Summary
Updating International Nuclear Law
See the full content of this document
Extract
The problems and gaps in the nuclear liability conventions and an analysis of how an actual claim would be brought under the current existing treaty regime in the event of a nuclear accident.
I. EXECUTIVE SUMMARY
This paper addresses the problems and gaps in the existing nuclear liability conventions and conducts an analysis of how an actual claim would be brought under the current existing treaty regime in the event of a nuclear accident. The nuclear liability conventions have been described with some justification as forming a very complex labyrinth. However since the Labyrinth was an elaborate maze to hold the Minotaur, the description may mislead. In this case, it could be said that the Minotaur largely constructed the labyrinth. The international nuclear liability regime is extremely patchy, complicated and features sparse participation. While the recent amendments to the Vienna and Paris Conventions are much heralded, they are heavily hedged with exceptions and the amended Protocols enjoy even more sparse participation than the original Conventions. Others, such as the Convention on Supplementary Convention, are not in force; and for those that are in force, many major nuclear countries are not party to them. So discussion of Conventions must take into account their membership. Characteristics of the system include that no neutral tribunal is provided and claimants are generally required to file claims in the courts where the nuclear installation is located, even with respect to nuclear transports on the high seas, with attendant costs, concerns about neutrality of the courts and law, and limitations of recoverable damages. Liability is limited in time and in amount, amounting to a subsidy of the nuclear industry; the definition of damage is narrow and likely to be interpreted by the courts of the installation state; and the treaties that are there enjoy very narrow participation. The value of these features to victims of nuclear accidents and to non-nuclear States is limited. While unlimited liability may lead to the ruin of the operator, limited liability may lead to the ruin of the victim. Other arguments are that the capacity of the insurance market is limited. Non-nuclear States and others may question why they or the environment at large should be subjected to risks which exceed the capacity of the insurance market. Similarly, with respect to the limitation of time, the existence of radiation may not be known, consequences may not be manifested until later generations, and even when they are manifested, the causes may not be known or may be difficult to prove. Thus even a thirty year time period may be too short for claimants, and ten years clearly would be too short for claims for inter-generational injury. Other barriers to justice exist, such as high legal costs, security for costs, liability for costs of the opposing party, access to legal aid and standing requirements, particularly to defend the environment, as opposed to property interests. Groups acting in the general interest and to protect the environment should have standing, as should groups representing fishing interest, farmers and communities. The burden of proof and causation issues may place insurmountable barriers on claims, as they have in past cases in the United Kingdom. Three frequent concerns of non-nuclear States, being terrorist attacks, environmental damage and pure economic loss, are all likely to fall within exceptions. The 1997 Vienna Protocol introduces a poorly defined exception for military installations. There are also some significant pitfalls in joining the Conventions, in exposing Parties to low limits in other Conventions. The absence of explicit provisions on standing raise questions on the ability of groups to act to protect the environment. The 1997 Vienna Protocol does explicitly extend the geographical coverage of damage covered, covering damage 'wherever suffered', but leaves jurisdiction in the Installation State; and while it extends the definition of damage, it leaves much discretion to the laws of the Installation State. Economic loss arising from loss of life, any personal injury or any loss of, or damage to, property is covered, but economic loss other than that specified in the new definitions is only covered if permitted by the law of the competent court, which will usually be the Installation State. So economic loss to tourism and fisheries, for instance, which is not arising from damage to property or personal injury as such, may well not be compensated. So-called 'rumor damage', or economic loss caused by an incident without necessarily being predicated on actual contamination, is no less real for the lack of contamination. The 1997 Vienna Protocol does introduce preventive measures, but if nuclear damage has not yet occurred, these measures can only be taken where there is a 'grave and imminent threat'. Costs of reinstatement of the impaired environment are covered, provided the impairment is significant and reinstatement measures are actually taken. So where reinstatement is not possible, compensation may not be forthcoming. The limitation of compensation to ...See the full content of this document
Sponsored links
