Radioactive Contamination in the Arctic: Economic losses caused by the Consumption of cortinarius caperatus with elevated levels of cesium-137 by rangifer tarandus as a Problem of Human Rights Law
Radioactive Contamination in the Arctic: Economic losses caused by the Consumption of cortinarius caperatus with elevated levels of cesium-137 by rangifer tarandus as a Problem of Human Rights Law
Reindeer herding is an important source of livelihood in the global north, in particular for the dozens of indigenous groups which engage in it. Reindeer meat is considered to be very healthy2 and reindeer herding has long been a sustainable form of land use. In recent years land use conflicts, the construction of roads and railways,3 mining,4 climate change5 and pollution of the natural environment have put this form of income under pressure. There is one form of pollution which has been around for several decades but which continues to cause harm to animals and humans to this very day:
In autumn 2014, a spike in cesium-137 in reindeer meat was reported in parts of central Norway.6 The cesium-137 comes from the 1986 accident in the nuclear reactor in Chernobyl,7 in what is today Ukraine. The key reason why this became a problem again last year is a mushroom named cortinarius caperatus,8 which is considered a delicacy by both humans and, apparently, reindeer.9 Last year the temperature and humidity led to a significant number of these mushrooms being available and hence a corresponding consumption by reindeer.10 The problem with this mushroom is not only that might be confused with similar looking poisonous cortinarius variants but also that it essentially “acts like a sponge”:11 It takes up and stores not only cesium-13712 but also, for example, cadmium to an extent that it can be a risk to human health,13 and is a good example for how outside pollution already threatens the food safety in the North. Especially when it comes to mushrooms and berries, this is something which I believe deserves much more research because due to these outside influences, traditional knowledge about local food sources might not be applicable anymore.
cesium-137 is tricky. It has a half-life of a bit over 30 years,14 so the heritage of Chernobyl will still be with us for some time, right now more than half of the Chernobyl cesium-137 is still around. cesium-137 does not normally exist in nature, it is a product of nuclear energy processes,15 both in nuclear reactors and nuclear weapons. cesium-137 salts are be water soluble,16 which makes it fairly easy to spread in the natural environment. Combined with a host system like cortinarius caperatus, this is a problem. But it is not a new problem. The role of cesium-137 from Chernobyl in the Arctic food chain and in rangifer tarandus has been dealt with in a number of scientific publications, including a number of articles in a special issue of the journal Rangifer in 1990.17
Indeed, traditional food sources might become dangerous if there is not enough awareness of such invisible forms of pollution. A good example is the salmon in the Tornio river, which forms the border between Sweden and Finland. The Tornio is one of the best salmon rivers in Europe, not as famous as the Tana but still important both locally and for tourism. According to local residents there is a mine in Pajala, on the Swedish side, which has led to such a level of pollution that locals who live downstream from there on either side of the river have become much more cautious than they had been in the past. What has been a staple food for many generations is now for example seen as dangerous for pregnant women. The Kaunisvaara mine was closed in December 2014 due to the bankruptcy of the operating company,18 but there is interest in continuing operations there.19 At the time of writing it remains to be seen how the situation there will continue to develop.
For reindeer herders, the news that reindeer meat is radioactive is not only bad news for their own food security but also for their business. Many potential customers might refrain from buying reindeer meat after hearing about this issue, even if reindeer herders assure them that this is a temporary problem and that the meat will be save if the reindeer are killed later in the year. Even though the financial risk to the herders might not be destructive, it cannot be excluded that there will be instances of lost profits. Due to the half-life of the radioactive isotopes, the meat will no longer be affected if the reindeer are slaughtered later in the year. In so far, the traditional slaughtering times after the summer might be too early and the reindeer might might still be contaminated.
But there remains a risk of lost income due to slaughtering the reindeer later. Reindeer herders who suffer such losses might want to seek compensation from those who caused the radioactive contamination of the mushrooms in the first place. Hardly anybody would want to buy radioactive meat and there is a risk that even when such a problem is solved, there is a residual effect in the form of a bad reputation for reindeer meat, due to the association between the words “reindeer” and “radioactive”.
The solution in the case of the reindeer who had consumed these mushrooms which contained cesium-137 was to either feed them additional food20 or to delay the slaughtering,21 so as to make sure that the level of cesium-137 is down. It was mentioned that the half-life of cesium-137 is just over 30 years, this has to be contrasted with the so called biological half-life,22 which is the half-life in a living being, like a reindeer. Once a reindeer has taken up cesium-137, the cesium will be distributed throughout the body, although, and this only makes it worse, it stays mainly in soft tissue,23 such as meat or fat. The biological half-life of cesium-137 varies between different species and also between reindeer in different areas.24
Taking this into account and continuing to use the reindeer for meat production requires that the reindeer survives the consumption of cesium-137 and that the reindeer stops eating the contaminated food, which only works if you can move the animals away from the contaminated food source. Often this won’t be an option. An alternative is feeding them with additional, uncontaminated, food. This in turn will cost money and reduce the profit made by the reindeer herders.
