Show me the ITER

Please join me in welcoming ITER (Latin for “the way”) as the likely newest entrant to the roster of international organizations (IOs). Signed in Paris on November 21 of last year, ITER is the creation of EURATOM, Japan, China, India, South Korea, Russian and the United States. Its mission gives reality to what had previously been thought of as science fiction — “to demonstrate the scientific and technological feasibility of fusion energy for peaceful purposes.” In other words, in contrast to fission-based power generating facilities that give environmentalists and nuclear non-proliferation experts so much cause for worry, ITER aims to produce here on earth the same energy source that powers the sun. Fusion experiments have been in the works since at least 1985, but this project will actually see if fusion can be used to generate power in a safe, environmentally responsible, and economically viable way. Estimated costs for the project run to $10 billion as it involves building an experimental fusion reactor over the next ten years in Cadarache, in the South of France.

Scientists of course love this stuff, and the ITER web-site has lots of information talking about how the project will produce fusion, etc. But if you dig a bit deeper into the website (see here) international lawyers will find plenty of interest. ITER is an interesting IO in several respects. First, as an organization designed to achieve a concrete goal, it suggests a different object and purpose than many existing IOs who exist to develop, interpret or apply standards or rules for state or non-state actor behavior, rather than a finished product. Thus, ITER will be an IO with a fixed duration – 35 years, with an option for 10 more. Of course, states have cooperated on joint scientific endeavors before (see the Space Station Agreement), but in ITER we find an IO that will oversee the project in lieu of direct coordination among participating states (ITER will operate pursuant to directives from its Council, with a Director-General and staff responsible for day-to-day operations).

Second, ITER clearly shows some great international lawyering. Rather than the constructive ambiguity that sometimes characterizes IO constituent instruments, the Joint Implementing Agreement (JIA) makes an aggressive effort to handle the potentially contentious issues up front. Article 5 clarifies ITER’s international legal personality as well as its domestic legal personality within member states. The obviously important intellectual property issues are addressed in Article 10 and an accompanying Annex. Article 12 provides ITER and its staff with privileges and immunities, while contemplating an additional headquarters agreement down the line. Article 15 provides that liability questions may be governed by the particular contractual arrangements involved in putting the reactor together, but it also anticipates that the organization itself could engender liability for its actions and provides authority for it to provide any requisite compensation. At the same time, the JIA purports to immunize the member states for any liability attributable to the ITER organization. Finally, the JIA actually envisions the project’s end, detailing how the facility will be decommissioned.

Third, for those EU aficionados out there, ITER has something for you too. Here, we have an IO whose membership will include another IO – EURATOM. Now, that happens with some frequency with respect to the European Community, and perhaps increasingly the EU itself, who join IOs as a regional economic integration organization (REIO). But, with a few exceptions (see the North Atlantic Fisheries Organization) the REIO’s competency is shared with its member states who are also members of the IO. In ITER, however, EURATOM purports to represent the EU and its member states, who have no such separate membership. Indeed, given the recent push for the EU to have its own legal personality, it’s interesting that here EURATOM represents the EU rather than having the EU represent itself (which I assume can’t happen until the Treaty on European Union is further revised to reallocate authority among EURATOM and the EU).

To enter into force, ITER will require the ratification, acceptance or approval of all seven signatories. This should not be a problem for the United States, since Congress has already authorized US participation via Section 972(c) of P.L. 109-58, provided the Executive Branch makes several reports to Congress and does not expend funds on ITER until certain periods of time have passed (not as strange a set of requirements as you would think; past legislation supporting a variety of fisheries and nuclear agreements have included similar provisions). So, keep an eye out for U.S. acceptance of ITER sometime in the near future. And, for those of you interested in IO’s, see if ITER gives you a new “way” to think about them.