and "the development of nuclear weapon". The duality policy has consisted of the dual framework that provides the extensive use of peaceful nuclear energy but at the same time strictly monitors and controls the development of nuclear weapons. On the other hand, the international community has only passively responded to the environmental issues caused by nuclear substances, and their gravity has not been recognized until a few large-scale nuclear accidents occurred, such as the 1979 Three Mile nuclear power accident and the 1986 Chernoville nuclear power accident. The international community does not fully understand the malignant effects that nuclear wastes have on the human body and the environment, and does not drive the international legal regime to regulate them. In the MOX Plant case, The United Kingdom and Ireland have instituted legal proceedings at the ITLOS, the UNCLOS tribunal, and the OSPAR tribunal concerning the effects of the nuclear wastes that were discharged into the Irish ocean. They have presented the general principles of international environmental law, which include the precautionary principle, the principle of cooperation, the environmental impact assessment, and the right to access to information in the process of these litigations. These principles that have been introduced in numerous international environmental conventions, international declarations, and international practice, however, were not applied or were only passively applied at the tribunals, with the exception of the principle of cooperation. The tribunals have expressed that the evidence presented to them is not enough, although they do not mean that they have not been aware of the possibility of environmental damage caused by the nuclear wastes from MOX reprocessing plant. This is an example of scientific uncertainty being an obstacle in settling environmental disputes. It also shows the reality that the legal principles which have been developed in the fields of international environmental law and have been widely acknowledged in international practice are not positively applied in the international proceedings, the reason being that they are non-binding. In my opinion, this case presents many issues that the international community has to deal with. Firstly, the international community must support the systematic research on the effect that the nuclear substances and wastes have on the environment. By giving scientific proof of the environmental damages done by radioactivity, it will be possible to provide the basis of international control over it and prevent environmental pollution caused by radioactivity. Secondly, there must be conventional international law to regulate nuclear waste and its movement across the borders. The Convention on Nuclear Safety of 1994 only applies to land-based civilian nuclear power and its nuclear installations, so international convention to regulate nuclear wastes must be adopted. Such a convention has to minimize the environmental risk that may actually occur, by regulating simultaneously the discharge of nuclear wastes and its international movement. Thirdly, the gap between the operational and the litigational approaches of the general principles of international environmental law should be narrowed. These principles mostly belong to the category of soft law that does not create binding international legal obligations, and their limits lie in the fact that they cannot firmly be applied as legal bases in judicial proceedings. They are, however, important elements in the development of international environmental law and are widely recognized in international practice. Therefore it is desirable to apply them in the international proceedings and establish their legal forces as binding through their continuous implementation in the international community. Lastly, the international community should try to change the concept of national sovereignty. Each state has adhered to the traditional idea of sovereignty, and as a result has largely prioritized the individual national interest over the interest of the international community as a whole. The concept of strong sovereignty, however, is under constant pressure because the international arena is changing. The concept of sovereignty is particularly challenged when international environmental issues are concerned. Sovereignty remains an important concept to each state, but each state must also realize the importance of protecting the environment and prioritizing it over other interests. Such a change of ideas is absolutely required if the international community is to overcome the environmental issues it faces today.