State Responsibility and Liability for Environmental Damage Caused by Nuclear Accidents

Transcription

1 State Responsibility and Liability for Environmental Damage Caused by Nuclear Accidents Proefschrift ter verkrijging van graad van doctor aan Tilburg op gezag van de rector magnificus, prof. dr. Ph. in openbaar te ten overstaan van een door college voor promoties aangewezen commissie in de aula van de Universiteit op woensdag 26 September om uur Saved Mohamed door geboren op januari Fgvptc

2 CONTENTS Acknowledgements Abbreviations iv xv 1 INTRODUCTION 1 The benefits and hazards of nuclear energy: Two sides of the same coin The of the study 2 Uiability problems and the response at the international level 4 Motivation for the research and review of the literature 1.5 The main research questions 17 Methodology Structure and organization of the study PART ENVIRONMENTAL DAMAGE CAUSED BY MAJOR NUCLEAR ACCIDENTS Introduction MAJOR ACCIDENTS: FACTUAL BACKGROUND 29 Introduction Nuclear incident or nuclear accident Major nuclear accidents The accident The Chalk River accident The Cosmos 954 accident The Three Mile Island accident The Chernobyl accident accident The Fukushima Nuclear Accident Types of nuclear accidents 43 Internal accidents External accidents Transboundarv accidents 44

3 Contents 2.5 Conclusions 46 3 REPARABLE ENVIRONMENTAL NUCLEAR DAMAGE: LEGAL 3.1 Introduction Damage, harm and 3.3 Definition of the concept of nuclear damage Scope Material and physical environmental damage 57 Personal damage Property damage Environmental damage Definition of the environment Definition of environmental nuclear damage 67 Type of compensable environmental nuclear damage 70 Environmental damage to person or property Damage to the environment per se Costs of preventive measures 75 Costs of measures to reinstate the impaired environment Economic damage Legal damage and transboundary environmental consequences Conditions of compensable nuclear damage 93 A nuclear accident or nuclear A accident as criterion of liability A nuclear installation as a criterion of Actual damage Proof of causality Significant damage The damage may not be compensated twice 1 OS 3.6 Conclusions 49 II: THE PRIMARY OBLIGATIONS FOR THE PREVENTION AND REDUCTION OF ENVIRONMENTAL NUCLEAR DAMAGE: Introduction

4 STATE RESPONSIBILITY AND LIABILITY FOR ENVIRONMENTAL DAMAGE CAUSED BY NUCLEAR ACCIDENTS 4 THE OBLIGATION OF PREVENTION AND REDUCTION AS AN ESSENTIAL OBLIGATION FOR STATE RESPONSIBILITY FOR ENVIRONMENTAL DAMAGE CAUSED BY NUCLEAR ACTIVITIES 4.1 Introduction 4.2 Is the obligation of prevention a general norm or a general principle or a principle of customary international law? 4.3 The obligation of a State to prevent and reduce environmental nuclear damage 125 The obligation of a State not to cause environmental damage to other States Preventive measures The principle of due diligence The precautionary principle The duty of cooperation to control nuclear activity 4.5 Conclusions THE PROCEDURAL RULES AND OBLIGATIONS UNDER INTERNATIONAL LAW FOR CONSTRUCTION OF A NUCLEAR IMPLEMENTATION OF THE OBLIGATION OF PREVENTION AND REDUCTION OF ENVIRONMENTAL DAMAGE 5.1 Introduction 5.2 Pre-accident obligations: The duty of a State to control a nuclear activity Obligations of the State to ensure the safe operation of a nuclear installation The establishment of a legislative and regulatory regime Designation of the liable person 162 Environmental impact assessment Prior authorization Ensuring the safety of nuclear reactor installations The obligations to provide information necessary to prevent and reduce environmental damage Prior notification Consultation Negotiation Exchange of information Providing information to the public 205

5 Contents 5.3 Post-accident obligations: Notification and in event of a accident The principles of notification and assistance in general rules of international law The Notification Convention The 1986 Assistance Convention Conclusions 222 III: STATE RESPONSIBILITY AND LIABILITY FOR ENVIRONMENTAL DAMAGE A INTERNATIONAL LAW: REPARATIVE FUNCTION OF INTERNATIONAL LIABILITY 227 Introduction THE LIABLE PERSON AND APPLICABLE REGIME OF LIABILITY FOR ENVIRONMENTAL DAMAGE CAUSED BY A NUCLEAR ACCIDENT Introduction Primary liability of the operator: Rejection of State intervention Secondary liability: Intervention by the State as a public Residual liability: Intervention by the State as an international entity Combination and integration of State and civil liability Interrelationship of the two regimes: The need for combination Introduction of international elements into the nuclear liability regime Introduction of civil liability elements in the international regime Procedural integration international ad hoc forum The European Nuclear Energy Tribunal The International Claims Tribunal International Claims Commission Applicable law 6.6 Conclusions 74

