State responsibility and liability for nuclear damage.

• Author: Kiss, Alexandre
• Position: Updating International Nuclear Law

1. INTRODUCTION

   States are responsible for violations of the rules of international law that can be attributed to them. (3) As a matter of customary law, reaffirmed by the UN International Law Commission, breach of an international obligation gives rise to an independent and automatic duty to cease the wrongful act and to make reparation. (4) The question of state responsibility and liability for nuclear damage raises specific questions which must be examined in the general framework of international legal rules related to responsibility and liability. This paper will discuss the most relevant rules adopted in this field by the UN International Law Commission and analyzes first, the question of whether and how far such rules can be applied to the violation of general, mostly customary rules of international law, and second, breaches of treaties related to nuclear activities and damage caused by such activities.

2. NUCLEAR ACTIVITIES AND OBLIGATIONS NOT TO CAUSE TRANSBOUNDARY ENVIRONMENTAL DAMAGE

   According to the International Law Commission, every internationally wrongful act of a State entails the international responsibility of that State. (5) A wrongful act is defined as State conduct consisting of an action or omission attributable to the State and constituting a breach of an international obligation of that State. (6) Thus, the first question to ask is whether nuclear activities can constitute a breach of international obligations. Two hypotheses must be examined in this regard. The first concerns the effects that such activities can produce outside the territory of that State. The second question is whether international legal rules prohibit or limit nuclear activities in the absence of any transfrontier effect.

   The answer to the first question can be found in customary international law rules, initially formulated in the 1941 arbitral sentence handed down in the Trail Smelter Case between the United States and Canada. The arbitration tribunal declared that:

   [U]nder the principles of international law ... 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. (7) In 1949, the International Court of Justice in the Corfu Channel Case affirmed that no State may utilize its territory contrary to the rights of other states. (8) Finally, an arbitral award between France and Spain alluded to the violation of the rights of other states that may result from pollution of boundary waters. (9)

   Based on such precedents, the principle of state responsibility for transboundary harm has been proclaimed by numerous international texts. Principle 21 of the Declaration adopted by the 1972 Stockholm Conference on the Human Environment stresses that states have the responsibility to ensure that activities under their jurisdiction or control do not cause damage to the environment of other states or areas beyond national jurisdiction. (10) The Declaration on Environment and Development, adopted by the 1992 Conference held in Rio de Janeiro reaffirms the same principle (11) which can also be found in various global environmental conventions including the 1982 Convention on the Law of the Sea (12) and the Convention on Biological Diversity (13) to which virtually all the States of the world are contracting parties. Finally, the International Court of Justice recognized in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, "[t]he existence of 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." (14)

   This statement was repeated in the judgment concerning the Gabcikovo-Nagymaros Project, in which the International Court of Justice also recalled that it has "recently had occasion to stress ... the great significance that it attaches to respect for the environment, not only for States but for the whole of mankind." (15)

   Principle 13 of the Declaration of the Conference on Environment and Development held in Rio de Janeiro in 1992 calls on states to "cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction." (16) Several international conventions also invite states to cooperate in the formulation and adoption of appropriate rules and procedures for the determination of liability and compensation for damage resulting from violations of obligations under their provisions. (17)

   In addition to general international law rules imposing the duty to respect the environment in transfrontier relations, a series of international treaties either prohibits certain nuclear activities or includes prescriptions concerning such activities.

3. INTERNATIONAL TREATIES RELATED TO NUCLEAR ACTIVITIES

   1. Prohibition or Regulation of Nuclear Activities

      One of the oldest treaties prohibiting nuclear activities is the Antarctic Treaty adopted in Washington, D.C., on December 1, 1959. (18) Article V of the Antarctic Treaty prohibits any nuclear explosions and the disposal of radioactive waste on the sixth continent. (19) Still, the same provision leaves the door open under certain conditions for the conclusion of international agreements concerning the use of nuclear energy, including nuclear explosions and the disposal of radioactive materials. Another general prohibition concerns outer space: placing objects carrying nuclear arms on the moon or in orbit around the moon is forbidden by the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies of December 5, 1979. (20)

      Most international nuclear regulations concern nuclear weapons. In 1995, the UN General Assembly asked the International Court of Justice for an advisory opinion on the legality of the threat of use of nuclear weapons. (21) The Court answered the request but reached its conclusions after some difficulty. First, it found by a vote of 11-3 that neither customary nor conventional international law prohibits nuclear weapons as such. (22) According to the Court, however, "threat or use of nuclear weapons should ... be compatible with ... the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons." (23)

      The Court noted that certain treaties prohibit the use of nuclear weapons in specific geographic areas, but none of them prohibit the threat of use of nuclear weapons. (24) It added, however, that "the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict and, in particular the principles and rules of humanitarian law." (25)

      The Court further recognized "that the use of nuclear weapons could constitute a catastrophe for the environment" which does not represent "an abstraction but ... the living space, the quality of life and the very health of human beings, including generations unborn." (26) Given this, the Court held that "States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives." (27) The Court also referred to provisions of Additional Protocol I to the 1949 Geneva Conventions, embodying "a general obligation to protect the natural environment against widespread, long-term and severe environmental damage." (28)

      Nearly all states of the world are party to the oldest international treaty prohibiting specific nuclear activities, the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, adopted in Moscow on August 5, 1963. (29) Five years later, the Treaty on Non-Proliferation of Nuclear Weapons (Non-Proliferation Treaty) obliged each state having no such weapons to ensure that nuclear materials, equipment, facilities and information are not used to advance military purposes. (30) The Non-Proliferation Treaty requires the more than 175 contracting states to accept international safeguards under the supervision of the International Atomic Energy Agency (IAEA), created in 1956 in order to hasten and increase "the contribution of atomic energy to peace, health and prosperity throughout the world." (31) The IAEA Statute provides for reporting requirements, installation of monitoring equipment, and on-site inspections. (32) More than 145 States have entered into bilateral safeguard agreements with the IAEA. (33) In addition, several regions of the world have declared themselves nuclear weapons-free zones. The use of nuclear energy for peaceful purposes is, however, admitted. (34)

      The adoption of the Comprehensive Nuclear Test-Ban Treaty in New York on September 10, 1996 provided an important step forward in international nuclear regulatory law. Even though this treaty is not yet in force, practically all states signed and a large majority also ratified it. (35) The basic obligation it imposes upon the contracting parties is not to carry out any nuclear test explosion and to prohibit and prevent any such nuclear explosion under its jurisdiction or control. (36) Furthermore, parties also must "refrain from causing, encouraging, or in any way participating in the carrying out of any nuclear weapon test explosion or any other nuclear explosion." (37) This treaty additionally established the Comprehensive Nuclear Test-Ban Treaty Organization in order to ensure the implementation of its provisions. (38)

      Many other international regulations of radiation aim to safeguard human health and life. These...