The terrible tragedy of Japan’s failed nuclear reactors continues at this writing, and raises questions that nearly everyone alive would like answered. Each nation and geographic area has its own stories and concerns, from broken monitoring equipment in California to Germany’s announced decision not to develop nuclear power further. Then, we have a couple reactors sitting on a fault line-California again, close to mega population centers. And France, unfortunately, deep into nuclear power. Boy, what a good time to be in Norway. And time for a re-think? You betcha.
I was a bit curious, and had already been looking into the international law of the environment for other research and writing reasons. So I turned around and grabbed the book, International Law of the Environment, edited by Patricia Birnie, Alan Boyle and Catherine Redgwell, Oxford University Press (2009). Here are some of my resulting notes, in case you are interested.
State responsibility for nuclear-related damage is found under two different theories. The first is strict or absolute responsibility, which makes a State responsible for damages caused, purely on the basis of the ultra-hazardous character of nuclear installations. The point of this, from a litigation standpoint, is that States would have the role of guarantors for the operators and companies that caused the damage. The burden of proof would fall on the State, therefore, to show that it should not be held liable. However, as Birnie et al. note, ‘Conventions are still considered weak’ (517).
The second theory is that the State is liable for a breach of their obligation, which is diligent control. Under this theory, there is no discussion of fault, and so this approach eliminates the need to discuss the subjective elements of intention or recklessness. Despite this, there does seem to be a difference in the treatment of damages due to, for example, dumping, and those due to unintended releases.
In 1990, the IAEA established the Standing Committee on Liability for Nuclear Damage. This resulted in suggestions to revise the Vienna Convention on Civil Liability for Nuclear Damage. Some States agreed that strong revisions were needed, while others were opposed, stalemating effective action in important areas. What was agreed was that a publicly-funded compensation scheme should be implemented. The State with the problem installation would provide limited funding to that, while other States would contribute, “up to a ceiling.” Birnie et al. cite the 1997 Convention on Supplementary Compensation for Nuclear Damage,
as well as the “2004 Protocol to the Paris Convention”
To conclude, the authors forecast that, due to uncertainty in the prevailing laws, parties to a new problem would turn to the schemes outlined in these agreements, and noted, also, that “non-party claims are possible” (520).
So where’s this Fund? And when is Japan going to put some new money into it?