Nuclear energy: Vienna Convention guarantees protection, compensation

Recently Rwanda acceded to the Vienna Convention on civil liability for nuclear damage.

The accession signifies a set of standards under the Convention to provide compensation for damage arising from nuclear incidents.

The Vienna Convention on Civil Liability aims at harmonising the national law of the States Parties by establishing some minimum standards to provide financial protection against damage resulting from certain peaceful uses of nuclear energy.

It is incumbent on States Parties to have laws and regulations in place conforming to the legal regime for civil liability for nuclear damage provided for in the Convention.

Acceding to the Convention undertakes to establish a predictable legal framework for appropriate insurance for an operator’s civil liability for nuclear damage, which is an essential part of the operation of a nuclear programme.

Moreover, the legal regime provided for in the Convention is based on the following general principles: “exclusive liability of the operator of the nuclear installation concerned; the injured party is not required to prove fault or negligence on the part of the operator; minimum amount of liability; obligation for the operator to cover liability through insurance or other financial security; equal treatment of victims, irrespective of nationality, domicile or residence, provided that damage is suffered within the geographical scope of the Convention; exclusive jurisdictional competence of the courts of the Contracting Party in whose territory the incident occurs or, in case of an incident outside the territories of Contracting Parties; exclusive jurisdictional competence of the courts of the Contracting Party in whose territory the incident occurs or, in case of an incident outside the territories of Contracting Parties; recognition and enforcement of final judgements rendered by the competent court in all Contracting Parties”, among others.

Prior to diving into attribution of a civil liability, it’s quite relevant to draw a lesson from past nuclear incidents occurred in Ukraine and Japan.

First, the Chernobyl disaster was a nuclear accident that occurred on April 26, 1986 at the Chernobyl Nuclear Power Plant in Ukraine (then in the Ukrainian, part of the Soviet Union).

It was considered the worst nuclear power plant accident in history and was the only level 7 event on the International Nuclear Event Scale under the International Atomic Energy Agency (“IAEA”).

The IAEA is an international organization that seeks to promote the peaceful use of nuclear energy, and to inhibit its use for any military purpose, including nuclear weapons.

Accidentally, two Chernobyl plant workers died on the night of the accident, and a further 28 people died within a few weeks as a result of acute radiation poisoning.

Second, Fukushima 1 Nuclear accidents which resulted from equipment failures and released radioactive materials at the Fukushima I Nuclear Power Plant, in Japan, following the 9.0 magnitude Tōhoku earthquake and tsunami on March 11, 2011.

According to experts, it was the second largest nuclear accident after the Chernobyl disaster.

From an individual victim’s perspective, in respect of civil liability, the Convention gives at the first sight an advantage to be entitled to sue all possibly liable persons and to choose among various competent courts [in States Parties], and in particular where the damage occurred and where the victims have residence.

Most importantly, the Convention provides for exclusive jurisdiction, which has effect that all actions arising out of one incident are heard in the same court.

This leads to a concentration of actions in one court where a number of plaintiffs are involved, which in case of nuclear incidents is more likely to happen than in other tort cases.

Exclusive jurisdiction may also facilitate equal treatment of multiple plaintiffs and equal allocation of available assets.

With respect to the determination of the applicable law in the event of a claim, the Convention contains uniform substantive law on liability and compensation.

In other words, the nuclear liability Convention pursue two aims: the primary aim is to ensure that victims of a nuclear incidents can claim, and will in fact receive, adequate compensation for their losses.

More interestingly, the accession to the Convention implies the public need to be guaranteed of sufficient protection against the potential risks arising from nuclear production.

These risks are not associated with the operation of nuclear reactors per se, but with the production, carriage, storage, and disposal of nuclear fuel capable of spontaneous toxicity.

A ‘Chernobyl’ type accident remains an incredibly relevant example. Once, a nuclear catastrophe occurs there’s a large scale emission of ionising radiation, and many people could suffer radiation related illness and incur damage to their property.

On the whole, there’s a need for awareness-raising for any nuclear plant yet to be established to take into account the safety and protection measures to the public.

Such precautionary measures don’t only protect the public but also prevent the nuclear plant from facing possible financial penalties resulting from potential civil liability claims.

The writer is a law expert.

The views expressed in this article are of the author.

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