On 26 April 1986, now thirty years ago, a vast accident happened in a nuclear powerplant in Chernobyl, Ukraine (formerly the Soviet Union).  The fire in unit 4 of the nuclear power plant released massive amounts of radioactive material into the air. The nuclear accident at Chernobyl is the worst of its kind in human history and even worse than the Fukushima Daiichi nuclear disaster which happened in 2011. The Chernobyl disaster was a tragedy which had severe negative environmental, health and socio-economic effects. The nuclear tragedy impacted on more than 300,000 lives. The accident contaminated large areas of Ukraine, the Russian Federation and Belarus with radioactive materials. In fact, all countries of the northern hemisphere have been reported to be effected by this nuclear disaster. According to a WHO report, 4000 people could eventually die of radiation exposure from the Chernobyl disaster.

The Chernobyl nuclear tragedy had a tremendous impact on the global community. This nuclear disaster has changed the attitude of nations to nuclear safety. After the nuclear accident, new standards and strategies for improving nuclear and radiation safety, emergency response and disaster mitigation have been developed. Since the Chernobyl accident the International Atomic Energy Association (IAEA) has adopted many security related legal instruments have been adopted to increase nuclear safety and security on a global and domestic level.

Before the Chernobyl nuclear disaster, nuclear energy law consisted mostly of international technical recommendations, which were not binding unless they were incorporated in domestic law or bilateral or multilateral treaties. [1]

Since the Chernobyl nuclear accident the legal framework for nuclear energy, nuclear safety and nuclear security evolved significantly. Nuclear safety is above all a responsibility of individual states. However, international cooperation is also necessary.  The result of a nuclear accident could be transboundary and therefore is likely to impact other countries as well.

The IAEA expanded safety standards to enhance nuclear safety. And since 1986 several important international legal instruments have been adopted to enhance nuclear safety and emergency preparedness and response, such as the Convention on Nuclear Safety. The IAEA also has established a peer review system, which means that international teams of experts will advise countries on nuclear safety, operational safety, design safety, emergency preparedness and response and regulatory effectiveness.

In spite of the development of the international legal framework regarding nuclear safety and security, emergency preparedness, nuclear accidents can still take place. The nuclear accident at the Fukushima Daichii nuclear power plant in Japan in 2011 proves this. Even in a technologically advanced country with a developed nuclear program like Japan such accidents happen. After Fukushima new initiatives under the auspices of the IAEA have taken place to enhance nuclear safety.

The Chernobyl accident of 1986 also had an impact on the nuclear liability regime - the nuclear disaster exposed the weaknesses of the existing nuclear liability laws. With the existing legal framework it was not possible to award legal damages to injured parties (individuals and states). It was clear that the existing legal framework needed to be changed (Convention on Third Party Liability in the Field of Nuclear Energy (Paris Convention, 1960), which was mainly signed by Western European countries and Vienna Convention on Civil Liability for Nuclear Damage (Vienna Convention, 1963) which was mainly signed by Eastern European countries). Liability thresholds were low at that time and needed to be adjusted.

In order to harmonize the existing legal framework, the IAEA and the OECD created a bridge between the Paris and the Vienna Conventions by adopting the Joint Protocol (1988) . This protocol became effective in 1992. The Joint Protocol ensures that there won't be a conflict between the two conventions - only one of the two conventions will apply to a nuclear incident. Which convention is applicable is determined by the territory where the liable nuclear operation is located. The convention to which the liable state is a party, is deemed applicable to the situation at hand. The amount of its liability is also determined by the same convention. Unfortunately, many nuclear power states have not ratified the legal instruments that have been updated and created since 1986. It is said that a lack of harmonization and progress in this area is perhaps also due to a different approach of the two most important nuclear power states to the legal reforms; the United States of America and France [2].

The Fukushima nuclear disaster of 2011 underlined that in spite of the progress that was made until then, there still was no reliable legal framework, no universal harmonized legal regime.  As a result of the Fukushima disaster, the IAEA adopted a Draft Action Plan on Nuclear Safety that same year. The IAEA asks member states to work on establishing and implementing an effective global nuclear liability regime:

"Member States to work towards establishing a global nuclear liability regime that addresses the concerns of all States that might be affected by a nuclear accident with a view to providing appropriate compensation for nuclear damage. The IAEA International Expert Group on Nuclear Liability (INLEX) to recommend actions to facilitate achievement of such a global regime. Member States to give due consideration to the possibility of joining the international nuclear liability instruments as a step toward achieving such a global regime."

Since the Chernobyl nuclear disaster, certain progress has been made in the field of international nuclear liability law. But in order for the international legal framework to become more effective, a revision concerning the financial responsibility for nuclear accidents is seriously needed. In order for a harmonization and an effective global legal framework for nuclear liability law, it is also necessary for nuclear power countries to ratify the international legal instruments and to comply with and implement the legal nuclear liability framework and IAEA strategies, such as the Draft Action Plan on Nuclear Safety.

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Guttry, A., International disaster response law, Asser Press, The Hague, 2012

 

 

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