One can reduce the half-life of cesium-137 to about 30 or 40 days by taking the pigment Prussian Blue,25 that is hexacyanoerrates, Fe7(CN)18. There is also some experience on using Prussian Blue in reindeer.26 In addition, it is possible to give the reindeer clay minerals like bentonite.27 Alternatively, and this is what happened last year,28 herders can move the time of the slaughtering. This can disrupt the traditional pattern of reindeer herding and the results can vary. If there is no need to spend money on additional feed, this might be the most economic option, if it is only seen from a financial perspective. The cultural damage is something which is not measured here. While there is a certain value to maintaining traditions, it is difficult to put an price tag on this.
There might also be long term downsides. If the reindeer are slaughtered later in the year, they will eat longer after the end of summer. That means that there will be less food available for the rest of the herd during the winter. The feed used up by the reindeer which need to eat non-contaminated food for some time in order to reduce the contamination will not be available for the other reindeer, hence at least increasing the risk of malnourishment, lower birth weight of calves in the next year and so on. This is something that can hardly be phrased in terms of the European Convention on Human Rights29 (ECHR) because the relationship between the reindeer herders and the land, unless it is privately owned, is hardly covered by the material scope of Article 1 of Protocol 1 to the European Convention on Human Rights30 (P1), which protects the peaceful enjoyment of possessions. After all, the reindeer herding right is not lost and mere business opportunities which have not yet resulted in a legally binding obligation are not possessions
While a delay in the slaughtering of the reindeer can allay health fears, there might be a loss of profit for reindeer herders. Assuming that there is a damage which can be put in numbers, can reindeer herders affected by radioactivity from the Chernobyl incident hold Ukraine or Russia to account at the European Court of Human Rights for the purpose of obtaining compensation for lost profit due to the current radioactive contamination of reindeer?
But there might be some protection under Article 8 ECHR. Reindeer herding is protected under Article 8 of the European Convention on Human Rights (ECHR).31 That has been found already in 1983 in a case concerning the construction of the dam at Alta.32 The idea the former European Commission on Human Rights, which existed until 1998, had about indigenous peoples, was, however, a limited one. Essentially it viewed the pursuit of indigenous livelihoods like fishing and reindeer herding simply as a “life style”,33 potentially not much different from a hobby or the fact that somebody chooses to live as a farmer in the countryside rather than as a office worker the city. But this “life style”34 was enough to let it fall within the material scope of the right to private life under Article 8 (1) ECHR.35
Reindeer herding as a form of livelihood is protected under Article 8 (1) ECHR and the radioactive contamination does not make reindeer herding impossible but it at least infringes on the possibility to use it as a livelihood. After all, reindeer are not pets which are kept just for fun but they serve a specific purpose and this purpose, directly or indirectly feeding the reindeer herders and their families, cannot be fulfilled if the reindeer meat is contaminated. I also do not see any justification for such an infringement which could provide a solution under paragraph 2 of Article 8 ECHR and the European Convention on Human Rights (ECHR) also provides a compensation clause in Article 41.
“Art. 41 of the ECHR foresees a right to compensation (“just satisfaction”) for violations of the Convention. For a long time, the standard employed by the European Court of Human Rights was lower than the standard under general public international law under which an individual could be fully compensated. This general compensation rule employs the so called “Hull”-formula, which requires compensation to be prompt, adequate, effective and the victim has to receive full compensation.20 Although the Court is not yet as generous as it could be under the Hull-formula, recently an increase in the amounts awarded can be noted. It remains to be seen whether this means a development towards full compensation – full compensation being required for a just compensation – or whether it only appears to be so because the Court now concentrates on more important cases, given its backlog of cases. The standard of compensation in cases of naturalisation has been elaborated on by the Court in Lithgow and while compensation standards my vary, compensation may not be denied per se – this would amount to a second violation of the right to property because the compensation claim is also protected under Art. 1 of Protocol 1. Only in very extreme circumstances may compensation be denied in expropriation cases. Even a temporal “detention” of movable property amounts to an “interference” into the applicant’s right. In addition, the fees payable to attorneys in the context of a particular case can be compensated under Art. 41 ECHR.”36
From the perspective of the material law, this all looks pretty much straightforward.
It might be possible for reindeer herders to just let the reindeer eat whatever they want to eat (of course taking all necessary measures to make sure that they stay as healthy as possible), continue the old patterns of reindeer herding and to claim expenses (for example for feeding them Prussian Blue to safeguard the health of the reindeer) from those who are actually responsible for the contamination in the first place. After all, why should reindeer herders in Norway or Sweden pay for something that has been done by the Soviet Union?
