Belarusian Ostrovets nuclear power plant: the challenge of cross-border negotiations to balance economic development and environmental protection^†

Abstract

States have sovereign rights that allow them to construct nuclear power plants. Moreover, engaging with nuclear power generation makes possible the achievement of the Sustainable Development Goals (2016–30) in combatting climate change, paramount to the Paris Agreement’s initiatives. In the same vein, however, constructing and operating power plants pose strict dangers to both general safety of the public and to national security. Thus, plant operations should strictly abide by the International Atomic Energy Agency (IAEA) standards and international law. As a result, it is important to consider the potential transboundary impacts of nuclear power plants and to conduct an appropriate transboundary environmental impact assessment (EIA). The article examines the construction of the Ostrovets Nuclear Power Plant by Belarus, close to the border of the Republic of Lithuania. The question in focus, however, is as follows: what international procedure can be used to coordinate issues of potentially negative transboundary impacts? Lithuania, in order to avoid the operation of the nuclear power plant, thus sought peaceful settlement of the dispute making use of the dispute resolution mechanisms based on international environmental agreements. The authors of this study show that the treaty bodies, established on the basis of international environmental agreements, provide important assistance in this matter in coordination with the IAEA. The use of these quasi-judicial means of resolving interstate disputes proves effective in pursuing a compromise between economic development and environmental protection. In the absence of such mechanisms at a universal level, one should consider utilizing such mechanisms in other regions of the world.

1. INTRODUCTION

Every nation maintains the sovereign right to operate nuclear power plants (NPPs) for the purpose of generating electricity, in conformity with international nuclear non-proliferation regimes and export controls. Given the increased danger of using nuclear power, state sovereignty comes with the understanding that abidance to international law is paramount for achieving responsible nuclear generation.¹ Understanding this, it is imperative that all international regulations and interventions are used to reduce the risks associated with the use of nuclear power, especially considering the nations inexperienced in nuclear generation. This especially concerns the states that are only just now embarking on a nuclear programme²; about 30 countries have considered, are considering, planning or starting nuclear power programmes, including four states constructing their first NPPs (UAE, Belarus, Bangladesh and Turkey).³ The International Atomic Energy Agency (IAEA) provides supervision ensuring that states do not use atomic energy for military purposes; it ‘shall seek to accelerate and enlarge the contribution of atomic energy to peace, health and prosperity throughout the world’.⁴

Today, an increasing number of states are considering the use of nuclear technology to ensure secure energy, while meeting the Sustainable Development Goals (SDGs) between the period of 2016 and 2030.⁵ States are also striving to meet rather ambitious commitments to the Paris Climate Agreements.⁶ All low-carbon energy technologies, including nuclear power, are a necessity in meeting the Paris Agreement’s goal of limiting the rise of global temperatures to below 2°C.⁷ It is important to note that the IAEA assists countries in their efforts to achieve the 17 SDGs,⁸ for example, using isotopic techniques to map and analyse groundwater resources in the Sahel.⁹ In many nations, nuclear science and technology are used to help address developmental challenges in areas such as energy, human health, food production, water management and environmental protection. Using these methods directly contributes to the achievement of nine of the 17 SDGs: SDG 2 (Zero hunger), SDG 3 (Good health and well-being), SDG 6 (Clean water and sanitation), SDG7 (Affordable and clean energy), SDG 9 (Industry, innovation and infrastructure), SDG 13 (Climate action), SDG 14 (Life below water), SDG 15 (Life on land) and SDG 17 (Partnerships for the goals).¹⁰

Moreover, nuclear power can play a large role in both mitigating and adapting to climate change. Nuclear power significantly contributes to reducing global greenhouse gas (GHG) emissions, while at the same time meeting the increasing demand for electricity from the growing global population while still supporting global sustainability initiatives. Practically no GHG or atmospheric pollutants are generated during the operation of an NPP, as showed by emission indicators during a plant’s life cycle. It should be noted, however, that GHGs are produced in the bigger picture of things, including the mining, processing, enrichment and manufacturing for the materials necessary to build a functioning power plant in all stages of its life, including storage and processing after use as well as during its decommissioning.¹¹ Using nuclear techniques, IAEA-supported research affirms that nuclear generation helps mitigate climate change and promotes measures to operate as such.¹²

