25 years after the Chernobyl accident, the international community has had
time to reflect and prepare, more effectively the ways in which it responds to
nuclear accidents. Moreover, at the centre of this reflection is the idea of
protecting its victims and making the process of claiming compensation easier
through various regimes and international liability.
The most important of these regimes are the Vienna Convention, the Paris
Convention and the Convention on Supplementary Compensation. While these
conventions aimed to provide some sort of relief to victims of nuclear
accidents, they received major criticisms from the international community. The
effectiveness of these conventions was truly tested by the Fukushima Daiichi
Nuclear Accident in 2011, that took place in Japan, a country that was not a
party to any of these.
The aim of this paper is to analyze and answer the question of the effectiveness
of compensation and liability through Conventions and their subsequent
amendments both, before and after Chernobyl.
Increasing Use of Commercial Nuclear Power:
The increasing use of commercial nuclear power post the Second World War created
a vacuum in international law. Countries recognized the need for a harmonized
liability system for governance. This lead to international agreements such as
the Vienna and Paris Conventions that set out rules for cross-border legal
actions for easy compensation claims against a nuclear operator in another
The conventions covered myriad issues such as jurisdiction, which laws would be
applicable to the victims. The underlying idea of such regimes was to contribute
to legal certainty with respect to liability. The Paris Convention on Third
Party Nuclear Liability (1960) came into existence under Organization for
European Economic Co- operation (now OECD).
The Vienna Convention on Civil Liability for Nuclear Damage came into force in
1963 with similar principles as the Paris Convention but a wider geographic
The most important features under these conventions are the imposition of strict
and exclusive liability for damage arising out of nuclear accidents. One of the
major drawbacks of both conventions is the cap they put on liability claims. It
is also important to note that these conventions did not apply to nuclear
incidents occurring in the territory of non-contracting states, one of them
being the former USSR. This fact would have major repercussions.
The Chernobyl Disaster
One of the worst nuclear accidents the world has ever seen, the Chernobyl
disaster resulted in damage worth hundreds of millions of dollars. Thousands of
square feet of agricultural land was irradiated, nearby towns had to be
evacuated and the only reason that more people did not lose their lives is that
the factory was in an isolated area. The economic damage was unprecedented.
The effects of radiation were felt across Europe and even reached USA and Japan.
Along with this, the realisation of the costs of damage, loss of life, personal
injury and illness etc., were for the first time, brought into the harsh light.
Extensive coverage has been laid in the damage caused by the accident, however;
very little attention has been on the actual victims of Chernobyl and their
fight to claim compensations wherever they may be situated. The magnitude of the
accident and the consequences arising out of it were beyond the financial
imagination or capability of any or state or international legal entity to be
held accountable for the damages caused.
The lack of special legislation in the former USSR as well as the fact that it
was not a part of the Vienna Convention and Paris Convention meant that the
people affected by the disaster were completely at the mercy of their government
However, it is interesting to note that had the former USSR been a part of
either the Vienna or the Paris Conventions that would have allowed the people
affected to claim compensation, the compensation received would have been
extremely limited. Inevitably, one of the biggest questions raised in the
aftermath of the Chernobyl disaster that was whether the current international
nuclear liability regimes were enough to handle the trans- boundary nature of
major disasters like Chernobyl itself.
One of the major fallouts of the Chernobyl Disaster was that it exposed the
major gaps in the Vienna Convention and Paris Convention. The lack of special
legislation within the USSR and the lack of its adherence to international
compensation regimes meant that the most severely affected victims were left to
the mercy of their governments, domestically and internationally.
Neighbouring countries were unable to hold the former Soviet Union liable for
the damage caused. Another drawback of the conventions that would later become
evident was with respect to the time period within which victims could claim
damages. The period was limited to 10 years- a time span far too small to
compensate victims for intergenerational injury that is a known side effect of
International Response to the Chernobyl Disaster
Post-Chernobyl, the international community rushed to amend the existing
These amendments took place in three stages:
- 1987, 1997 and 2004 Amendments to the Vienna and Paris Conventions: The
hasty effort of bridging the gap between the Vienna Convention and the Paris
Convention led to the establishment of the Joint Protocol that came into
effect in 1992. The benefit of this stretched to the application of either
of the conventions a state may be a party to, provided that they ratify the
Protocol. However, the international community recognized soon enough that
this was not enough to redress the issues of liability and compensation that
were brought to light through the Chernobyl accident. The reform of the
Protocol had to be far more reaching for it to be as effective as it
initially aimed to be.
In this regard, much greater compensation should be available to the victims
of nuclear accidents. Therefore, a lacuna was identified in the
implementation of the Joint Protocol in terms of compensation where it could
only do so to the degree to which Paris and Vienna Conventions states were
prepared to adhere to.
In 1997, the Vienna Convention was amended further. It allowed countries
that were not signatories to the convention to claim compensation under it.
Furthermore, it increased the minimum liability that could be claimed to 300
million SDRs (Special Drawing Rights) that was roughly equivalent to 400
million USD. The period of limitations to bring in claims for increased to
30 years. Russia and Ukraine also became a signatory of the Vienna
Convention in 1996.
