The justification and the optimisation principle in international nuclear law: theory and practice

Abstract

The purpose of this paper consists of a case study on nuclear law comprising following themes and issues: 1) The role of the law and the courts in today's 'Risk Society'. There is an evolution towards more regulation on prevention and precaution, using general principles such as the Precautionary Principle, Justification and the ALARA Principle (As low as Reasonably Achievable, economic and social factors taken into account). This evolution is the result of our complex technical society. Society and industry expect clarity and security of law, where law itself has become more and more vague. 2) Licensing procedure for high-risk activites. The main issue of this paper deals with the question: how is the licensing procedure for high-risk activities such as nuclear power governed to equilibrate the economic and ecological values? 3) Understanding the optimisation principles such as BATNEEC and ALARA The BATNEEC Principle ('Best Available Techniques Not Entailing Excessive Economic Cost') addresses the comparison of the available techniques of an industrial sector. The BATNEEC principle does not impose an individual or compelling choice on the licensee of a risky activity. It is merely seen as a legal duty to compare the 'safest techniques' imposed on the licensing authority. When legal duties, such as BATNEEC and ALARA, are also imposed on the licensee, through the regulation or the operation license, what legal sanctions can be applied?