Nuclear accidents: Models for reparation

Abstract

The accidents of Chernobyl and of Fukushima-Daiichi teach the lesson that nuclear accidents may have large-scale catastrophic detrimental and transboundary effects causing nuclear damage of an extraordinary magnitude and of an ‘exceptional character’. In order to cope with those occurrences, a risk-adequate regime of damage reparation has to be available. Reparation for nuclear damage may be provided by different tools (remediation or compensation). In the nuclear field, the civil law ‘compensation approach’ prevails and has been adopted by the international nuclear liability conventions and by national legislations. States refrained from establishing instruments on State liability under public international law. International conventions on civil compensation of nuclear damage have been developed and adopted since the late 1950s: The 1960/2004 [Paris] Conventions on Third Party Liability in the Field of Nuclear Energy, the 1963/2004 [Brussels] Conventions Supplementary to Paris Conventions, the 1963/1997 Vienna Conventions on Civil Liability for Nuclear Damage, the 1988 Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention and the 1997 Convention on Supplementary Compensation for Nuclear Damage. These conventions establish a severe civil liability regime which is particularly tailored for the specifics of compensating nuclear damage. Main elements of this regime are: Liability without fault (strict liability) of the operator of a nuclear installation-exclusive liability of the operator (legal channelling)-limitation of liability in amount and in time-mandatory financial security to cover liability-exclusive competent court-recognition and enforcement of judgements-equal treatment of all victims. While the liability rules are simple there are yet elements which complicate compensation or which are disputable. The nature of the effects of ionizing compensation entails that it is in some cases difficult if not impossible to prove the causal link between incident and damage. This problem cannot finally be solved by lawyers. The amount of money to cover nuclear damage may be insufficient, particularly if States limit liability in amount. There may be reasons for limited liability but nevertheless unlimited liability appears to be the only form of liability which is adequate to the nuclear risk. Legal channelling of liability onto the operator of a nuclear installation is a most disputable concept because it is unjust. But at the same time it facilitates the bringing of claims for victims. Only a minority of States adhere to the international nuclear liability conventions. As a consequence, in cases of transboundary nuclear damage which affects non-Contracting States to the conventions claiming compensation is governed by the uncertainties of the general laws of conflict. A global nuclear liability regime based on worldwide treaty relations is requested. But this request misjudges reality and is disputable. Aiming at regional harmonisation based on treaty relations is a more realistic goal and is more helpful for victims.