The Justification and the Optimisation Principle in International Nuclear Law: Theory and Practice

The purpose of this paper consists in a case study on nuclear law giving rise to the following discussion themes: The role of the law and the courts in today’s “Risk Society” Although there is an evolution in our law systems to more regulation on prevention and precaution, this is not a new evolution in using General Principles, but the result of our complex technical society. Society and industry expect clarity and security of law where law itself is vague. This point would be a first theme for discussion, i.e. the role of the law and the courts in today’s society: Law and Ethics?; Process of law-making: technocrats versus democracy?; Quality of law: why do we accept the law? Licensing procedure for high-risk and the use of broad General Principles of Law such as precaution and justification About the Justification Principle, many questions remain and give rise to further legal challenges. This risk may be reduced by the provision of governmental guidance on practical questions relating to the application of the Justification principle to new and existing generic practices. This point would be a second theme for discussion, i.e. how is the licensing procedure for high-risk and activities governed to equilibrate the economic and ecological values? Motivation of public decisions; Transparency for the citizen; Proportionality and Precautionary Principle. Understanding between technicians, engineers, scientists and lawyers about the optimisation principle The BAT Principle (“Best Available Techniques”) compares available techniques of the industrial sector and does not imposes an individual or compelling choice on the licensee, which means no direct sanctions are given. A third theme for discussion is: are we ready for this new evolution? Can we find a common understanding between, technicians, engineers, scientists and lawyers on Optimisation Principles, such as ALARA (“As Low as Reasonably Achievable, taking economic and social factors into account”) and BAT?