Can the existing international nuclear liability regime prevent the re-occurrence of the Chernobyl and Fukushima disasters?

Essay, 2013

32 Pages, Grade: merit



I. Some considerations about the Chernobyl and Fukushima accidents
I.1 Some considerations regarding the Chernobyl accident
I.2 Some considerations regarding the Fukushima accident

II. Legal framework regarding liability in case of nuclear damage
II.1 Convention on Third Party Liability in the Field of Nuclear Energy (the Paris Convention)
II.2 The 1963 Brussels Convention Supplementary to the Paris Convention (Brussels Supplementary Convention)
II.3 Vienna Convention on Civil Liability for Nuclear Damage
II.4 The 1988 Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention
II.5 The 1997 Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage (VC Protocol)
II.6 The 1997 Convention on Supplementary Compensation for Nuclear Damage (CSC Supplementary Compensation Convention)
II.7 The 2004 Protocols to Amend the Paris Convention and the Brussels Supplementary Convention (PC Protocol and BSC Protocol)
II.7.1 The 2004 Protocol to Amend the Paris Convention (PC Protocol)
II.7.2 The 2004 Brussels Supplementary Convention (BSC Protocol)

III. Conclusions



“The Chernobyl accident demonstrates vividly that nuclear safety is truly a global issue. … In a very real sense we are all hostages to each other’s performance."[1]

In this essay I would like to argue that the existing international nuclear liability framework cannot prevent great nuclear disasters. I will start with some considerations about Chernobyl and Fukushima, and then my discussion will continue with a framework of the international legal provisions that address related clauses of liability. I attempted to furnish plausible interpretation of the existing international legal framework before arriving at conclusion about the efficiency of this framework.

I. Some considerations about the Chernobyl and Fukushima accidents

The nuclear accidents of Chernobyl, USSR in 1986 and Fukushima, Japan in 2011 rekindled serious and thought provoking discussions among the scientific communities, policy planners and beneficiaries of the world to understand whether the existing legal liability ensures the nuclear safeguards to the world for continued use of the nuclear technology at the cost of human and environmental tragedies. A thorough review of these two nuclear tragedies in light of legal provisions is made in the subsequent sections to understand:

I.1 Some considerations regarding the Chernobyl accident

On April 26, 1986, an explosion at a nuclear power plant in Chernobyl, USSR, confirmed the spreading of the most harmful radioactive emission ever met. The immediate and long term effects were devastating. In spite of the serious consequences, USSR denied legal obligations coming from the accident. USSR was not part of the international framework regarding nuclear liability. Thus, the only type of liability held for the Chernobyl accident was the “moral responsibility”[2] of the USSR government.

“Gross human error and shortcomings in the design features of the reactor”[3] were the causes of this terrible tragedy which has tremendous consequences even today. And there was no legal duty to prevent damage to other countries and to enable victims to recover the injury suffered.

According to the Principle 21 of the 1972 UN Declaration on the Human Environment “States have, in accordance with the charter of the UN and the principles of international law…the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction”.[4] This fundamental principle cannot be respected in the absence of a well-defined liability regime.

The Chernobyl accident determined a reconfiguration of both the NEA and IAEA regimes[5], determining the adoption of new international conventions in the field of nuclear liability, which has been analyzed in the following sections.

I.2 Some considerations regarding the Fukushima accident

On March 11, 2011, a high-damage high-probability event occurred: a 9-magnitude earthquake which generated a 38 meter tsunami in some areas destroyed the Japanese coastal towns and assaulted Fukushima Daiichi Nuclear Power Plant and, consequently, “the absolute safety myth”.[6]

The placement of the nuclear plant was more than uninspired despite the declarations made by workers and officials immediately after the accident. “We can only work on precedent, and there was no precedent”, “when I headed for the plant, the thought of a tsunami never crossed my mind”[7] said an engineer who had worked on building the Fukushima Daiichi plant in 1990s. According to the Fukushima Director “Japanese engineers working on nuclear plants continued to predict what they believed were maximum earthquakes based on records”, they “did not take into account serious uncertainties like faults that had not been discovered or earthquakes that were gigantic but rare”.[8] These facts were stated in spite of the well known general truth that the region is repeatedly hit by big earthquakes and huge tsunamis. Even in such a hi-tech country as Japan the operator (TEPCO) and the authorities were not prepared for such an event.