In 2004, the Paris Convention was also amended in a similar fashion to the
Vienna amendments which detailed the definition of damage. The amendment
also imposed a minimum liability of 700 million Euros which could be
- The Convention on Supplementary Compensation was adopted in 1997 by the
IAEA. The Convention was supposed to be a tool that all countries could
adhere to regardless of whether or not they were part of any other nuclear
conventions or had nuclear reactors. The CSC was supposed to increase the
amount of compensatory damages that were available to victims of a nuclear
While each of these conventions and their subsequent amendments were done in
order to increase amount of compensation available to the victims, increases the
liability of the operator, and broaden the definition of damages, the
implementation of these was far from satisfying.
- Though the time span within which victims could claim damages under the
Vienna Convention was extended, Russia and Ukraine, two countries that were
most affected by the Chernobyl disaster still have not ratified the
- High legal costs, security for costs, liability for costs, make it very
difficult for the victims to actually claim damages.
- Despite being adopted in 1997, the CSC still had not come into force by
2011, the year the Fukushima Disaster took place. This is because the
minimum number of countries (5) that need to ratify it for it to come into
force still haven’t done so.
- Multiple studies estimate the costs of an average nuclear accident to be
much higher than the limited amount of liability prescribed in the
conventions. Moreover, there are serious differences between the national
legislation implementing the conventions that can lower the liability
amounts. However, even in cases where the amounts have been increased, they
will never be sufficient to cover the average costs of a nuclear accident.
- The Vienna Convention also provides exceptions to damages that have
resulted from armed conflicts, hostilities or civil war. The 1997 convention
also included an exception to grave natural disasters that was later
- The CSC has also been subjected to multiple criticisms. One major
criticism is that compensation can only be claimed within 10 years of the
- Limitations placed on liability in terms of the amount of compensation
that can be claimed as well as statutory limitations on bringing claims,
give favour to the nuclear operators rather than providing protection to the
The Fukushima Disaster:
In 2011, a major earthquake triggered a massive tsunami in Japan. This tsunami
caused widespread damage and led to the meltdown of 3 nuclear reactors at the
Fukushima Daiichi Nuclear Power Plant. As a direct result of this meltdown, over
160,000 people had to be evacuated from their homes.
The presence of the Japanese “Act on Compensation for Nuclear Damage, 1963”
that holds the nuclear operator solely liable for nuclear damage. However, the
Japanese Government was also held liable for the damage resulting from the
meltdown due the element of foreseeability thanks to a 2002 report that included
a possibility of a major natural disaster in the next 20 years.
caused by the disaster are estimated to be more than $100 billion in value.
While the Japanese governments is making huge payouts as compensation to the
victims, the underlying costs are mainly being paid by Japanese taxpayers in the
form of taxes and electricity bills.
Post-Fukushima, the Japanese Government ended up ratifying the CSC post the
Fukushima Disaster in order to encourage experienced US companies help clean up
the radiation from the disaster.
Initially, when the CSC was proposed in 1997, Japan refrained from being a part
of it as Japan’s internal laws governing nuclear activity and its liability
provided superior protection to its victims.
Also, the Japanese government did not anticipate that Japan could be involved in
a nuclear accident with trans-boundary effects, especially when none of its
neighbouring countries were party to either of the Conventions. Japan’s interest
in CSC re-emerged post the 2011 Fukushima incident. It prompted Japan’s
ratification of CSC in 2015 that collectively possessed over 400,000 MW of
installed nuclear capacity. A report produced by the House of Councillors, this
change in position was mainly due to various re-evaluations post-Fukushima in
terms of risks associated with the use of nuclear power and renewed interest in
providing legal predictability for the nuclear industry.
Another emphasis of this report was on the fact that sanctioning the CSC would
make it easier for the United States to aid in the process of clean up at
Fukushima reactor by appeasing the concerns of U.S firms regarding liability. It
further highlighted the effect of ratifying CSC by Japan which would help in
promoting the adoption of CSC in the throughout Asia and in the countries that
were aspiring to become nuclear powers.
Current Stance of Japan on Liability:
Currently in Japan, there are no limitations on liability. However, with the
ratification of the CSC, this is expected to change. This is due to industry
groups that are in favour of imposing limited liability. They are also in favour
of sharing payouts with the general population. This stance is receiving support
from the Japanese Government.
To conclude, the existing treaties work in a way to protect the nuclear industry
from liability over providing adequate compensation to its victims. The path of
constant innovation has almost always been followed by accidents and there can
be very little doubt that there will be more in the future.
As examined in this paper, the current regimes provides evolved principles of
protection following the worst nuclear disaster at Chernobyl however, limitation
on damages, short statutory limitations and poor membership of countries in
various treaty systems is still scarce. The basic motive of the Joint Protocol
has not been fully achieved as a number of States that have nuclear power
programs continue to adhere only to either of the Conventions.
membership remains fragmented with some nuclear powers not a part of any of the
international nuclear regimes and only be governed by their national laws.
Despite Chernobyl and Fukushima, none of the conventions follow absolute
liability even though nuclear disasters are the worst form
of ultra-hazardous accidents.
The exemptions allowed by the Conventions further water down their
effectiveness. This ultimately begs the questions, to whom are these Conventions
are actually catering to?
Ultimately, it is the test of time that shall see how the present frameworks
hold up, in case of another accident with trans-boundary damages.
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