Nuclear Law After Chernobyl: A Step in the Right Direction?

Saturday, 26th April 1986, 1:23:58am local time, Pripyat, present day Belarus: the worst nuclear disaster to date. The Chernobyl Nuclear power station reactor number 4 saw a meltdown releasing several tones of radioactive dust into the atmosphere over an unsuspecting population and the world.

The Radiological nature and society’s inability to fully control and even understand the full consequences of a disaster has made – even 25 years on Chernobyl the turning point in our world’s history.

This singular event was responsible for the slew of agreements that rapidly followed the nightmare come true.

While the risks were theoretically discussed, Chernobyl was probably the first set of fatalities that occurred after Hiroshima and Nagasaki.

The difference being that Chernobyl was a civilian power installation.

Russia’s stone walling, denial and outright lies to the international community forced the international community to act with determination and with speed. Lacunae in laws were identified and in the horrific wake of this accident, pushed through a number of conventions governing notification, warning, assistance, liability, compensation, nuclear safety and the physical protection of the nuclear materials and installations.

Even though Chernobyl forced the world to pay attention to the dangers of nuclear power, sadly today its lessons are being forgotten. Many countries have not accepted certain conventions and still do not govern their nuclear installations according to international standards

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Several aspects regarding the way the crisis and its consequences were handled made the international community realize the lacunae in the laws in force during that time. This lead to a change in the way people regarded the laws governing the use of nuclear power and led to several new conventions.

There was a radical shift in the way the international community regarded nuclear disasters. Earlier they were thought to be matters of national concern; however the trans-boundary nature of the Chernobyl disaster made them re evaluate this position. The trans-boundary nature refers to the tendency of the radioactive emissions move through the atmosphere.

The International Atomic Energy Agency (IAEA) had, even before Chernobyl, begun framing multilateral agreements on international cooperation or emergency assistance in case of a nuclear accident. This had begun after the Three Mile Island accident in the USA in 1979. However these agreements were eventually considered as being unattainable.

Chernobyl provided a catalyst for these agreements and others to be framed and accepted. Within 4 months of the accident, the following conventions were successfully negotiated: The Convention on Early Notification of a Nuclear Accident (the Early Notification Convention) and the Convention on Assistance in the case of a Nuclear Accident or Radiological Emergency (the Assistance Convention). These were some of the first conventions that resulted directly from the nuclear disaster at Chernobyl and were followed by many others.

Chernobyl also caused the international community to assess their readiness and capability to deal with a disaster of this magnitude as the dependency on nuclear energy increased to keep pace with the demands of a developing world.

Another realization that came from the trans-boundary nature of the accident was on the safety of nuclear power plants. Before the accident, there was a general malaise to set binding safety standards for nuclear facilities beyond recommendatory standards.

It was also realized that even though each state that operated a nuclear plant bore full and unequivocal responsibility for safety, the maintenance of this safety was an international issue.

Another very important matter that came to light in the case of a civil nuclear disaster was the question of liability. Who compensates the victims of the accident and for how much and for how long is the core question addressed by many conventions today. Before Chernobyl there were two main conventions that dealt with liability in case of a nuclear disaster; the Vienna and the Paris Conventions. However, as the Soviet Union was not party to either of these conventions, the victims of the disaster did not receive much in the way of compensation. These conventions have now undergone several amendments to make them more wide reaching and inclusive. There is also a Convention on Supplementary Compensation which aims to make more compensation available the victims.

With terrorism on the rise, several states responded to the concern of the security of their nuclear installations by adopting the Convention of the Physical Protection of Nuclear Material in 1979. This convention aims to ensure that states protect their nuclear material during international transport, to make specific acts such a theft or hijacking of nuclear material to be punishable acts, to establish jurisdiction and gives these states the power to detain offenders for prosecution and extradition.

Here we deal in brief with the major conventions that were in place, came about after or were amended after the Chernobyl Nuclear Disaster.

LIST OF CONVENTIONS

(Reference: “Learning the Hard Way: Did the Lessons taught by the Chernobyl Nuclear accident Contribute to improving Nuclear Law?” by Norbert Pelzer)

26th September 1986- The Convention on Early Notification of a Nuclear Accident (the early notification Convention) and the Convention on Assistance in the case of a Nuclear Accident or Radiological Emergency (the Assistance Convention)

21st September 1988- Joint protocol relating the Application of the Vienna and Paris Convention.

17th June 1994- adoption of the Convention on Nuclear Safety.

5th September 1997- adoption of the Joint Convention on the Safety of Spent Fuel management and on the Safety of Radioactive Waste Management.