And here we come to the biggest problem, and this takes us away from the legal norms we would normally deal with when we talk about indigenous rights in the North. Can we use the European Convention on Human Rights to pursue claims against Ukraine (where the Chernobyl nuclear power plant is located) or Russia (as the successor state of the former Soviet Union) or both, for something that happened years before either Russia or Ukraine became a party to the European Convention on Human Rights. Both Ukraine and Russia are parties to the ECHR today but only became parties long after the damaging incident. Russia is the more likely target for litigation because Russia is widely accepted to be the successor state to the Soviet Union. Also, Ukraine will in all likelihood reject responsibility for the 1986 Chernobyl disaster - not necessarily because of the current political situation but because Ukraine has hold favored the clean slate doctrine and it is one of the few (but enough) states which have ratified the Vienna Convention on Succession of States in respect of Treaties,37 Article 16 of which codifies the clean slate doctrine. That convention is not directly applicable to the Chernobyl incident, but Ukraine has solid arguments against Chernobyl related claims being directed against it, at least as far as the 1986 incident is concerned. The continuing danger posed by the ruins of the nuclear power plant in Chernobyl, are a completely different matter. In so far, Ukraine, and only Ukraine, is responsible for the dangers which emanate from its territory, including the danger of renewed contamination of large parts of Europe.
That leaves Russia as a potential respondent state. Normally, an international treaty such as the European Convention on Human Rights, does not apply retroactively. It is possible, though, that a new measure, which can also be an omission, a failure to act, can perpetuate a human rights violation which had its origins in an event which happened prior to the entry into force; then it is not the original event but the new event which amounts to a violation of human rights. This can be for example the denial of compensation for a damage which is suffered today. If reindeer herders for example from Norway were to claim compensation from Russia for the damage they suffered and such compensation would be denied, they might very well have a case here. The human rights violation would then, however, not be restricted to reindeer herding but also to access to justice, maybe fair trial etc. This will require a claim to be made before Russian authorities. Given that any applicant has to exhaust domestic remedies before being able to bring a case to the Court in Strasbourg,38 this would have to be done anyway when one considers litigation under the European Convention on Human Rights.
Russia is a party to the 1997 Vienna Convention on Civil Liability for Nuclear Damage,39 which updated the 1963 treaty of the same name,40 but it was never a party to the original treaty and hence was not bound in 1986 when the Chernobyl incident happened. But there is a Russian Federal Law on the Use of Atomic Energy,41 which also provides for compensation. Also, the Russian Civil Code42 allows for strict liability in tort,43 which is based on the fact that a danger was created. This is a rule which, in one form or an other, has been around for a long time, already prior to the revolution of 1917.44 Today it is clearly applicable to operators of nuclear power plants. While it cannot necessarily be said that the same rule would have applied to the operation of the nuclear power plant in Chernobyl in 1986, the importance of strict liability of those who create a danger makes Russian civil law at least an interesting avenue to pursue compensation.
1 Associate Professor for Fundamental and Human Rights, with Special Focus on Indigenous Rights, University of Lapland, Faculty of Law, Rovaniemi, Finland; member of the bar in Frankfurt am Main, Germany.
2 Elisabeth Øvreberg, Reindeer meat is as healthy as fish, in: Science Nordic, http://sciencenordic.com/reindeer-meat-healthy-fish, 24 February 2013.
3 See United Nations Human Rights Committee, Sara et al. v. Finland, Communication No. 431/1990, 23 March 1994.
4 See e.g. K. Granqvist, Effects of Mining on Reindeer Herding Grounds in Jokkmokk in Sweden, in: Arctic Anthropology, http://arcticanthropology.org/2013/03/12/effects-of-mining-on-reindeer-herding-grounds-in-jokkmokk-in-sweden/, 12 March 2013.
5 A very instructive overview is offered by Maria Furberg / Birgitta Evengård / Maria Nilsson, Facing the limit of resilience: perceptions of climate change among reindeer herding Sami in Sweden, 4 Global Health Action (2011), doi: 10.3402/gha.v4i0.8417, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3204920/, 28 October 2011.
6 Emma Jarratt, Norway’s radioactive reindeer, in: Barents Observer, http://barentsobserver.com/en/nature/2014/10/norways-radioactive-reindeer-08-10, 8 October 2014.
13 S. A. Petkovšek / B. Pokorny, Lead and cadmium in mushrooms from the vicinity of two large emission sources in Slovenia, in: 443 Science of the Total Environment (2013), pp. 944-954, doi: 10.1016/j.scitotenv.2012.11.007, http://www.ncbi.nlm.nih.gov/pubmed/23253939, 15 January 2013.
