In the Immunity Immunity from Legal Process of a Special Rapporteur case, the ICJ recognized the wellestablished rule of customary international law that the conduct of any organ of a State must be regarded as an act of that State!" # $ther international %udicial decisions ha&e also recognized that the State is responsible for the conduct of its own organs!' )
( nuclear acti&ity is an ultra-hazardous acti&ity that possesses a danger that is rarely e*pected to materialize but might assume, on that rare occasion, gra&e ! ! ! proportions!" + (s such, nuclear acti&ities are go&erned by a strict-liability regime rather than one of due diligence! In the absence of reciprocal acceptance of ris, maing the &ictim suffer is not an attracti&e policy!". /nder the theory of strict liability, the installation State is ultimately responsible for controlling nuclear acti&ities under its %urisdiction! 0 1hile the operator of a nuclear installation is responsible forr the fo the da dail ily y op oper erat atio ions ns an and d for for en ensu suri ring ng compl complia ianc ncee wi with th re regu gula lato tory ry re re2u 2uir irem emen ents ts,, th thee installation State is responsible for deciding to permit nuclear acti&ities in the first place, for 1 Immunity from Legal Process of a Special Rapporteur, ICJ Reports, #333, pp!.', 405 #'# ILR, p!).0! Responsibility of States for Internationally Internationally Wro Wrongful ngful Acts, Acts, art! ', /!6! 7oc! (8.8+39:ol! I;8Corr!+!, art! 2 Responsibility +, comm! )! 9'<<#; =hereinafter Responsibility for 1rongful (ct (cts>5 s>5 See See,, e.g. e.g.,, Claims of Italian 6ationals, /6RI((, &ol! ?: 9Sales 6o! ..!:!)!;, ..!:!)!;, pp! )33 9Chiessa claim;, +<# 9Sessarego claim;, +<+ 9Sanguinetti claim;, +<0 9:ercelli 9:ercelli claim;, +<4 9@ueirolo claim;, +<3 9Roggero claim; and +## 9Aiglia claim;5 Sal&ador Commercial Company, ibid!, &ol! ?: 9Sales 6o! ..!:!) ..!:!)!;, !;, p!+, at p!+00 9#3<';5 and Binnish Shipowners 9r! Drit!8Bin!; , ibid!, &ol! III 9Sales 6o! #3+3!:!'!, #3+3!:!'!, p!#+03, at p!#<# 9#3)+;!" SE(1, I6FGR6(FI$6(L L(1 444 9'<#<;! 3 A(LC$LA SE(1,
4 Draft Articles Articles on Prevention Prevention of Transboundary Transboundary Harm Harm from Haardou Haardouss Activities, !it" commentaries, commentaries, art! #, comm!', /!6! 7oc! (8.8#<5 (8.8#<5 $(R, )d Sess!, Supp! 6o! #< 9'<<#;! $ompensation for Harm $aused %y &uclear Activities Activities,, ) 7G6:! J! 5 Jon A! :an 7ye , #iability and $ompensation I6FHL L! P$LH #), ' 9'<<.;! 'nergy and International International #a!( An 'nvironmental 'nvironmental Perspective Perspective,, .< DRIF! !D! !D! 6 (lan G! Doyle , &uclear 'nergy I6FHL L! '0, '3+ 9#33<;!
licensing the particular installation, for enacting and enforcing safety legislation, for inspecting and monito monitorin ring g the instal installat lation ion and its its conse2 conse2uenc uences, es, and for arrang arrangemen ements ts for emergen emergency cy response!4 Decause the State has ultimate control o&er the nuclear installation, it must ensure that the installation does not cause damage in the territory of other States! 3 #<
/nder nuclear law, law, the continuous control principle states that e&en in circumstances where authorization has been granted to conduct certain acti&ities, the operator of a nuclear installation must retain the ability to monitor those acti&ities so as to ensure that they are being conducted safely and securely securely!!## (ll liability is channeled e*clusi&ely to the operator, regardless of whose acts or omissions were the actual cause of the accident! Regarding the carriage of nuclear substances, liability remains with the sending operator until responsibility is transferred to the recei&ing operator! #' ( written contract between the sending and recei&ing operator may shift liability from one operator to the other at a certain transport #)
stage! Femporary storage of spent fuel lea&es ownership and liability with the entity that generated generat ed the spent fuel! In contrast, permanent permanent storage storage transfers transfers ownership ownership and liability to the entity managing the final storage, disposal, or reprocessing of the spent fuel! Aost nuclear substances that are no longer used are held in temporary storage, awaiting arrangements for final disposal!#+ 8 Id. 9 Id .