12th September 1997- Protocol to amend the Vienna Convention on Civil liability for nuclear damage and Convention on Supplementary Compensation for Nuclear Damage were adopted.

12th February 2004-adoption of the Protocol to amend the Convention on Third Party liability in the Field of Nuclear Energy and the adoption of the protocol to amend the Convention of 31 January 1963 Supplementary to Paris Convention of 29 July 1960 on ton Third Party Liability in the field of Nuclear Energy, as amended by the Additional protocol of 28 January 1964 and by the Protocol of 16 November 1982.

8 July 2005- Adoption of the “ Amendment to the Convention on the Physical Protection of Nuclear material”

EARLY NOTIFICATION AND ASSISSTANCE

These two conventions were a knee- jerk response to the Chernobyl disaster and came into force within 4 months of the accident. These conventions were in existence before the disaster but in the form of bilateral agreements between European states and not as an international convention.

The Convention on Early Notification of a Nuclear Accident

This convention seems to have been given this current form as a direct result of the Chernobyl disaster.

When the Chernobyl reactor underwent meltdown, the Soviet Union did not notify their own country of the disaster much less any neighboring country. The first indication of trouble came from Sweden where radiological monitors indicated high levels of radioactivity in the air.

The convention delineates the obligations of the affected states to notify and uniform those states affected or likely to be affected by a nuclear accident.

The convention outlines conditions that are required for the conventions to come into force and various articles outline the definitions for nuclear accident and clarifies that whoever the owner or the operator of the plant is, it is the duty of the state to inform and notify the states.

The article further specifies the various activities and plant such as nuclear reactors, storage, transport etc for agricultural, industrial, medical, scientific and research purposes and the use of radioisotopes for power generation in space objects.

The convention also deals with all the activities and states unequivocally that it is the state to which the reactor, transporting company etc belong to whose duty it is to notify and inform.

However the articles do not deal with the plants and activities dealing with nuclear weapons or their testing. Article 3 is vague as it mentions the duty to inform and notify in case of accidents other than those already mentioned in the convention. This omission could be due to the reluctance of nuclear states to subject their military to international regulations. This article refers only to the duty of notification.

The convention deals with the type of information to be given should such as occurrence, location, assumed cause, characteristics of the radioactive release, metrological, hydrological conditions etc. that will help the neighboring states assess the threat to their own territory. The affected states have a right to ask for further information if required.

The Convention on Assistance in the case of a Nuclear Accident or

Radiological Emergency

This convention is applicable to both nuclear and radiological emergencies. The definition of radiological emergencies however, is rather vague and leads to some uncertainties.

According to Professor Moser the provisions of the convention can be divided into 3 categories:-

The first group is of those provisions that are regarded as fundamental principles because they govern the pre-conditions for and the content and scope of the measures of assistance.

Here the convention states that state parties should cooperate and minimize the consequences of a nuclear accident or radiological emergencies.

The state requesting assistance should state the type of medical aid and temporary relocation of people who the territory of the state giving assistance.

Assistance can also be asked of the IAEA for expert advice and for coordinating international assistance. Assistance can be requested even without an accident for future emergency situations, the requesting state has the responsibility to protect personnel equipment etc. that is brought into the state.

The request for termination is also made by both the state.

The second group relates to the cost of assistance. The assisting state provides assistance without claiming the cost. But partial or complete reimbursement is possible.

Also the state requesting assistance has no claim for compensation against the state providing it, should there be any injury or damage sustained on the territory of both states, in terms of personal injury, property loss or damage to the environment. However, there can be an agreement for compensation, if deemed necessary by both states.

The third group pertains to special provisions for assistance personnel and the state providing the assistance.

This is to ensure that the assistance personnel reach the target location as soon as possible and carry out their duties. Therefore, they are given immunity and special status. They cannot be arrested or detained in connection with the assistance that they are providing. They are immune from legal process and have freedom of movement in and out of the requesting state. The state is free to decide if resident assistance personnel should have the same privileges.

The assisting state is also exempt from taxes and other charges on equipment being brought for the assistance. Import and export of the equipment is the requesting states responsibility. The requesting state is also responsible for the cleanup of any contamination that may have occurred during the time the assistance was being given.

LIABILITY AND COMPENSATION

After Chernobyl, the question of liability and compensation arose. However there were myriad problems associated with this.

As noted by the author Julia A. Schwartz in her paper entitled “International Nuclear Third Party liability law: The response to Chernobyl” -” The magnitude of the accident effects were probably far beyond the financial capability of any authority or party that may have been held liable.”

