Stichting Laka

Publicatie Laka-bibliotheek:
Conference on the human right to a safe and healthful environment and the responsibilities under international law of operators of nuclear facilities (2005)

Auteur	Duncan E.J. Currie
Datum	oktober 2005
Classificatie	6.01.0.30/31 (AANSPRAKELIJKHEID/VERZEKERINGEN/WETGEVING)
Voorkant

EXECUTIVE SUMMARY

This paper addresses the problems and gaps in the existing nuclear liability 
conventions and conducts an analysis of how an actual claim would be brought 
under the current existing treaty regime in the event of a nuclear accident.

The nuclear liability conventions have been described with some justification 
as forming a very complex labyrinth. However since Labyrinth was an elaborate 
maze to hold the Minotaur, the description may mislead: in this case, it could 
be said that the Minotaur largely constructed the labyrinth.

The international nuclear liability regime is extremely patchy, complicated and 
features sparse participation. While the recent amendments to the Vienna and Paris 
Conventions are much heralded, they are heavily hedged with exceptions, and the 
amended Protocols enjoy even more sparse participation than the original 
Conventions. Others, such as the Convention on Supplementary Convention, are 
not in force, and for those that are in force, many major nuclear countries are not 
Party to them. So discussion of Conventions must take into account their membership

Characteristics of the system include that there is no neutral tribunal provided and 
claimants are generally required to file claims in the courts where the nuclear 
installation is located, even with respect to nuclear transports on the high seas, 
with attendant costs, concerns about neutrality of the courts and law and limitations 
of recoverable damages. Liability is limited in time and in amount, amounting to a 
subsidy of the nuclear industry, the definition of damage is narrow, and likely to 
be interpreted by the courts of the installation state, and the treaties that are 
there enjoy very narrow participation.

The value of these features to victims of nuclear accidents and to non-nuclear States 
are limited. While unlimited liability may lead to the ruin of the operator, limited 
liability may lead to the ruin of the victim. Other arguments are that the capacity of 
the insurance market is limited. Non-nuclear States and others may question why they 
or the environment at large should be subjected to risks which exceed the capacity of 
the insurance market. Similarly, with respect to the limitation of time, the existence 
of radiation may not be known, consequences may not be manifested until later 
generations, and even when they are manifested, the causes may not be known or 
may be difficult to prove. Thus even a thirty year time period may be too short for 
claimants, and ten years clearly would be too short for claims for inter-generational 
injury.

Other barriers to justice exist, such as high legal costs, security for costs, 
liability for costs of the opposing party, access to legal aid and standing 
requirements, particularly to defend the environment, as opposed to 
property interests. 

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