Issues relating to Payment of Compensation post-Nuclear Disaster: Concept of Liability
The development of nuclear industries has been on the rise as technologies keep advancing in this modern era of science. With development of such industries also develops uncalculated amount of risks of nuclear disasters which have the potential of trans-boundary effects. In this situation it is imperative that states formulate laws which govern the civil liability for nuclear damages. However, the laws formulated, often times, do not apply to compensation for any other damages than that of the nuclear damages meaning that companies often times get away with only paying the compensation for the damages caused by the accident and nothing of the aftermath like the victims who are affected or anything except for the nucleus. In circumstances that like this it is necessary to address the issues related to payment of compensation.
The conventions dealing with Nuclear Safety and Nuclear Security mainly deal with what the State has to do visa vie the individual that are subject to its jurisdiction or the entities that are subject to its jurisdiction. Thus these conventions are viewed from a public law aspect as it deals with the relationship between state and its subjects whereas, Civil Liability for nuclear damages deals with what we call 'private law' because they deal with relations between individuals. Thus it can be understood that the conventions on Nuclear Liability are about how an individual who has suffered damage can be compensated not by resorting to the state but by resorting to the entity which could be a public entity but grows to be a private entity that was operating a nuclear installation which has somehow caused a nuclear incident.
Nuclear Liability is a complicated subject. It is quite complicated than Nuclear Safety as in Nuclear Safety we have one convention dealing with the safety of nuclear power plant, one convention dealing with the safety of spent fuel management and with the safety of radioactive waste management, one convention dealing with physical protection of nuclear material and so on. But in Nuclear Liability we have many different conventions differing in each stance.
When we talk about nuclear liability and nuclear safety, we say that there are at least two important conventions dealing with the same thing and in an ideal world there shouldn't be two conventions, there should be only one dealing with the both because the subject matter that they regulate is the same but for historic reasons and for other reasons we have two conventions and this complicates the legal situation. The main objective of Nuclear Liability is to establish a minimum common standard of legal and financial protection against the damages resulting from the peaceful uses of nuclear energy through synchronization of national/private rules dealing with civil liability for nuclear damages. An effective nuclear liability regime should assure adequate compensation and provide legal certainty for commercial arrangements.
HISTORICAL DEVELOPMENT OF NUCLEAR LIABILITY
The first convention on civil liability for nuclear damages was adopted within the legal framework of OECD (Organization for Economic Corporation and Development) after the World War II is the 1960 Paris Convention which was very soon supplemented in 1963 by another convention which is called the Brussels supplementary convention which is not about nuclear liability however it can be understood from generic sense that the 1960 convention was the first convention containing rules that all state parties had to put in their national private law to regulate issues of civil liability for nuclear damages.
In 1963 another similar convention, though less detailed was adopted namely the Vienna Convention on Civil Liability for nuclear damage. However there was a slight glitch, on one hand, the 1960 Paris convention was only open to members of OECD or other parties agreeing to it and on the other hand, the Vienna Convention is open to all members of the United Nations. Thus, naturally it was expected for nations to have one convention i.e. the Vienna Convention since it was open to all and Paris convention had yet not come to force, but the nations didn't agree to it and instead two conventions came to force, each of which is binding to for its own parties none of the state parties who are a part of Vienna are a part of Paris and vice-versa which has created two ways of implementing the same thing.
Since the early development of nuclear industry it was felt that there was a need for binding rules on civil liability for nuclear damage at a time when there were no treaties dealing with nuclear safety or with nuclear security. Thus the convention on physical protection was only adopted in 1977, similarly, the conventional nuclear safety were only adopted after the devastating Chernobyl nuclear incident in 1986. From this we can see that already in the early stages of nuclear industry development it was felt that there was a need because of the potential trans-boundary effects of a nuclear accident. It was also felt that it was impossible to leave states free to regulate how to compensate nuclear damage therefore we needed to have same rules applying in every state and that is why the conventions were adopted at that time.
POST-CHERNOBYL PERIOD IN ADDRESSING THE CIVIL LIABILITY FOR NUCLEAR DAMAGES
After Chernobyl however, a number of issues arose regarding the effectiveness of these conventions, one of them was that a number of nuclear states were not parties to any of these conventions, this was made crystal clear by the accident that occurred in Soviet Union at the time which was not a party to any of the conventions so the conventions played no role in the compensation of damage caused by the Chernobyl accident. Another issue was the definition of nuclear damage because it was felt what was covered by the two conventions was not enough in particular because since the early sixties the concept of environmental damage had emerged and there were those who said we need to cover environmental damages as well. Thus an outcome of all of this was in 1997 when an addition of protocol to amend the Vienna Convention was added. Similarly in 2004, Protocols revising the Paris and Brussels Convention were adopted.
Thus, after continuous discussions and conventions, today we agree commonly seven principles of Nuclear Liability in conventions. They are namely, Exclusive liability of the operator, Liability without Fault, Minimum amount of Liability, Mandatory Financial Coverage, Limitation of Liability in Time, Non-Discrimination and finally, Exclusive Jurisdictional Competence. These all principles can be found explained through various articles in the conventions concerning liability for nuclear damages.
Thus it can be understood that Civil Liability for Nuclear Damages which fall under the arena of Nuclear Liability is a complex and much debated topic even till now because majority nuclear liability acts around the world and even more so after the Fukushima Incident in Japan, have been drafted in a way so as to favor the companies and not the victims. In other words, the payment of compensation for victims is still an issue as majority of laws governing the liability for damages are not victim centric but company centric which is an issue as even today so many people are refugees in their own country because their homes were destroyed by the nuclear accident done by a companies and yet the victims have been re-victimized. The international legal framework does guide the countries but they have not been effectively implemented in the national laws and even though peaceful nuclear technologies are permitted, it doesn't mean they are not dangerous.
[i] Progress towards a global nuclear liability regime, Nuclear Law Bulletin No.93, Vol- 2014/1, pg-9, Nuclear Energy Agency, OECD (2014).
[ii] Paris Convention on Third Party Liability in the Field of Nuclear Energy, Nuclear Energy Agency, OECD (29 July 1960).
[iii] Vienna Convention on Civil Liability for Nuclear Damage, International Atomic Energy Agency, Vienna (21 May 1963).
ABOUT THE AUTHOR
This blog has been authored by Prashamsa Ghimire who is a 1st Year B.A., LL.B. (Hons.) student at National Law College, Tribhuvan University, Nepal.
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