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State Responsibility and Liability for Nuclear Damage

By Alexandre Kiss Presented by Abhay Singh

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IntroductionStates are responsible for violations of

the rules of international law that can be attributed to them

First, the question of whether and how far such rules can be applied to the violation of general, mostly customary rules of international law

Second, breaches of treaties related to nuclear activities and damage caused by such activities

This paper will discuss the most relevant rules adopted in this field by the UN International Law Commission and analyzes

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ILC: Every internationally wrongful act of a State entitles the international responsibility of that State

Initially Question arise whether nuclear activities can constitute a breach of international obligations

Answer Found in series of cases: Trail Smelter Case 1941 : Arbitral Award between USA and Canada: No state should use its own

territory and cause transboundary harm by fumes resulting serious consequences

Corfu Channel Case 1949: ICJ affirmed that no State may utilize its territory contrary to the rights of other states

Lake Lanoux 1957 : Arbitral Award between France and Spain : alluded to the violation of the rights of other states that may result from pollution of boundary waters

ICJ advisory opinion 1996: Legality of the Threat or Use of Nuclear Weapons : the existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the Corpus of international law relating to the environment

Gabcikovo-Nagymaros Project 1997: ICJ Repeated itself

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Treaties and Conventions

Antartic Treaty 1959

International

Atomic Energy Agency

1956

Partial Test Ban Treaty 1

963

Convention on

Nuclear Safety 1994

Comprehens-ive Nuclear Test-Ban

Treaty 1996

Espoo Convention

1991

Protocol to the Espoo

Convention 2003

SOLAS Convention

amendment 2001

Aarhus Convention

1998

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Nuclear Accidents and Assistance 1969 IAEA Published directives concerning Procedure to be followed in case of Nuclear Accident

and were further developed in 1981 and 1985 but were not implemented, Implications could be seen in Chernobyl Accident 1986

Chernobyl Accident lead to preparation and Implementation of Two Treaties.Convention on Early Notification of Nuclear Accident 26th Sept 1986

Convention Assistance in Case of Nuclear Assistance or Radioactive Emergency 26th Sept 1986

Nuclear Waste Sates have been indulged in the activity of dumping of Nuclear waste beyond own territory. In order to

overcome this issue initiatives were taken London Convention on Prevention of Marine Pollution by Dumping waste and other Matters 1972 : Non Binding

International Maritime Organization 1994: Binding on all Party States, except Russia

Joint Convention on the Safety of Spent Fuel Management and the Safety of Radioactive Waste Management 1997

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State Responsibility In Nuclear Activity Nuclear Activity Included in

General Obligations result from Customary International Law and entails not to cause transboundary harm, e.g, that the wrongful act should be attributable to the State is included in the customary law principle

Specific Obligations results from treaties, e.g, treaty provisions related to nuclear activities include specific obligations providing for State control on such activities: licensing, surveillance, or even prohibition if necessary

International responsibility is founded on fault imputable to the acting State, it is not necessary that a state intentionally or maliciously violates an international obligation to attribute responsibility.

Damage Caused by a Nuclear Activity Vienna Convention On Civil Liability For Nuclear Damage

Vienna Convention 1963 Article I (1) of this Convention defines Nuclear Damage

A Protocol of September 12, 1997 aforementioned was amended Article 46 of the articles of the International Law Commission, "where several States are injured by the same

internationally wrongful act, each injured State may separately invoke the responsibility of the State which has committed the internationally wrongful act." This implies that customary international law, could have been invoked by each State whose territory was affected by the consequences of the 1986 Chernobyl accident

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ConclusionStates are responsible under

international law for any failure to exercise due diligence over the siting and

operation of nuclear facilities and the transport and disposal of nuclear wastes.

The law of state responsibility allows injured states to bring a claim, however, the problem in defining what constitutes sufficient injury in

this field should be further studied

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