The problems associated were as follows

Firstly, the extent of damage was seen on several levels. The costs of damages were seen on individual and societal levels and resulted from the loss of life, injury, illness (including psychological stress and other mental problems), property damage, economic loss, damage to the environment and other socio-economic disruptions. Also, since the accident was radioactive in nature and its effects are still felt to this day, the costs would be very high.

Secondly, the trans-boundary nature of the accident resulted in a large population of the Soviet Union being affected as well as neighboring countries and even some states further off.

Thirdly, in 1986, there was no law or provision within the Soviet Union that would have entitled the victims to compensation.

Lastly, the Soviet Union was not party to any international liability and compensation convention under which victims from other countries could claim compensation.

Compensation for industrial risks usually comes under ordinary tort law. However, nuclear accidents were not regarded as conventional industrial risks due to the increased damages. Tort law exposes the nuclear owners and operators to unlimited liability amounts for unlimited time which would make it impossible for them to obtain insurance coverage. Tort law also forces the burden of proof on the victim who has to prove that the nuclear owner and operator’s negligence had resulted directly in damage that the victim is asking compensation for.

The basic principles that form the basis for nuclear liability are:

Strict Liability- “The operator of a nuclear installation is held strictly liable for damage to third parties resulting from a nuclear incident occurring at its installation or during the course of transport of nuclear substances to and from the installation.”1 This principle ensures that the victim need not prove that the owner or operator’s negligence or fault had resulted in the damage. The victim simply needs to prove that there is a causal link between the damage and the accident in question.

Exclusive Liability-states that the operator of a nuclear facility is exclusively liable for the damage to third parties that results from a nuclear incident or during transport of nuclear material. It is the operator who is held liable no matter whose acts or omissions led to the accident in the first place. This makes it easier for victims to claim compensation as they need not prove the identity of the person whose fault the accident was. Also suppliers of goods do not need to defend themselves in costly and complicated liability actions brought about by the victims. They also do not need to purchase expensive third party liability insurance.

Liability is also limited in time, amount and is required to be financially secured- liability claims need to be filed within 10 years of the accident and is limited in amount (as will be seen ahead). Liability needs to be limited in amount otherwise most operators could be exposed to unlimited liability for long periods of time which could bankrupt them. This principle protects the operators and states that beyond a certain limit the operator is not obligated to provide compensation. The operator needs to be financially secured i.e. there should be adequate insurance cover to ensure that the in the event of an accident, a nuclear operator would be able to discharge most of the compensation claims (up to a certain limit)

Liability and Compensation before Chernobyl

Before Chernobyl, it was recognized that an international regime was required to establish liability for nuclear accidents because the consequences of a nuclear disaster would not stop at political or geographical boundaries. It was recognized that an international regime would be required to set rules addressing liability at installations or during transport, decide jurisdiction, eliminate discrimination, ensure uniformity among other things.

There were three main conventions existing at the time of Chernobyl. Sadly, no compensation could be provided to the victims by the Soviet Union as it was not party to any of these conventions at the time.

These conventions were the Paris Convention of 1963, the Vienna Convention of 1963 and the Brussels Convention Supplementary to the Paris Convention.

The Paris convention and the Vienna Convention were rather similar in nature. They both held the nuclear operator to be both strictly and exclusively liable for damage resulting at the installation or during transport of any material. The operator was liable for personal injury including death and for loss of or damage to any property other than property at the installation. These conventions apply only to those party states that have accepted the conventions. According to both conventions, the operators’ liability is limited in time and amount and claims must be filed within 10 years of the date of the accident. There is also a “discovery rule” rule common to both conventions whereby a victim must file the claim within 2 years of discovering the damage. The conventions also state that the jurisdiction over the compensation claims lies with the state where the accident occurred. The conventions also state that for all matters not covered in the conventions, the state courts are free to apply their national law free of any discrimination.

The conventions differ mainly in the amounts that are fixed for compensation. The Paris Convention sets a maximum liability of 15 million SDRs (Special Drawing Rights- a special unit of money) and a minimum of 5 million SDRs. However the Vienna Convention sets only a minimum limit at 5 million USD.

The Paris Convention states realized that the liability amount fixed under this convention would not be adequate to cover the claims. Therefore, a new instrument, the 1963 Brussels Convention Supplementary to the Paris Convention was established to provide additional compensation to the victims.

Liability and compensation after Chernobyl

The Joint Protocol

The two conventions i.e. the Paris and Vienna conventions were in place long before Chernobyl. However, there was no overlap between the two conventions which would have led to party states under one convention being ineligible for compensation under the other convention.

Chernobyl provided the motivation required to establish a formal relationship between the conventions. It was also believed that this would entice a number of other states within Europe to join the Vienna convention extending in the international liability laws through most of Europe.

