Rotunda is a small Caribbean nation and longtime thorn in the side of its nearby Northern neighbor, the Confederate States of America. Paralleling the CSA’s secession from the United States of America in the mid-19th century, Rotunda left the Spanish Empire at the beginning of the 20th century. In the mid-20th century, Rotunda went communist under firebrand revolutionary leader El Fuerte. The CSA has been at loggerheads with Rotunda ever since. The CSA has attempted to isolate Rotunda. It has no diplomatic relations with Rotunda, whose contacts with the outside world are limited to communist nations in Europe and the invidiously liberal USA. The USA is full of social democrat apologists for Rotunda’s oppressive regime, who also carp about how the CSA’s containment policy is both ineffective and ill-considered as an impingement on Rotunda’s sovereignty.
Rotunda has no significant local fossil fuel energy resources, which lack of energy self-sufficiency is problematic in El Fuerte’s eyes. He is paranoid that the CSA will cut off Rotunda’s access to foreign energy sources and so decides to embrace nuclear energy for national security purposes (since Rotunda has uranium deposits, although its nuclear technology base is rather limited). Rotunda has access to subpar European nuclear reactor technology essentially on a cost-free basis. While no formal offer has been made, El Fuerte believes that, if asked, the USA would be willing to provide its sophisticated nuclear reactor technology to Rotunda on a concessional basis. Rotunda would not even think of approaching the CSA concerning licensing of its similarly sophisticated nuclear reactor technology (because Rotunda perceives the CSA as its enemy). El Fuerte would never allow the CSA to interfere with any prospective energy self-sufficiency program, given that Rotunda is launching the program in reaction to a perceived threat from the CSA.
On May 1, 1995, at the “Heroes of the Revolution” parade, El Fuerte announces to all Rotundans that the nation will embark on a crash program to build reactors to triple its production of electricity by the end of the third five year cycle of Rotunda’s second longterm development plan. He tells cheering crowds that in the name of self-sufficiency Rotundans must finance the actual construction of the reactors, but that, in line with internationalist principles, Rotunda’s revolutionary brothers in Europe will provide their reactor plans free of charge. What El Fuerte does not tell them is that the European reactor plans represent outdated technology (lacking sufficient redundant systems and similar failsafe technology to ensure against dangerous nuclear accidents). As national leader, El Fuerte calculates that the risk of accidents is acceptably low (balanced against the greater threat of CSA-sponsored interruption of fossil fuel shipments to Rotunda, or the painful cuts in social services that would be necessary were Rotunda to divert the limited funds available to purchase safer, sophisticated reactor technology from the USA even on favorable terms). Following the end of the parade, the USA’s ambassador to Rotunda offers El Fuerte technical assistance to help Rotunda construct and operate safer nuclear facilities.
On May 8, 1995, President Helmsley of the CSA appears in Miami to deliver a long-scheduled foreign policy address. Speaking as the CSA’s national leader, he states that Rotunda’s announced construction of nuclear reactors “of outmoded and dangerous design” is totally unacceptable to the CSA. Portions of CSA territory are located within 100 nautical miles of the reactors’ mooted location, including heavily populated resort areas of the Florida Keys. Helmsley states that reactor operations will endanger CSA territory and so impinge on its sovereignty. Rotunda cannot be allowed to construct reactors incorporating safety technology any less sophisticated than that which keeps the CSA’s domestic reactors running safely. Helmsley also states that economic pressure and similar measures directed against Rotunda will be increased in the attempt to hinder reactor construction.
El Fuerte ignores Helmsley’s statements and proceeds immediately with reactor construction. However, he does inquire further on a confidential basis of the USA’s ambassador to Rotunda about the offer of technical assistance concerning reactor safety. When told the price of the necessary technology, even on a concessional basis, El Fuerte exclaims that Rotunda is a poor country because of the CSA’s economic measures against it. If the CSA is so concerned about Rotundan reactors, it can pay the USA directly for sophisticated safety technology to be installed in Rotundan reactors. He, El Fuerte, will countenance that impingement on Rotunda’s plans. He will not agree to the waste of precious hard currency in order that CSA coastal residents might sleep more soundly at night. Let the norte americanos pay for redundant safety measures if they want them that badly, since the reactor constructed employing European safety standards will be in full compliance with Rotundan law. The USA ambassador in Rotunda sends an informal message to that effect to President Helmsley via the CSA’s ambassador in Washington, D.C. President Helmsley rejects the idea out of hand and threatens sanctions against any nation assisting Rotunda in its reactor building efforts.