The Paris Agreement’s impetus for decarbonizing economies should, in turn, create a favourable environment for nuclear expansion. Countries that opt for such a path can cement their role in the intended nationally determined contribution (INDC) submissions. For example, Turkey and South Korea mentioned the opportunity for decarbonizing their economies,¹³ while Germany is headed in the opposite direction.¹⁴ In this regard, it is necessary to recognize two very important trends.¹⁵ First, nuclear projects play integral roles in various plans for decarbonizing energy among several countries around the world, despite the fact that the construction of such plants is widely kept secretive in public discussions. That said, it is highly unlikely that power plants will be excluded from future plans and discussions dealing with decarbonized energy. Secondly, for a number of reasons, including the global consensus towards the thought of nuclear power, most countries do not even consider the construction of NPPs as a means for reducing GHGs. As a result, it is almost certain that such initiatives will not qualify for international funding allocated under the Paris Agreement. Thus, it becomes increasingly challenging for developing countries to engage in nuclear generation, so as to give themselves the opportunity to reduce carbon emissions.

Today, out of 193 UN (United Nations) Member States, only 31 states operate NPPs.¹⁶ Despite the current lack of consensus among nations, there is sufficient reason to believe that nuclear power operations are indeed achieving SDGs, ultimately combatting climate change as outlined by the Paris Agreement. The Republic of Belarus has even mentioned the positive effect of its NPP in its INDC under the Paris Agreement¹⁷ and in the Voluntary National Review on SDGs.¹⁸ In the framework of this article, we will consider the process of developing nuclear power in Belarus and coordinating construction with the neighbouring state Lithuania, using sustainable means of international dispute resolutions. Thus, this article will examine the history of Belarusian–Lithuanian relations in the field of atomic energy. Further, we will analyse, in detail, the dispute resolution procedures under both the 1991 Espoo Convention and the 1998 Aarhus Convention regarding the consideration of environmental regulations during the Ostrovets NPP construction. Such regulations outlined the transboundary Environmental Impact Assessments (EIA) procedure and the protection of environmental human rights. By the end of the article, it is concluded that the use of these quasi-judicial means of resolving interstate disputes proves effective in pursuit of a compromise between economic development and environmental protection. In the absence of such mechanisms at a universal level, one should consider inducing such control mechanisms in other regions of the world.

2. HISTORY OF BELARUSIAN–LITHUANIAN RELATIONS IN THE FIELD OF ATOMIC ENERGY

The construction of the Belarus nuclear power project was first considered during the late 1960s—early 1970s. Between 1968 and 1969, considerable work was carried out to select a site for the power plant’s construction, but, for several reasons, this project was delayed. The Union of Soviet Socialist Republics (USSR) did not yet produce the specific turbines needed for the plant’s successful operation. These turbines, according to Soviet energy experts, required lots of preparatory work to ensure the most promising results.¹⁹ As a result of extensive Soviet research, the decision was made to build the nuclear plant on the Lithuanian side of Lake Drysvyaty, along its shore. Lake Drysvyaty is dually located in Northeastern Lithuania and Belarus. The decision considered numerous geological surveys (unsuitable soils for the construction site) through calculating its profitability in terms of capital investments. Thus, the Ignalina NPP was built on the Lithuanian shore of the lake, a few kilometres from the border with the Belarusian Soviet Socialist Republics (BSSR). It is important to note that the Lithuanian-based NPP operated for 26 years (1983–2009). After gaining independence from the USSR, Lithuania continued to use the NPP, which played an extremely important role in the country’s energy sector. For example, in 1991, the Ignalina NPP produced 60 per cent of the country’s total electricity. In 1993, 12.26 billion kWh of electricity was generated at said plant, which amounted to 88.1 per cent of all generated electricity.²⁰ However, one of the conditions for Lithuania’s accession into the European Union (EU) was the closure of the NPP due to strong EU concerns about this kind of reactor (the light-water, graphite-moderated reactors were of similar design as those at Chernobyl). In 2001, the programme for the decommission of the Ignalina NPP was thus approved. The first of two units was shut down in December 2004, the latter of which decommissioned by the end of 2009. Immediately afterwards, in 2010, the plant’s equipment and systems were dismantled.²¹ After the plant’s closure, Lithuania, Latvia, Estonia and the Japanese company Hitachi discussed plans to build a new NPP next to the closed Ignalina NPP. At the end of June 2012, the Lithuanian Parliament approved the draft Law on the Construction of an NPP in Visaginas in its first reading, then held a referendum on this proposal. On 14 October 2012, a national referendum was held in Lithuania where 65 per cent of the 1,361,082 people who voted said ‘no’ to the Visaginas NPP. The referendum decision, in accordance with Lithuanian law, is advisory in nature, yet the country’s leadership decided to abide. After the referendum, the nuclear project quickly fell out of sight and mind. The idea for a new plant, however, had not vanished from Baltic conversation.²²