6 STATE RESPONSIBILITY AND LIABILITY FOR ENVIRONMENTAL CAUSED BY NUCLEAR ACCIDENTS 7 STATE RESPONSIBILITY FOR VIOLATING ENVIRONMENTAL OBLIGATIONS RELATED TO NUCLEAR ACTIVITIES 277 Introduction State responsibility as a general principle and its application to environmental nuclear obligations: The ILC approach An internationally wrongful act as a source of State responsibility for the violation of environmental and nuclear obligations 288 The definition of an internationally wrongful act Characterization of an internationally wrongful act The required constitutive elements for State responsibility for a wrongful act related to a nuclear activity 294 Attribution of a wrongful act to the State for its violation of environmental and nuclear obligations: the subjective element Conduct of the organs, agents and representatives of a State 296 Acts of the officials 296 Acts of 298 Exceeding the competence 304 Conduct of private operators and related to a nuclear activity A breach of nuclear and environmental obligations: The objective element 312 Forms of violation: The commission and omission of an act Standard of conduct: Obligations relating to conduct and obligations relating to results Serious breaches of peremptory norms: International environmental crime The existence and duration of the breach Circumstances precluding wrongfulness: Exoneration from responsibility for the violation of environmental and nuclear obligations Definition of circumstances precluding wrongfulness State consent Self-defence 330 Countermeasures 331 Force majeure and fortuitous events 333 Distress Necessity 336

7 Contents Consequences of invoking a circumstance precluding wrongfulness Conclusions THE ABSOLUTE LIABILITY OF A STATE FOR ENVIRONMENTAL DAMAGE CAUSED BY A NUCLEAR ACCIDENT 343 Introduction The principle of strict liability a basis of nuclear liability The rejection of fault liability as a basis of nuclear liability Justification of strict liability as a basis of nuclear liability The concept of nuclear liability: Strict or absolute liability? Strict liability of the State for environmental nuclear damage State liability for environmental damage caused by hazardous lawful activities: The ILC approach The focus of the ILC Draft Articles on State Liability for Environmental Damage The general principle of strict State liability Conventions on strict State liability General principles of law Doctrinal position and customary environmental international law principles State practice and judicial decisions Civil liability regimes on strict liability for environmental nuclear damage The nuclear liability conventions 388 Multilateral nuclear liability conventions Bilateral nuclear agreements National nuclear legislation The ILC principles of allocation of loss Similar environmental conventions Strict liability and the Principle The relationship between strict civil nuclear regimes and the general rules of international law: Strict State liability and wrongful act responsibility 8.7 Conclusions 423

8 STATE RESPONSIBILITY AND LIABILITY FOR ENVIRONMENTAL DAMAGE CAUSED BY NUCLEAR ACCIDENTS 9 THE LEGAL CONSEQUENCES OF LIABILITY AND RESPONSIBILITY FOR ENVIRONMENTAL DAMAGE CAUSED BY A NUCLEAR ACCIDENT Introduction The relationship between responsibility and the legal consequences of liability Cessation and non-repetition of illegal acts: Cessation of illegal nuclear activities and acts Reparation of environmental nuclear damage 440 The concept and nature of reparation and the balance of interests of the impaired environment and the State Forms of reparation 444 Restitution and reinstatement of the impaired environment by a nuclear accident Compensation for environmental damage caused by a nuclear accident 447 Compensation and reparation of damage Assessment of compensation for environmental damage Assessment of compensation under the nuclear liability conventions Assessment of compensation under the general rules of international law Claims for compensation for environmental nuclear damage Satisfaction as a means of reparation for nuclear damage Conclusions 476 PART IV: SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS 479 INTEGRATION OF INTERNATIONAL AND CIVIL NUCLEAR LIABILITY ACCIDENT Introduction Summary of conclusions 483 Progress and development of rules and functions of liability 484 No liability without damage: The relationship between damage and liability 488 A

9 Contents Functions international liability 492 The preventive function The reparative function The person who is liable and the applicable regime of liability The origin and source of liability The legal consequences of responsibility and liability The relationship between State responsibility, State liability and civil liability Recommendations 507 A single instrument for civil and international liability (comprehensive regime) The ratification of the recent instruments and the implementation of their provisions in national An international court for nuclear disputes (procedural rules) The creation of standards for the assessment of environmental damage The follow-up and further research 10.4 Final conclusion 513 Bibliography Table of conventions Table of documents of international institutions 587 Table of international case law 609 Index