14 R. Nave, Cesium-137, http://hyperphysics.phy-astr.gsu.edu/hbase/nucene/fisfrag.html, no date.
16 See in more detail Yucheng Jiang / Mancheng Hu / Mei Meng / Shiyang Gao / Shuping Xia, Investigation on the equilibrium solubility of cesium chloride-hydrochloric acid-water ternary system and the application, in: 10 Indian Journal of Chemical Technology (2003), pp. 391-395, http://nopr.niscair.res.in/bitstream/123456789/22732/1/IJCT%2010%284%29%20391-395.pdf.
17 The issue is available online at http://septentrio.uit.no/index.php/rangifer/issue/view/108.
18 Atle Staalesen, Bids given for Pajala Mine in Arctic Sweden, in: Eye on the Arctic, http://www.rcinet.ca/eye-on-the-arctic/2015/01/28/bids-given-for-pajala-mine-in-arctic-sweden/.
20 Emma Jarratt, Norway’s radioactive reindeer, in: Barents Observer, http://barentsobserver.com/en/nature/2014/10/norways-radioactive-reindeer-08-10, 8 October 2014.
22 United States Environmental Protection Agency, Half-Life, http://www.epa.gov/radiation/understand/halflife.html, 26 July 2012.
23 United States Environmental Protection Agency, Cesium, http://www.epa.gov/radiation/radionuclides/cesium.html, 6 March 2012.
24 See in more detail A. P. Leppänen / M. Muikku / T. Jaakkola / J. Lehto / T. Rahola / K. Rissanen / M. Tillander, Effective half-lives of 134Cs and 137Cs in reindeer meat and in reindeer herders in Finland after the Chernobyl accident and the ensuing effective radiation doses to humans, in: 100:5 Health Physics (2011), pp. 468-481, doi: 10.1097/HP.0b013e3181f2b52c.
25 Colin Wessells, Cesium-137: A Deadly Hazard, http://large.stanford.edu/courses/2012/ph241/wessells1/, 20 March 2012.
26 See in detail Hans Staaland / Knut Hove / Øyvind Pedersen, Transport and recycling of radiocesium in the alimentary tract of reindeer, 10:3 Rangifer (1990), pp. 63-72, http://septentrio.uit.no/index.php/rangifer/article/view/827/792.
27 See in more detail Birgitta Åhman / Sevald Forberg / Gustaf Åhman, Zeolite and bentonite as cesium binders in reindeer feed, in: 10:3 Rangifer (1990), pp. 73-82, http://septentrio.uit.no/index.php/rangifer/article/view/834/798.
28 Emma Jarratt, Norway’s radioactive reindeer, in: Barents Observer, http://barentsobserver.com/en/nature/2014/10/norways-radioactive-reindeer-08-10, 8 October 2014.
29 Convention for the Protection of Human Rights and Fundamental Freedoms, European Treaty Series No. 5, http://conventions.coe.int/treaty/en/Treaties/Html/005.htm, 4 November 1950.
30 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, European Treaty Series No. 9, http://conventions.coe.int/treaty/en/Treaties/Html/009.htm, 20 March 1952.
31 European Commission of Human Rights, G. and E. v. Norway, Applications Nos. 9278/81 and 9415/81, Decision of 3 October 1983.
36 Stefan Kirchner / Katarzyna Geler-Noch, Compensation under the European Convention on Human Rights for Expropriations enforced prior to the Applicability of the Convention, in: 19:1 Jurisprudencija (2012), pp. 21-29, at p. 25.
37 Vienna Convention on Succession of States in respect of Treaties, http://legal.un.org/ilc/texts/instruments/english/conventions/3_2_1978.pdf, 23 August 1978.
38 Article 35 (1) ECHR.
39 Vienna Convention on Civil Liability for Nuclear Damage, http://www-pub.iaea.org/MTCD/publications/PDF/Pub1279_web.pdf, 12 September 1997.
40 Vienna Convention on Civil Liability for Nuclear Damage, https://treaties.un.org/doc/Publication/UNTS/Volume%201063/volume-1063-I-16197-English.pdf, 21 May 1963.
41 Federal Law on the Use of Atomic Energy [Russia], http://www.rertr.anl.gov/IAEA197/russlaw.html, 20 October 1995.
42 Civil Code of the Russian Federation, http://www.russian-civil-code.com/, 23 December 2003.
43 Alexander Neumüller, Umwelthaftung in Russland - Die materielle Verantwortlichkeit für Umweltschäden (Umwelthaftung) nach dem Umwelt- und Zivilrecht der Russischen Föderation unter Berücksichtung der Rechtslage in anderen Nachfolgestaaten der UdSSR, 1st ed., Duncker & Humblot, Berlin (1997), p. 49.
44 Ibid., there footnote 91.