Despite the fact that an NPP was built in Lithuania during the 1970s, in close proximity to Belarus, the possibility of constructing a Belarusian NPP was discussed at both republican and union levels. The leadership of the BSSR²³ considered nuclear power as being the most sustainable way to ensure the growing republic consumption of electricity. In total, more than 20 Belarussian areas were considered as being possible sites for nuclear construction and operation. In 1988, however, after the accident at the Chernobyl NPP, the popularity of NPPs greatly declined, and discussions were abandoned as a result of great public pressure. Later, the economic downturn of the late 1980s and early 1990s led to decreased electricity consumption, contributing to the loss of nuclear relevance in Belarus. It was not until the 2000s that the construction of NPPs reappeared on the national Belarusian agenda, mainly due to the nation’s growing electricity needs and increased prices of imported energy. Such a decision to build another NPP was not made in haste, especially considering the somewhat recent Chernobyl disaster and the scar that it left on surrounding regions, including Belarus. Such fears fostered heavy internal debate, including hearings of the governmental commission in December 1998 and the public hearings in Ostrovets in October 2009, with some arguing that ‘simply providing information can hardly be viewed as an authentic risk debate’.²⁴

On 15 January 2008, at a session of the Security Council of the Republic of Belarus, the decision was made to build an NPP in Belarus.²⁵ On 30 July 2008, the Law of the Republic of Belarus ‘On the Use of Atomic Energy’ was adopted.²⁶

The Republic of Belarus uses a variety of tools and facilities offered by the IAEA and undergoes regular evaluation procedures of the Agency.

Currently, the Belarusian NPP is still under construction. The construction site is located on the northwestern border of Belarus, 18 kilometres from the city of Ostrovets, Grodno region, 50 kilometres from Vilnius, the capital of Lithuania. The first unit of the NPP is scheduled to be commissioned in 2020 (1.200 MW), with the second unit scheduled for operation as early as 2021 (1.200 MW). Belarus’ main partner in the construction of the NPP is the Russian company Atomstroyexport. The first document related to the construction of an NPP was signed in Minsk on 28 May 2009. This is a Belarusian–Russian intergovernmental agreement outlining cooperation pertaining to the peaceful uses of atomic energy.²⁷ The areas of interest in this agreement include the fields of development, design, construction and the operation of the NPP. Nuclear fuel supplies, nuclear and radiation safety and the issues of scientific cooperation and personnel training are also outlined in said agreement. In 2013, Belarus and Russia signed an agreement outlining emergency notifications in the event of a nuclear accident, where the exchange of information pertaining to nuclear and radiation safety have been established.²⁸

Lithuania has opposed the construction of the Belarussian NPP, noting the potential environmental hazards and negative impacts as a result of such close proximity to the Lithuanian border. Lithuania’s discontent, however, does not only lie in their announced reasoning.²⁹ First, Lithuania rejects the expansion of Russia’s geopolitical influence, Russia clearly having a role in constructing this power plant. Secondly, the launch of the Belarusian NPP reduces the economic profitability of the planned Baltic NPP (the project is still being discussed, as indicated above), because Belarusian plans to export energy. In efforts to peacefully settle the dispute over the new NPP, Lithuania turned to international dispute resolution mechanisms based on environmental agreements.