The Joint Protocol extends to states adhering to it the coverage that is provided under the convention (either Paris or Vienna) to which it is not already a contracting party. It ensures that only one of the two conventions will be exclusively applicable to a nuclear incident.

However, even the Joint Protocol did not assure complete redressal of compensation and liability issues. The Joint Protocol could only ensure a broader scope of nuclear damage and could enable a larger number of victims to claim compensation but only to the extent that the conventions were prepared to go.

Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage

This amendment was clearly designed to ensure that more money would be available to compensate more people for a wider range of damage by nuclear accident and ensure more compliance from both nuclear and non nuclear power generating states.

The amendment ensures more money being available to compensate more victims. The minimum liability was increased from 5 million SDRs to a 300 million SDRs minimum. The minimum amount depending on the damage is 5 million SDRs (the amount fixed is decided by the contracting states) However if the minimum amount is exceeded for damage, then the installation state must ensure that public funds are available to make up the difference to 300 million SDRs. States are free to impose unlimited if they wish. However, financial security limits must be set.

The second facet of the amendment is that it extends the geographic scope so that the convention will now apply to the damage caused by nuclear accidents wherever they are suffered. This does not include non contracting states which has a nuclear installation but does not provide the same benefits to other states. It also allows the claim period to be extended to 30 years instead of the original 10 year period. If the funds are insufficient to compensate all damages suffered, priority must be given to claims as long as they are brought within 10 years of the date of the incident.

The protocol insures personal injury (including death), loss of or damage to property and other damage compensable under the law. With the amendment, 11 additional damages include damage to the environment, economic losses resulting from that damage and the cost of environmental reinstatement, other economic losses consequent upon personal injury or property damage, the cost of preventive measures taken to minimize damage recoverable under a party’s civil liability law.

It also includes a new concept in the definition of nuclear incident i.e. as an “occurrence which creates a grave and imminent threat of causing nuclear damage.” This addition permitted compensation for expenditure in taking preventive measures.

The 1997 Convention on Supplementary Compensation for Nuclear Damage

The SCC holds the earlier principles but also ensures that more victims could be compensated for a wide

r range of damage than ever before.

The amount of compensation is divided into 3 tiers with both national and international funding (should it be required) and is valid for the people living in or around the installation state (where the facility is) and trans-boundary victims.

The convention is a free standing one requiring no previous adherence to either the Paris or Vienna convention. The states must however have legislation that adheres to and reflects the principles of these conventions.

The scope of application of the convention is decided by the two tiers of compensation where the installation state decides the damage to be covered by non contracting states and also the convention prevents the distribution of public money to the victims in non contracting states.

However, this protocol is not very popular and has been ratified by very few countries that have a high generation power.

The convention was also amended to include the even broader rules to attract states that perceive the Paris and Vienna Conventions to be restrictive.

The unpopularity of this convention lies in the following reasons.

One is the preferential treatment given to those victims who suffer damage but are outside the installation state which is seen at being discriminatory.

The other reason is that the countries believe that the Paris and Vienna conventions that are supposed to have the same goals but with different rules, benefits etc have to work together.

2004 Protocols to amend the Paris Convention and the Brussels Convention on Supplementary Compensation

Once these protocols come into effect, they will result in higher compensation and will crystallize the structure of liability.

The Paris Convention will now increase nuclear operator’s liability to 700 million Euro.

The fixing of liability for low risk operators is 70 million euro and for transport is 80 million Euro. In fixing the liability amount as a minimum, states which impose either limited or unlimited liability upon their nuclear operators are allowed to join to the regime. Operators are allowed to provide financial security in the amount for which they are being held liable and those held for unlimited liability, the financial security obligations is limited to either the full minimum or one of the reduced minimum liability amounts.

The Paris Convention Protocol relaxes the previous rules for the definition of the word nuclear accident. It will include several more incidents and territories such as the territory of the contracting party, maritime zones or on board ships and aircraft. The convention will apply to the nuclear damage that has occurred in non contracting states if the state is a party to the Vienna Convention and the Joint protocol. The claims period has also been extended to 30 years. Also there is no “priority” for compensation in case the compensation amount falls short. Here the courts will be given jurisdiction to decide the degree of priority for claims of loss of life and property.

The Protocol will also contain a definition for nuclear damage where it does not refer to other economic losses, which was deemed to be rather vague.

The Protocol for the Brussels Convention on Supplementary Compensation

The amounts for compensation in this protocol are significantly in every tier.

The total amount of compensation available to victims of a nuclear accident under the amended protocol has been raised from 300 million Euros to 1.5 billion Euros.

