Liability and compensation for harm caused by nuclear activities.

• Author: Van Dyke, Jon M.
• Position: Updating International Nuclear Law

1. INTRODUCTION

   The body of customary international environmental law has its foundation in cases such as the Trail Smelter Arbitration, (2) which utilized the no-harm rule and the polluter-pays principle, and it is now drawing upon more specific norms that build on these earlier rules, such as the precautionary principle and the principle of sustainable development. The specific obligation to provide restitution and compensation when nuclear activities cause injuries has been recognized repeatedly and is now certainly part of customary international law. But problems remain regarding how to measure damages, how to implement the duty to repair the injuries, and what specific obligations exist to protect neighboring states from transboundary pollution.

2. RESPONSIBILITY FOR TRANSBOUNDARY INJURY TO PERSONS, PROPERTY, AND THE ENVIRONMENT

   1. The No-Harm Rule (Sic Utere Tuo Ut Alienum Non Laedas--One Should Use One's Property So As to Avoid Injuring Others)

      Customary international law requires states to ensure that activities under their jurisdiction do not cause damage to the resources, people, or environment of other states. This principle was applied in the Trail Smelter Arbitration (3) and has been repeatedly embodied in later treaties, conventions, and international decisions. The United States brought an action against Canada for sulfur dioxide emissions produced by a smelter in Trail, British Columbia, which damaged private timber and agricultural property in Washington State. The International Joint Commission, established by the Boundary Waters Treaty of 1909 between the two states, arbitrated the dispute. It held Canada liable for more than $350,000 in damages and ordered Canada to refrain from causing further damages. The Commission examined international decisions as well as disputes between U.S. states, because the arbitration agreement indicated that U.S. law could be considered. Based on these precedents, the Commission concluded that "no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence." (4)

      The responsibility of Canada in the Trail Smelter Arbitration did not result from any intentional or invidious action taken by Canada, and wrongful intent was not necessary for the activity to become "an internationally wrongful act." Canada's responsibility flowed simply from its breach of a duty it owed to its neighbor, a duty to prevent activities within its jurisdiction from causing harm to persons, property, and the environment of the United States. One commentator explained that the earlier efforts of the International Law Commission to differentiate between lawful and unlawful acts were based on a false dichotomy and led to a non sequitur:

      The fact that operating a smelting plant is permitted by international law does not necessarily mean that all acts committed in the course of that activity are permitted by international law: the activity of operating a smelting plant is lawful, but the act of discharging fumes from that plant is not lawful. The discharge of fumes arises out of an activity which is permitted by international law, but the discharge itself is an act which is not permitted by international law. (5) In its more recent 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts, the International Law Commission has recognized that international liability does not require wrongful intent, and it now defines "internationally wrongful act of a State" in the following simple terms: "There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State." (6) The Commentary to this article explains that "[c]ases in which the international responsibility of a State has been invoked on the basis of an omission are at least as numerous as those based on positive acts, and no difference in principle exists between the two." (7)

      The International Court of Justice (ICJ) recognized state responsibility for damage to one country caused by activities within the jurisdiction of another country in the 1949 Corfu Channel Case. (8) The United Kingdom brought a claim against Albania when two of its warships were damaged by mines in the Straits of Corfu within Albania's territorial waters. Albania was aware of the dangers but did not announce the existence of the mines. In holding Albania responsible, the ICJ held that it is "every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States." (9) This case is particularly significant because it speaks in terms of an "obligation" on the part of Albania to ensure that others are not injured by dangers within its jurisdiction, and because the United Kingdom vessels knew that dangers lurked in the Corfu Channel when they sailed through. The Court ruled that the responsibility of Albania was not in any way reduced because the U.K. ships may have been contributorily negligent in sailing through these waters. (10)

      The 1972 U.N. Conference on the Human Environment, also known as the Stockholm Conference, formally adopted the no-harm principle for environmental damage. The purpose of the Stockholm Conference was to "serve as a practical means to encourage, and to provide guidelines for, action by governments and international organizations designed to protect and improve the human environment, and to remedy and prevent its impairment, by means of international co-operation." (11) It confirmed the Trail Smelter holding in Principle 21, stating that:

      States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. (12) Principle 21 has developed into "the cornerstone of international environmental law," (13) and was confirmed again in Principle 2 of the Rio Declaration, which emerged from the 1992 Conference on Environment and Development. (14) This principle has become important because "as it has been applied in subsequent law-making, [it] requires states to do more than make reparation for environmental damage. Its main importance is that it recognizes the duty of states to take suitable preventive measures to protect the environment." (15) This duty is thus one of exercising both due diligence and harm prevention. (16)

      The obligation of due diligence "requires the introduction of legislation and administrative controls applicable to public and private conduct which are capable of effectively protecting other states and the global environment, and it can be expressed as the conduct to be expected of a good government." (17) The due diligence standard has sometimes been criticized as elusive and too flexible, and it necessarily is relative and responsive to the situation requiring "diligence." One scholar has explained that "during the course of legal development," due diligence "has been defined to mean what a responsible government should do under normal conditions in a situation with its best practicable and available means, with a view to fulfilling its international obligation." (18) But, even though the response of a government will vary depending on its abilities to respond, when the government itself is involved in the risk-creating activity, either as initiator or as regulator of it, its responsibility to protect the interests of its neighbors is necessarily at the highest possible level: "When an activity bears a significant risk of transboundary damage the government must take all necessary measures to prevent such damage." (19)

      The no-harm rule can be found in Article 194(2) of the 1982 U.N. Law of the Sea Convention (20) and in the Preamble of the 1992 U.N. Framework Convention on Climate Change, which says:

      Recalling also that States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. (21) The International Court of Justice said explicitly in 1996 that "the general obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control is now part of the corpus of international law relating to the environment." (22) Claims for transboundary harm can be brought based on several distinct theories:

      Nuisance, which refers to excessive and unreasonable hindrance to the private utilization or enjoyment of real property... Trespass .... direct and immediate physical intrusion into the immovable property of another person ... Negligence ... IT]he doctrine of public trust ... and that of riparian rights ... [N]eighborhood law (duty of owner of a property or installation, especially one carrying industrial activities, to abstain from any excesses which may be detrimental to the neighbour's property) ... (23) The claim brought by Australia and New Zealand against France in the early 1970s challenging the atmospheric testing in French Polynesia, (24) for instance, was based on a theory of trespass, i.e., that the radionuclides produced by the testing entered into the airspace of Australia and New Zealand thereby causing...