10 C(RLF$6 SF$IDGR GF (L!, E(67D$$ $6 6/CLG(R L(1 + 9'<<); 96uclear law is Fhe body of special legal legal norms created to regulate the the conduct of legal or natural persons engaged in acti&ities related to fissionable materials, ionizing radiation and e*posure to natural sources of radiation!";! 11 Id. at ). $GC7, supra supra note 0, at '+! 12 $GC7,
13 SF$IDGR GF (L!, supra note #<, at ##.! 14 $GC7, supra note 0, at ##4!
2 | Page
Fhe Joint Con&ention reaffirms the ultimate responsibility of the State for the safety of spent fuel!# (rticle '# mandates each Contracting Party to ensure that the prime responsibility for the spent fuel rests with the license holder and to tae appropriate steps to ensure that the license holder meets its responsibility!#. If there is no license holder or other responsible party, the responsibility rests with the Contracting Party ha&ing %urisdiction o&er the spent fuel! Customary international law re2uires States to ensure that acti&ities under their %urisdiction or control do not cause damage to the resources, people, or en&ironment of other States! #0 Fhe noharm rule is affirmed by Principle '# of the Stocholm 7eclaration, Principle ' of the Rio 7eclaration, Principle ) of the Con&ention on Diological 7i&ersity 9CD7";, and international cases,#4 including the #330 *abci+ovo&agymaros Pro-ect case! case !#3 Fhis principle compels States to mitigate detrimental effects on the territories of other States and to pay compensation for damage suffered!'< Fhe (ssistance (ssistance Con&ention Con&ention establishe establishess an internation international al framewor framewor for cooperation and mutual mutual '# assistance in the e&ent of a nuclear accident or radiological emergency! Fhe duty to cooperate is well-established in customary international law and is affirmed by Principle '+ of the Stocholm
1aste 15 Joint Con&ention on the Safety of Spent Buel Aanagement and on the Safety of Radioacti&e 1aste Aanagement pmbl! :i, Sept! , #330, '#) /!6!F!S! )0! =hereinafter Joint Con&ention>!
16 Joint Con&ention, art! '#9#;!
:an 7 7ye, ye, supra supra note 4, at #)! See Legality of the Fhreat or /se of 6uclear 1eapons, (d&isory 17 :an $pinion, #33. I!C!J! ''. 9July 4;!
18 See Frail Smelter (rbitration (rbitration 9/!S! &! Can!;, ) R!I!(!(! #3< 9#3)4 #3+#;5 and Corfu Channel Case 9/!! &! (lb!;, #3+3 I!C!J! + 9(pr! 3;!
19 abcio&o-6agymaros Pro%ect 9Eung! :! Slo&!; #330 I!C!J! 0, M ) 9Sept! ';! 20 SF$IDGR GF (L!, supra note #<, at 03! 21 I(G(, International Freaties for which the I(G( 7irector eneral is 7epositary, httpK88ola!iaea!org8ola8whatNw httpK88ola!iaea!o rg8ola8whatNweNdo8deposito eNdo8depositoryNfunctions!asp ryNfunctions!asp
3 | Page
7eclaration, Principle 0 of the Rio 7eclaration, Principle of the CD7, and international cases, '' including the *abci+ovo&agymaros Pro-ect !') Affecting Affec ting Nation Nation must compensate compensate Effecte Effected d Nation for for the medical medical claims of the residents. residents.