On May 1, 1996, the first Rotundan reactor is ready for testing. Due to the inexperience of its new operators, a small amount of highly radioactive gas is vented during this initial test phase. The material is blown out to sea in the direction of the CSA, and shortly thereafter radiation monitors in Miami register a marginal increase in radioactivity. The CSA government treats this development as a confidential matter. CSA government epidemiologists calculate that the observed increase in radioactivity will lead to higher longer term mortality from increased cancer rates. However, the end result will be that no fewer than five nor more than twelve additional cancer deaths will result in the CSA from the increased radioactivity. No other negative effects are anticipated, since the increased radioactivity will disappear from CSA territory within three days. Winds will blow the atmospheric radiation away with the passage of time. None of this is made public in the CSA during the period of heightened atmospheric radioactivity over CSA territory.
The incident involving increased danger of cancer deaths is announced on June 1, 1996 by President Helmsley in yet another foreign policy speech in Miami. His speech makes the danger to CSA territory from Rotundan reactors sound so convincing that within 48 hours all vacationers in South Florida have fled. Economists calculate shortterm economic losses to South Florida at no less than $100,000,000. Shortly thereafter, the first Rotundan reactor is placed in full operation generating electricity.
On May 1, 1997 the cooling system in the first Rotundan reactor fails, resulting in vaporization of radioactive material (and resulting leaks). Given the lack of a robust containment vessel, the amount of radioactivity spewed into the atmosphere increases tenfold from the May 1, 1996 accident. Had USA or similar reactor safety technology been in place, no such release of radioactive material would have resulted. Rotunda is aware that the prevailing winds will blow the radioactive cloud towards Miami, but El Fuerte omits to inform the CSA of the accident through diplomatic channels (since Rotunda and the CSA do not maintain diplomatic relations). The CSA eventually learns of the second Rotundan radioactivity leak through a radiation monitoring facility in Miami, which reactor problem is confirmed via discrete inquiries of the USA through the CSA ambassador in Washington, D.C. CSA government epidemiologists calculate that exposure to the new radioactive atmospheric pollution will lead in the longer term to approximately 50 – 120 increased deaths from cancer on CSA territory.
President Helmsley immediately denounces this in a May 8, 1997 public speech as what he calls a “dastardly new threat” from Rotunda. Economists calculate resulting economic losses to South Florida at no less than $1,000,000,000, since now tourists will boycott South Florida in fear for several years. Further, a significant number of South Florida residents leave the area permanently claiming that they do not wish to gamble their lives on any third Rotundan nuclear accident. However, there is indeed a silver lining to everything. The same economists who calculate significant economic losses indicate that, with fewer hard drinking tourists on its roads, traffic deaths in South Florida will fall by 100 – 200 in the longer term (leading to jokes on talk radio drawing parallels to the claim that smoking actually saves money, since what states lose on increased health costs they more than make up for on pension and social security costs saved given increased mortality).
Congratulations on your appointment as a staff attorney in the CSA’s Ministry of Foreign Affairs. You have been asked to write a memorandum of law addressing Rotunda’s liability, if any, for construction and operation of its reactors under customary law principles of international environmental law. Take care to distinguish the several different incidents in your analysis, applying the customary law principles to Rotunda’s facts.
You do not have to concern yourself with any special nuclear treaties or similar sources of law treating nuclear activities as sui generis when writing this tutorial. This hypothetical can be resolved using only the principles articulated in the Trail Smelter arbitration, ICJ Nuclear Tests cases and Lake Lanoux arbitration in your instructional materials along with what we have generally said about customary law in class.
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