Moreover, some faults existed from the very beginning. It is pertinent to note that the design of the Fukushima Nuclear Plant was based on the 1953 Fukushima earthquake that rocked the Sendai coast and the 11th March 2011 earthquake (Mw 9.0) crossed the limit of ever recorded such powerful earthquake in the annals of Japan Seismological research, which was a supplementary argument put forth by Japanese engineers in support of failure of nuclear plant . [9] It is largely debatable if nuclear reactor units should be built in the vicinity of the active seismogenic fault. This is what generated the chain reaction which led to the hydrogen explosions and the meltdowns at the three reactors. Thus, this mistake could have been avoided with better consequences in the future. Furthermore, the problems at the cooling system could have been mitigated through a previous proper checking of the system. An earlier training would have helped a lot in improving the reaction of workers during the event. Some managerial dysfunctions (neither the president nor the chairman of TEPCO were present at the scene of the accident in the first moments) contributed to the worsening of the situation.[10]

Furthermore, the Nuclear and Industrial Safety Agency (NISA) and the Nuclear Safety Commission (NSC) share some responsibility in their preventive measures. For example, NSC, in its preventive accident management activity did not consider to the situation of an extensive loss of power at the reactors. It takes into consideration the situation only when the emergency power systems are quickly restored, without paying attention to the worst case scenario.

Not even the Japanese governmental authorities were prepared for such an event. The off-site center designed to cope with the Fukushima accident was not operational because of the disaster generated by the tsunami (no electricity, blocked roads) and the lack of primer protections (air-purifying filters).[11]

The Japanese Governmental System for Prediction of Environmental Emergency Dose Information (SPEEDI) could not fulfill its task because the governmental authorities did not allow for such predictions to be made public. More than sure, the reason for this interdiction was the fear of panicking the population. The nuclear safety regulations were not enhanced and the lack of highly qualified nuclear experts was more than obvious. These were some of factors which might have intensified the crisis.

But even with these faults, the governmental intervention was crucial. The Prime-Minister’s intervention underlining that “abandoning the reactors and spent fuel pools would have devastating effects over several months, creating 10 to 20 sources of radiation, each releasing two or three times the contamination discharged at Chernobyl” and the fact that “TEPCO was not allowed to accept defeat and that the company bore the ultimate responsibility” played an important role.[12] Moreover, the company would have collapsed if proper interventions had not been taken. One step forward was the injection of water into the reactors and fuel pools. This task was carried out by members of Self-Defense Forces (SDF) in spite of the high risk of radiation. They were military and had to obey.

Regarding the liability, according to the 1961 Act on Compensation for Nuclear Damage, the owner of the plant is liable for damages resulting in an accident. To recover damages, the victims must demonstrate the link between the event and these damages. This requirement does not exist in the international legal framework that deals with liability. The damage is automatically presumed to be generated by the nuclear event. It is compulsory for the operator to conclude one insurance contract with a private insurer (applicable to most of the accidents) and another one with governmental authorities (which covers accidents like those resulting from earthquakes and tsunami). Both contracts are up to 120 billion yen per reactor. Additional funding can be provided by the government.[13]

Most importantly, the 2011 great east Japan tsunami occurred in the demarcated zone of tsunamigenic earthquakes, where several past strong shaking and tsunamis have already been recorded,[14] and thus the occurrence of such strong damaging tsunamigenic earthquake was not surprising for the area in Japan where such grave tragedy struck . [15]

For the damage caused by “a grave natural disaster of an exceptional character” the nuclear operator is not liable. This expression is very unclear, highly debatable and leads to many interpretations. However, the courts have not decided yet about its meaning. If one considers the probability of a big earthquake and a huge tsunami in a zone called “Ring of Fire” because of the intensity of the earthquakes, placed near the ocean, furthermore with a high probability of tsunami (even the fact that “tsunami” is a Japanese word proves this event is very common in the Japanese culture), as a terrible but highly probable event, the exemption is not applicable and the operator is liable. This was the interpretation given by the victims of the Fukushima nuclear disaster who asked TEPCO to pay compensations in the amount of 900 billion yen, for which the redress will be made against the state fund Nuclear Damage Liability Facilitation Fund.[16]

II. Legal framework regarding liability in case of nuclear damage; Nuclear Liability Conventions; the nuclear liability regime of the first generation: the Paris Convention, the Brussels Supplementary Convention and the Vienna Convention

II.1 Convention on Third Party Liability in the Field of Nuclear Energy (the Paris Convention)

The Paris Convention regards loss of lives and property damage generated by a nuclear accident either in a nuclear installation or by substances which are emanated from these installations.