In one instance, there are a lot of positive environmental and economic effects for Belarus in using an NPP: new jobs (builders) and training in the field of nuclear industry (NPP personnel); reduction of GHG emissions in Belarus by 10 per cent; reduction of natural gas consumption by ¼ (5 billion cubic metres); the ability to export electricity to neighbouring countries; and the generation of up to 30 per cent of the country’s overall electricity.³⁰

Belarus acceded to the Paris Agreement and unconditionally committed to ensure, by 2030, a reduction in GHG emissions by more than 28 per cent as compared to 1990. Therefore, the development of low-carbon energy is becoming a top priority for the Belarusian economy.

At the same time, Belarus parallels its initial promise by emphasizing its goals of launching an NPP. The representative of the Ministry of Natural Resources and Environmental Protection of Belarus even stated: ‘The launch of a nuclear power plant will help Belarus fulfill the tasks of the Paris Climate Agreement.’³¹

In particular, reliance on natural gas, fuel, oil and coal should be reduced. According to calculations, thanks to the NPP, annual imports of natural gas could be reduced by 5 billion cubic metres. The use of nuclear power can also help reduce the cost of electricity. This, in turn, will reduce the cost of the production of goods, where a significant proportion of the cost is simply the cost of electricity.

In another instance, however, the Republic of Lithuania, as a neighbouring state, expressed concern about the potential transboundary environmental damage from the NPP. There is currently no universal international dispute resolution mechanism, and Belarus is not a member of the EU and the Council of Europe. As a result of Belarus’ lack of membership of both the organizations, the use of dispute resolution mechanisms provided for within these organizations (European Court of Justice and European Court of Human Rights ) is precluded. There are no substantial grounds for considering the case at the International Court of Justice (ICJ)³² nor through international arbitration, either. The Republic of Lithuania thus decided to use dispute resolution mechanisms established in two conventions adopted within the framework of the United Nations Economic Commission for Europe (UNECE): the Convention on Environmental Impact Assessment in a Transboundary Context (the Espoo Convention) of 1991, and the Convention on Access to Information and Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention) of 1998.

Considering that Belarus plans to use the water of the Neris River to cool the reactors of the Ostrovets NPP, and noting the potential impact of this project on the water basin of the Nyaris and Nemunas rivers, Lithuania raised numerous concerns at the Conference of the Parties to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes.³³ It should be noted that, in the absence of legal mediation between Lithuania and Belarus regarding water resource protection, it is imperative that Lithuania and Belarus develop a protocol on the management of the Nemunas River Basin. However, it is further important to note that, in 2018, the Espoo Committee emphasized: ‘Concerning the question on the contamination of rivers and groundwater, the Committee found that the information in the environmental impact assessment documentation covered both the conditions related to normal operation of the nuclear power plant and the effects of accidents, including “beyond design basis” accidents.’³⁴

Currently, Belarus and Lithuania are disputing the safety of the Belarusian NPP under construction in the Grodno region. Lithuania believes that the Belarusian party violates the Espoo Convention (the complaint was filed in 2011, the case is closed, and the follow-up is under way)³⁵ and the Aarhus Convention (the complaint was filed in 2015, the consideration process is under way,³⁶ and is further discussed in Section 4).

3. DISPUTE RESOLUTION UNDER THE ESPOO CONVENTION

On 15 July 2008, in compliance with the provisions of the Convention on the Environmental Impact Assessment in a Transboundary Context (Espoo Convention), the Ministry of Natural Resources and Environmental Protection of the Republic of Belarus sent a preliminary notification regarding the nation’s intent to build an NPP to neighbouring countries (Latvia, Lithuania, Poland, Ukraine and Russia), and to the Secretariat of the Espoo Convention. On 17 September 2009, a preliminary report on the EIA of the Belarusian NPP was then sent to interested parties (Latvia, Lithuania, Poland, Ukraine, Russia and Austria). On 14 July 2010, after the completion of public hearings and consultations, including with neighbouring countries, the state environmental review of the EIA report of the Belarusian NPP was completed by the Ministry of Natural Resources and Environmental Protection.