Fhere is e&idence of state practice for compensating long-term medical claims! In response to the #34. Chernobyl catastrophe, /raine accepted responsibility for co&ering medical e*penses, including regular medical monitoring e&ery three-to-fi&e years to confirm radiation disability and e&aluate treatment results! /raineHs programs co&ers se&en million indi&iduals now recei&ing or eligible for special allowances and health benefits! (dditi (dd itional onally ly,, the /nited /nited States States recogn recognizes izes fear of cancer cancer"" claims claims under under the theori theories es of emotio emo tional nal distre distress, ss, enhanced enhanced ris ris of diseas diseasee claims claims,, and claims claims for medica medicall monito monitorin ring! g! '+ Regarding claims for medical monitoring, the plaintiff is allowed to reco&er anticipated costs of long-term diagnostic testing necessary to detect latent diseases that may de&elop as a result of tortious e*posure to to*ic substances!"' It is a general principle of international law that a breach of an international obligation in&ol&es a duty to mae reparation, first recognized in the Bactory at Chorzow case! '. Fhere, the Permanent
22 See Lae Lanou* (rbitration 9Br! &! Sp!;, #' R!I!(!(! '4# 9#30;5 Ao* Plant Case 96o! #<; 9Ir! &! /!!;, +# I!L!A! +< 9IntHl Frib! L! of the Sea '<<#; 9opinion of Judge 1olfrum;5 Concerning Land Reclamation by Singapore in and (round the Straits of Johor 96o! #'; 9Aalay! &! Sing!;, #'. I!L!R! +40, M 33 9IntHl Frib! L! of the Sea '<<);!
23 *abci+ovo&agymaros at M #+0! 24 See Aetro-6orth Commuter Railroad Co! &! Ducley, '# /!S! +'+, +'3-)# 9#330; 9emotional distress claims;5 ideon &! Johns-Aan&ille Sales Corp!, 0.# B!'d ##'3, ##)0 9th Cir! #34; 9enhanced ris of disease claims;5 and 1! :a! Rezulin Litigation &! Eutchinson, 4 S!G!'d ', 0) 91! :a! '<<.; 9medical monitoring claims;! :an 7 7ye, ye, supra supra note #0, at ++! 9citing Dower &! 1ashington Glectric Corp!, '' S!G!'d +'+, +'3 91! 25 :an :a! #333;;! SE(1, supra supra note ), at 4<#5 see 4<#5 see also F(RCISI$ E(R7A(6 RGIS, C$APG6S(FI$6 B$R 26 SE(1, G6:IR$6AG6F(L 7(A(GS /67GR I6FGR6(FI$6(L L(1 4) 9'<##;!
4 | Page
Court of International Justice emphasized that reparation must, as far as possible, wipe out all the conse2uences of the illegal act and re-establish the situation which would, in all probability, ha&e e*isted if that act had not been committed!"'0 Fhis principle has been reaffirmed by numerous ICJ decisions,'4 in incl cludi uding ng the *abci+ovo &agymaros Pro-ect in in which the ICJ declared that it is a well-established rule of international law that an in%ured State is entitled to obtain compensation from the State which has committed an internationally wrongful act for the damage caused by it!" '3 (n internationally wrongful act of a State consists of an action or omission that 9#; is attributable to the State under international law and 9'; constitutes a breach of an international obligation of the State! )< TREATY OBLIGATIONS !ST BE "ER#ORE$ IN GOO$ #AIT%.
States ha&e the so&ereign right to enter en ter into binding treaties with other States!)# Fhe principl principlee of pacta sunt servanda, servanda, as described in the :ienna Con&ention on the Law of Freaties 9:CLF;, states that e&ery treaty in force is binding upon the parties to it and must be performed by them the m in good faith!" Fhe proposition of performing a treaty in good faith is one of the oldest principles of international law )' and has been recognized by the ICJ in the 6uclear Fests Cases,)) the Ailitary Paramilitary (cti&ities in and (gainst 6icaragua case, )+ and the
(;; 6o! #0, M #' 9Sept! #);! 27 Bactory at Chorzow 9erm! &! Pol!;, #3'4 P!C!I!J! 9ser! (
28 See ICJ, Rainbow 1arrior (rbitration 96!O! &! Br!; 9#33<; 4' ILR +335 Con&ention on the Pre&ention and Punishment of enocide 9Dosn! Eerz! &! ugo ugosl!; sl!; #33.! I!C!J! Reports 9July ##;, p! 35 see also A8: Saiga 96o! '; Case 9Saint 9 Saint :i :incent ncent and the renadines &! uinea;, IFL$S #'< ILR, pp! #+), #33!
29 abcio&o-6agym abcio&o-6agymaros aros Pro%ect 9Eung! &! Slo&!; Slo&!; #330 I!C!J! 0, 04 9Sept! ';! 30 Responsibility for 1rongful (cts, supra note '! 31 :ienna Con&ention on the Law of Freaties, Aay '), #3.3, ## /!6!F!S! ))#, prmbl! 9Fhe con&ention recognizes that free consent and of good faith and the pacta sunt ser&anda rule are uni&ersally recognized!";!