Parties injured should bring their claim against the nuclear operator or the operator’s insurer in a limited period of time: within 10 years from the time when injury occurred or within 2 years since discovering the damage and against the nuclear operator or the operator’s insurer.

Article 3 of the Paris Convention provides that “the operator of a nuclear installation shall be liable…for (i) damage to or loss of life of any person; and (ii) damage to or loss of any property other than (1) the nuclear installation itself and any other nuclear installation, including a nuclear installation under construction, on the site where the installation is located; and (2) any property on that same site which is used or to be used in connection with any such installation.”[17]

The scope of the application of the Paris Convention is too narrow, it is limited to loss of person, including death, and damage of property. Much broader aspects, such as environmental pollution, were not taken into consideration at that time, fact which highlights the very basic nature of these provisions and their limited coverage. Since the Paris Convention represents the first drafting of the nuclear liability at international level at a time when accidents such as Chernobyl and Fukushima had not occurred, and it fails to take into consideration a more comprehensive range of damages.

The same article enshrines the principle of strict liability. According to this article, the liability is presumed “upon proof that such damage or loss was caused by a nuclear accident in such installation or involving nuclear substances coming from such installation…”[18] Thus, an injured party has the possibility to introduce a claim against the nuclear operator without having the obligation to demonstrate the fault of the operator. It is so because there is no yardstick available with the instrument to authenticate the damage or loss claimed by the victim was caused by a nuclear accident due to the sole mistake committed by the operator.

This provision reflects common sense as long as the victim does not have technical expertise and access to nuclear installation in order to provide considerations regarding the fault of the operator.

The principle of strict liability provides that the operator of a nuclear installation is strictly liable for damage provoked by a nuclear accident at the installation or when transporting the nuclear materials to or from that particular installation to third parties.[19] The liability is strictly applicable to the nuclear operator since it is the only one in charge with both the activity at the installation and the transport activity. The risk associated with these two activities is very high and the persons in charge of their fulfillment are presumed to be responsible for any injury caused by their defective performance.

But, in some other international nuclear liability laws, liability involves not only the responsibility of the operator but also that of the carrier of nuclear substances and that of the holder of the radioisotope license.[20]

According to the principle of strict liability, as previously mentioned, the injured persons (since they do not have the technical knowledge) do not have the obligation to prove the fault of the operator and the latter one will compensate for the damage.[21]

According to article 9 of the Paris Convention “the nuclear operator shall not be liable for damage caused by a nuclear incident directly due to an act of armed conflict, hostilities, civil war, insurrection or, except in so far as the legislation of the Contracting Party in whose territory his nuclear installation is situated may provide to the contrary, a grave natural disaster of an exceptional character.”[22] The provision reflects very well the reality. All the facts enumerated in this article are beyond the control of the operator, are not created by his faulty action or inaction and, as a consequence, the operator cannot be held responsible for them.

The question is whether the last part of the article applies to Fukushima, Japan. Were the earthquake and the tsunami the only factors which generated the nuclear accident, “grave natural disaster of an exceptional character” or were the problems at the nuclear reactors caused by the faulty design too?

It is known to the fact that nuclear reactors have sensors that measure the earth movement triggered by the earthquake.[23] The moment the movement exceeds what the reactor is designed to operate at (known as the operating basis earthquake limit), the reactor starts shutting down and emergency cooling is activated. Since the quake or tsunami water has potential to damage power driven water pump and power supply system. The reactors have to have proper power backups. Diesel generators kick in if electric supply fails, and battery powered generators start working if diesel ones fail. If all power supply back up fail-like in Fukushima, the reactor is in a state known as Station black out. If nuclear plants have no mechanism to cool the reactor core in absence of power, they can start heading towards melt-down. In context to the design of Fukushima nuclear plant as mentioned previously is based on the 1953 highest recorded magnitude of earthquake 8.0 in the region, which withstand strong shaking even during a series of past damaging earthquakes of similar magnitude that rocked the region, including the 1989, 1994 and 2004 earthquakes. There were 3-tiers of power supply system in the Fukushima nuclear plant, which were damaged altogether due to strong shaking and tsunamis of the 11th March 2011 great east Japan earthquake (Mw 9.0), the ever recorded highest magnitude earthquake that raised tsunmi tide more than 30 meters of height, which is the highest in the recorded history of global tsunamis.[24] Thus one cannot blame the failure of Fukushima nuclear reactor due to its old faulty design, rather the observation vindicates the fact that the earthquake and the tsunami the only factors which generated the nuclear accident, “grave natural disaster of an exceptional character”. Moreover, the grave disaster of an exceptional character was beyond the control of the operator as the nuclear disaster scenario of Fukushima were not created by the faulty action or inaction and, as a consequence, the operator cannot be held responsible for the nuclear accident, which is unison to the article 9 of the Paris Convention.