Understanding that the Implementation Committee operates under the Espoo Convention, the Lithuanian Ministry of the Environment submitted a claim, in July 2011, to this Committee regarding Belarus’s failure to comply with the Espoo Convention’s requirements when planning the construction of an NPP at the Ostrovets site.³⁷ According to Lithuania, Belarus violated a number of articles of the Espoo Convention: Belarus failed to inform the Lithuanian public about the Ostrovets NPP project (Article 2.6); drafted documentation on EIA in an inappropriate manner (Article 4.2); failed to hold expert consultations (Article 5(a)); and inappropriately decided to commence construction of the plant (Articles 6.1 and 6.2).

The Committee accepted the claim and considered the case at its 23–26 Sessions of the Committee for two-year submission. Before finalizing its findings and recommendations, the Implementation Committee sent the draft to the parties to the dispute and invited them to submit their comments or submissions.³⁸ Having considered Lithuania’s claim at its 27th session (12–14 March 2013), on 15 April 2013, the Committee published the final recommendations for both Belarus and Lithuania considering the comments and submissions of the two interested parties.³⁹ The Committee listened to both sides of the dispute and indicated that Belarus is in compliance with its obligations under subparagraphs of Article 3 (paragraphs 2(a)(c) and 8), but does not comply with Article 2 (paragraph 6), Article 4 (paragraph 2), Articles 5(a) and 6 (paragraphs 1 and 2).

In order to reach a consensus and implement the recommendations of the Committee, the Belarusian Ministry of Natural Resources and Environmental Protection regularly corresponded with the Lithuanian Ministry of the Environment. Such correspondence, generally in the form of letters, answered numerous questions of the Lithuanian Ministry concerning EIA procedure. In addition, the Belarusian Ministry has repeatedly, in writing, proposed to hold a joint consultation of the Belarusian and Lithuanian experts on the NPP EIA report. Materials relevant to the research and surveys conducted on the Ostrovets site (containing justification of the safety of the NPP construction in this area) were also sent to the Lithuanian Ministry.

Decision VI/2, regarding Belarus, was adopted at the Espoo Convention Meeting of the Parties.⁴⁰ Despite the fact that the decisions of the Implementation Committee are non-binding, amendments were made to the Belarusian legislation regarding the improvement of the EIA procedure with the committee’s input. This fact was emphasized in decision VI/2. At the same time, the Meeting of the Parties emphasized that Belarus partially ‘did’ comply with the provisions of the Espoo Convention, and partially ‘did not’ comply (Articles 2(6), 4(1), 5(а) and 6(1, 2). The Meeting of the Parties then called for cooperation in the implementation of the EIA. Also, in its 27th session, the Meeting of the Parties requested that the Committee carefully review the steps taken by the two Parties since the adoption of the Committee’s report following decision VI/2.

In February 2017, based on a thorough analysis of the steps taken by both Parties after the 27th session of the Committee, the Committee concluded that Belarus had taken all necessary steps to make a final decision, as provided for in the Convention. However, regarding Belarus’ compliance, the Committee could not come to a final conclusion on the compliance of the steps taken by Belarus to make a final decision with the provisions of the Convention, since the essence of the compliance case was related to unresolved material aspects of the EIA documentation.⁴¹ In fact, the Committee noted that it had neither the opportunity nor the mandate to study the outstanding environmental and scientific issues that had been raised in connection with the activities of both Parties in Ostrovets. Thus, the Committee finalized its recommendations to the Meeting of the Parties, including two proposals on how expert recommendations could be provided to the Committee, so that it could conclude that EIA documentation was sufficient enough for Belarus to make a final decision to proceed with their activities. The expert recommendations will be provided to the Committee through one of the two proposed alternatives.

Lithuania voiced their concerns, before the Committee, on the disposal of radioactive waste and used fuel. The Committee, in response, noted that the EIA documentation contains information on the planned disposal of radioactive waste and spent fuel.⁴² According to the EIA documentation, the envisioned contracts for the disposal of spent nuclear fuel were ‘not’ concluded at that time, which, in the Committee’s opinion, is common practice at this stage of the process. In this regard, the Committee concluded that this aspect was considered in an acceptable manner. However, the Committee emphasized the need to ensure the proper implementation of waste management in accordance with the planned procedure. The Belarussian government should seriously consider this recommendation.