32 SE(1, supra note ) at 3<)-<+!
5 | Page
Legalit Lega lity y of the Fhreat Fhreat of /se of 6uclea 6uclearr 1eapons apons case! case!
)
$ne aspect of fulfilling a treaty
obligation in good faith re2uires that States act with the general obligationto refrain from acts which would defeat the ob%ect and purpose of a treaty to which they are members!"). A&TIONS A&TION S '%I&% ARE NOT TO BE E(&!SE$ E(&!SE$ !N$ER T%E GAB&I)O*O+ GAB&I)O*O+ NAGYAROS NAGY AROS STAN$ STAN$AR$. AR$.
In the *abci+ovo&agymaros *abci+ovo&agymaros Pr Pro%e o%ect ct,, Eung Eungary ary ra rais ised ed th thee de defe fens nsee of im impo poss ssib ibil ilit ity y of performance as reason for why it should not be re2uired to comply with its contractual obligations!)0 Specifically, Eungary had entered into a treaty with Czechoslo&aia in which Eungary promised to assist with the construction of a series of dams along the 7anube Ri&er! )4 1hen the pro%ect became unpopular due to economic problems, Eungary wished to withdraw from the pro%ect and be e*cused from its treaty obligations! )3 Fhe ICJ e*plained that ha&ing serious financial difficulties is not enough to e*cuse a stateHs treaty obligations under the doctrine +<
of impossibility! impossibility! Fo support its decision, the ICJ cited (rticle .# of the :CLF, which re2uires
Fests 9(ustl!, 9(ustl!, 6!O! &! Br!;, Br!;, #30+ I!C!J! ') 97ec! 97ec! '<;! 33 6uclear Fests 96icar! &! /!S!;, #34+ I!C!J! )3' 9Jun! '0;! 34 6icaragua Case 96icar! 1eapons, (d&isory (d&isory $pinion, #33. I!C!J! )< 9July 4 ). 35 Legality of the Fhreat or /se of 6uclear 1eapons,
36 Eelge Glisabeth Oeitler, *ood /ait"0 in t"e WT1 2urisprudence &ecessary %alancing 'lement or an 1pen Door to 2udicial Activism3, 4 J! I6FL! GC$6! L! 0'#, 0)< 9'<<; 9citing Panel Report, 4nited StatesImport Pro"ibition of $ertain S"rimp and S"rimp Products, Products , 1F87S48R, # Aay #334, para 0!+#;! abcio&o-6agymaros aros Pro%ect 9Eung! &! Slo&!; Slo&!; #330 I!C!J! 0, M #<' 9Sept! ';! 37 abcio&o-6agym
38 Id 39 Id 40 Id
6 | Page
the Qpermanent disappearance or destruction of an ob%ect indispensable for the e*ecutionH of the treaty to %ustify the termination of a treaty on grounds of impossibility of performance!"+# A&TIONS A&TION S '%I&% '%I&% ARE ARE NOT E(&!SE E(&!SE$ $ !N$ER N!&LEAR N!&LEAR LA' LA'.
/nder nuclear law, the operator of a nuclear facility remains liable for a nuclear incident caused by a force ma%eure! Fhe only types of e&ents that e*onerate an operator from liability are armed conflicts, ci&il wars, gross negligence of the &ictim, or an act or omission the &ictim committed with the intent to cause harm!
A&TIONS A&TION S '%I&% '%I&% ARE ARE NOT E(&!SE E(&!SE$ $ BY T%E NE&ESSITY NE&ESSITY $O&TRINE. $O&TRINE.
If a State breaches an international obligation out of necessity its wrongful act may be e*cused! +' Fhe ICJ has adopted a fi&e-part test for determining whether a state of necessity e*istsK 9#; the breach must ha&e been to protect an essential interest of the state which is the author of the act5 9'; a state interest must ha&e been threatened by a gra&e and imminent peril5 9); the act must ha&e been the only o nly means of safeguarding that interest5 9+; that act must not seriously impair an essential interest of another the State5 and, 9; the state which is the author of the act must not ha&e contributed to the occurrence of the state of necessity!