[1] “Chernobyl Causing Big Revisions in Global Nuclear Power Policies”, N.Y. Times, Oct. 27, 1986, at 1, col. 1(statement of James K. Asselstine, Member of the U.S. Nuclear Regulatory Commission)

[2] “After C h ernobyl: Liability for Nuclear Accidents under International Law”, Columbia Journal of Transnational Law”

[3] N.Y.Times, Aug. 16, 1986

[4] UN Doc. A/C48/14 (1974)

[5] Prof. Dr. Michael G. Faure & Dr. Tom Vanden Borre, ”Compensating Nuclear Damage : A Comparative Economic Analysis of the US and International Liability Schemes”

[6] Yoichi Funabashi, Kay Kitazawa, “Fukushima in review: A complex disaster, a disastrous response”, Bulletin of the Atomic Scientists

[7] Onishi & Glanz, Japanese Rules for Nuclear Plants Relied on Old Science, NY Times, Mar. 26, 2011

[8] Onishi & Glanz, id.

[9] O. P. Mishra, “The 2011 Multi Disasters in Japan: A test of Disaster Risk Resileint of Japan, J. South Asia Disaster Studies, Vol. 4, Issue 1, 2012

[10] Yoichi Funabashi, id.

[11] Yoichi Funabashi, Kay Kitazawa, id.

[12] Yoichi Funabashi, Kay Kitazawa, id.

[13] J. Mark Ramseyer, “Why Power Companies Build Nuclear Reactors on Fault Lines: The case of Japan”, Harvard John Olin Cener for Law, Economics and Business

[14] O. P. Mishra, “The 2011 Multi Disasters in Japan: A test of Disaster Risk Resileint of Japan, J. South Asia Disaster Studies, Vol. 4, Issue 1, 2012; O. P. Mishra, D. Zhao, N. Umino and A. Hasegawa, “Tomography of northeast Japan forearc and its implications for interpolate seismic coupling”, Geophys. Res. Lett., 30, 2003, 10.1029/2003GL017736

[15] O.P. Mishra, “The 11th March 2011 Great East Japan earthquake (Mw 9.0): A plausible cause of Genesis”, J. South Asia Disaster Studies, Vol. 3, Issue 2, 2011

[16] Japan Times, “Tepco faces delay in redress aid”

[17] Nuclear Energy Agency Convention on Third Party Liability in the Field of Nuclear Energy of 29th July 1960 as amended by the Additional Protocol of 28th January 1975 and by the Protocol of the 16th November 1982, art. 3(a), available at (hereinafter Paris Convention)

[18] Paris Convention, art. 3(a)

[19] The nuclear operator or the supplier of nuclear goods, services or technology can’t be the third party. Thus, the third party is anyone other than those two parties; can be any person inside or outside the nuclear installation, even the employees working at that particular nuclear installation.

[20] Austrian Nuclear Liability Law

[21] Julia A. Schwartz, Head of Legal Affairs , OECD Nuclear Energy Agency, “International Nuclear Third Party Liability Law: The Response to Chernobyl”

[22] Paris Convention, article 9

[23] O. P. Mishra, “Tusnamigenic 2011 Japan earthquake triggered nuclear disaster of Fukushima”, J. South Asia Disaster Studies, Vol.4, Issue 1, 2012

[24] O. P. Mishra, “Tusnamigenic 2011 Japan earthquake triggered nuclear disaster of Fukushima”, J. South Asia Disaster Studies, Vol.4, Issue 1, 2012

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Can the existing international nuclear liability regime prevent the re-occurrence of the Chernobyl and Fukushima disasters?
Queen Mary University of London  (Department of Law)
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Alina Alexe (Author), 2013, Can the existing international nuclear liability regime prevent the re-occurrence of the Chernobyl and Fukushima disasters?, Munich, GRIN Verlag,


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