At the interim session of the Meeting of the Parties to the Espoo Convention in February 2019, draft decision IS/1d was adopted, with the compliance of Belarus, with its obligations under the Convention in respect to the Belarusian NPP in Ostrovets.⁴³ The draft decision approved the conclusions of the Implementation Committee in stating that Belarus had taken all the necessary procedural steps to reach a final decision on the planned activities in Ostrovets, as outlined in the Espoo Convention.

Lithuania’s question cannot be answered within the Committee’s jurisdiction, and instead concerns the unresolved material aspects of EIA documentation, including reasonable alternative locations and the methodology and data used to determine the location of the facility.

Of course, in concluding whether or not Belarus is fulfilling its obligation under the Convention, it is necessary to consider the procedural and substantive aspects of the EIA procedure. Since these two aspects may not necessarily be separately considered during the EIA, the Committee would need additional resources and specific expert services for such a broader and more detailed compliance evaluation. Although the Committee has already carried out an assessment of the documentation with the IAEA, the draft document approved the conclusions of the Implementation Committee. Belarus’ EIA documentation for the Ostrovets NPP contains information that sufficiently clarifies the points mentioned in technical and scientific issues specific to the Ostrovets site. At the same time, it is stated that, although Belarusian documentation mentions alternative locations for the NPP and site selection criteria, it does not provide sufficient information to support and justify the Ostrovets as a final decision, which is not compliant with Articles 4(1), 5(а) and 6(1) of the Convention. The draft decision concludes with an appeal to the parties to: conclude a bilateral agreement on the implementation of the Convention; continue bilateral expert consultations on controversial issues, including issues beyond the scope of the Convention; as well as continuing to work on post-project analysis, reaching an agreement on the establishment of a joint bilateral body adopting procedures for conducting such an analysis, in particular, ensuring sufficient public participation in the post-project analysis regarding activities in Ostrovets. Belorussia and Lithuania agreed to cooperate. But Belarus later mentioned that ‘due to the unconstructive politicized position of Lithuania on the location of the nuclear power plant, it was not possible to achieve optimal interaction within the framework of concluding a bilateral agreement on the implementation of the Convention, as well as post-project analysis, as recommended by the Meeting of the Parties’.⁴⁴ The Eighth Session of the Meeting of the Parties is expected to consider the draft decision and agree on its adoption in 2020.

In brief, it must be noted that the Espoo Committee, despite the above-mentioned positive aspects, also has negative aspects. The discussion of the problem has been delayed for a very long time, which indicates the need to amend the procedure for these dispute resolution mechanisms. It is absurd to discuss the insufficiency of the Belarussian arguments in justifying the choice of the Ostrovets site among the evaluated alternatives a year before the start of the NPP. Moreover, the transition from using a consensus to, now, voting as part of the decision-making process in the Committee undermines the legitimacy of the activities. All these facts also need to be considered when reforming international environmental non-compliance mechanisms. Legally, this is a situation where a transboundary EIA has been carried out (in expanded format: Lithuania, Austria, Latvia, Poland and Ukraine), but there are questions regarding the scope of the EIA. There is currently no comprehensive list of EIA criteria that may be considered an abuse of law.

4. DISPUTE RESOLUTION UNDER THE AARHUS CONVENTION

Since the start of the plant’s construction, consultations have been ongoing between Lithuania and Belarus. Belarus organized and held public hearings for citizens of both Lithuania and Belarus regarding the construction of an NPP in 2009, 2010 and 2013,⁴⁵ having notified interested parties in advance.

However, in March 2015, Lithuania submitted a complaint⁴⁶ to the Compliance Committee of the UNECE Convention on Aarhus Convention (Aarhus, Denmark, 25 June 1998)⁴⁷ on Belarussian violation of Articles 3(9) and 6(2,3,6,8) of the Aarhus Convention. Such a complaint addressed public participation in the decision-making process on the construction of the NPP. Lithuania insisted that the documents be translated into Lithuanian so as to make them available to the Lithuanian public. Belarus initially provided submissions in Russian and English, but, in 2010, the documents were translated into Lithuanian. It is important to note that the issue of written transparency is ‘not’ regulated in detail by the Aarhus Convention. The official Guide to the Aarhus Convention (the first version that existed in 2009–13) did not say anything about said issue, and the second edition of the Guide indicated: ‘at minimum, the documentation to be translated should include the non-technical summary and those parts of the EIA documentation that are necessary to provide an opportunity to the public of the affected Party to participate that is equivalent to that provided to the public of the Party of origin’.⁴⁸

In the process of considering the complaint from Lithuania, Belarus, in response to the comments of the Aarhus Committee in 2017, amended its national legislation in order to comply more clearly with the provisions of the Aarhus Convention.⁴⁹ Since the end of 2017, there has been no more discussion, nor anymore commenting from the Committee, on said issue.