The formula used to calculate the new contributions for the new contributions for the international tier takes somewhat into account the polluter pays principle

The territory under the protocol eligible for compensation has been increased to include the country’s exclusive economic zone and continental shelf.

The Position of Non Convention States

Despite the incentives made available in most conventions regarding nuclear liability, most nuclear power generating countries are not part of any of the conventions. These countries include China, Canada, India, Japan, Korea, Switzerland and the United States of America which are considered as the most important in terms of nuclear power generation capacity.

The objections to these conventions lie in the fact that these conventions are based on the principle of limited liability which is regarded as unfair by these countries. They believe that limited liability restricts the compensation limits of the victims by setting a cap for the compensation. Some parties believe the ‘exclusive liability’ should not be a principle anymore.

Faults and Imperfections of the current Liability Conventions

One of the major concerns is that there may not be enough insurance in the global market to insure nuclear operators against the revised liability amounts.

The 30 year claim period also poses problems with respect to certain personal injury claims. Coverage is being denied because many cancers manifest several decades after the exposure to radiation and also many of these are indistinguishable from cancers suffered by a normal population. Proving that a specific type of cancer has resulted from a nuclear accident releasing radiation could be difficult if not impossible.

Another concern is that there is no definitive definition for ‘impairment of the environment’. Also the question is that would the operator be responsible for damage that has resulted from a build- up of contamination.

The preventive action claims poses difficulty because of its vague definition which would have led to false claims with high costs.

Lastly, terrorism poses a grave difficulty as it exposes capital to higher risks. Currently, in many countries, terrorism is insured against but only because it is covered for relatively modest amounts, and there are several factors that are used to assess risks such as potential for terrorism etc.

A little realized fact is also that currently, there is no claim for compensation under the international conventions for damage to the nuclear installation itself or any property associated to the site. This forces the operator to assume the risk for loss or damage. It is not clear wherever an operator can sue its suppliers for damages incurred.

India’s Civil Nuclear Liability Bill

India’s parliament recently passed a bill that has made suppliers and builders of atomic reactors potentially liable in the event of a nuclear accident. This law is required so that many of the U.S companies interested in entering the Indian Nuclear power market can obtain insurance in their home states in the event of a nuclear accident.

Originally the bill had set a cap at 5 billion INR for compensation. The nuclear companies were allowed to seek reimbursement from the suppliers for defective equipment and materials.

The bill in this state was vociferously opposed to because many parties within the country felt that the cap of 5 billion INR was insufficient especially with respect to the risks involved. Also the bill was seen to absolve certain foreign companies completely from any sort of legal or financial liability. This, especially after the weak sentencing in the Bhopal Gas tragedy, has made many people wonder if the law is to safeguard the country’s interests or those of the foreign companies. The claim period in the bill was 10 years which is considered a very short amount of time. The bill is also seen to open the market to private companies while giving them only limited liability which is believed to be unacceptable. The bill also has provisions to lower the liability amount of compensation from a private operator. This is seen to be in blatant disregard to the Polluter Pays principle as well as the Precautionary principle that is upheld by the Indian Supreme Court.

After long discussions the cap has now been increased to thrice the original amount and is now set at 15 billion INR for compensation with the Government payable for claims beyond that amount. The law also now holds the nuclear operators liable for all damage irrespective of fault. The law has been passed by the Lok Sabha.

NUCLEAR SAFETY

The Convention on Nuclear Safety

The CNS was opened for signing on 20th September 1994.

The most important outcome of the convention was the formulation of the “Safety Fundamentals” document which serves as the technical manual for all safety considerations in the building, managing and operation of a nuclear plant for any purpose.

The objectives of this document and the purpose of this convention are to ensure:

(Obtained from “The Convention on Nuclear Safety” by Odette Jankowitsch- Prevor)

A general nuclear safety objective: “ To protect individuals, society and the environment from harm by establishing and maintaining in nuclear installations effective defenses against radiological hazards”

A radiation protection objective: “To ensure that in all operational states radiation exposure within the installation or due to any planned release of radioactive material from the installation is kept below prescribed limits and as low as reasonably achievable, and to ensure mitigation of the radiological consequences of any accidents” and as a main goal;

The technical safety objectives: “To take all reasonable practicable measures to prevent accidents in nuclear installations and to mitigate their consequences should they occur; to ensure with a high le el of confidence that, for all possible accidents taken into account in the design of the installation, including those of very low probability, any radiological consequences would be minor and below prescribed limits; and to ensure that the likelihood of accidents with serious radiological consequences is extremely low”

The aim of t