5. CONCLUSIONS

In general, the construction and operation of an NPP should strictly abide by international requirements. There must be a balance between both feasibility and environmental protection. The control mechanisms of the two conventions (the Espoo Convention of 1991 and the Aarhus Convention of 1998) provide great assistance on this matter. These mechanisms are mainly used in the ‘individual/NGO versus State’ format but are rarely used to resolve intergovernmental disputes. The Espoo Committee has considered six intergovernmental claims (in 2011, Azerbaijan filed a complaint regarding the construction of an NPP in Armenia in Metsamor),⁵⁰ and the Aarhus Committee—two such claims.⁵¹ Moreover, the Espoo Committee has interacted with the IAEA throughout the course of its work on the assessment of documents, ensuring a high level of expertise and collaboration regarding the activities of the international treaty body and the international organization.

In general, continuous work of the treaty bodies on dealing with complaints (the Espoo Committee is nine years old) makes possible the ability to keep the solution of the issue within the legal framework and to ensure the rule of law.

It seems that the use of these quasi-judicial means of resolving interstate disputes proves effective in the pursuit of a compromise between economic development and environmental protection. In the absence of such mechanisms at a universal level, one should consider inducing such control mechanisms in other regions of the world.

The authors of the present article are fully convinced that the ‘nuclear safety is more of a tool for prolonging or stopping the construction of Ostrovets NPP by increasing its estimate and construction time, than an objective per-se’.⁵²

In summary, Lithuania’s scepticism towards the nuclear safety of the Ostrovets NPP can be explained by both objective and subjective factors. It must be noted that the non-compliance mechanisms operating within the framework of international environmental agreements, despite the above-mentioned positive aspects, also have negative aspects. The discussion of the problem has been delayed for a very long time, which indicates the need to amend the procedure so as to apply these dispute resolution mechanisms efficiently and in a timely manner. It is absurd to discuss the insufficiency of the Belarussian arguments regarding the justification of the choice of the Ostrovets site a year before the start of the NPP. Moreover, the transition from using a consensus to, now, voting as part of the decision-making process in the Committee undermines the legitimacy of the activities. This fact also needs to be considered when reforming international environmental non-compliance mechanisms.

Legally, this is a situation where a transboundary EIA has been carried out (in expanded format: Lithuania, Austria, Latvia, Poland and Ukraine), but there are questions about the scope of the EIA. There is no comprehensive list of EIA criteria, and further requirements may be considered an abuse of law. In brief, these arguments could be scrutinized as being too speculative.

However, procedural obligations under various international environmental agreements should be considered in the context of Belarussian obligations to the IAEA. The IAEA confirms that the NPP complies with international standards and continues to carry out various missions to control the process in Belarus.⁵³ For consideration of issues related to nuclear energy, it is advisable to contact the IAEA for advice. Belarus conducted two key IAEA nuclear safety assessment missions: the Regulatory Infrastructure Assessment and the Site External Events Assessment (SEED). The Republic of Belarus has also formally invited the Emergency Preparedness Assessment Mission and the Operational Safety Assessment Mission (pre-OSART). There were positive reports from all these missions. For example, in accordance with the report of the IAEA SEED mission, which visited Ostrovets in January 2017, it was concluded that ‘officials had taken the appropriate steps to address all necessary aspects of site safety and site-specific design parameters . . . for relevant external hazards’.⁵⁴

States planning to construct an NPP should consider the potential transboundary nature of the NPP, as well as the negotiations in the conclusion and realization of treaty bodies regarding the details of the conduct and methodology of the EIA. Even after the NPP’s operations begin, it is necessary to continue working on an agreement to ensure sufficient public participation in the post-project analysis.

The publication has been prepared with the support of the “RUDN University Program 5-100”.

Footnotes