As more and more countries turn to nuclear energy to address their electricity needs, adopting a comprehensive legal framework for nuclear is critical to the successful deployment of this energy source
By Xiaodong Yang and Alix Troubat, IAEA Office of Legal Affairs
A key element of this framework is legislation addressing civil liability for nuclear damage and compensation in the unlikely event of a nuclear incident causing off-site damage. Such legislation provides for both effective compensation of potential victims and legal clarity on nuclear liability matters necessary for the nuclear and insurance industries.
In the unlikely event of a major nuclear incident, nuclear damage can affect people, property and the environment in the State where the incident occurred and potentially in other States.
The international instruments addressing civil liability for nuclear damage ensure prompt and meaningful compensation for victims without lengthy litigation and on an equal basis, including for victims across borders.
This compensation system aims to reduce hardships for victims and is ready to activate immediately if a nuclear incident were to occur.
What is nuclear liability?
Nuclear liability addresses questions of liability and compensation in the unlikely event of a nuclear incident that causes off-site damage. It deals with such matters as to what types of damage are compensable, who is eligible for compensation, who is liable and must pay for the damage, funding requirements for compensation, and which court will handle compensation claims.
By settling these issues in legislation before an incident occurs, many of the delays, disputes and uncertainty for victims normally associated with questions of compensation for industrial accidents are avoided. In addition, nuclear suppliers, contractors and operators understand more clearly the extent of their liabilities.
What is nuclear damage?
Nuclear damage includes loss of life, personal injury and property damage caused by a nuclear incident in a nuclear installation or during transport of nuclear material to or from an installation. It excludes damage to the installation itself and may exclude damage to the means of transportation in the event of an incident during transport. All nuclear liability instruments apply this definition. More recent instruments expand the scope of nuclear damage to also include harm to the environment, preventive measures and economic loss.
Who is liable for nuclear damage?
Under the international nuclear liability instruments, liability for nuclear damage caused by a nuclear incident involving a nuclear installation rests exclusively with its operator. No other person may be held liable for nuclear damage. Injured parties do not have to prove fault or negligence on the part of the operator; they only need to show that the damage suffered was caused by the nuclear incident.
The operator’s liability is limited in time. Clear timelines help ensure that claims are handled in an orderly and predictable way.
What facilities are covered by the special nuclear liability regime?
Generally speaking, the nuclear liability regime applies to nuclear reactors, certain nuclear fuel manufacturing facilities, enrichment and reprocessing facilities, and facilities for the storage and disposal of radioactive waste. These are referred to as nuclear installations. The regime also applies to certain nuclear fuels and radioactive wastes that are being transported to or from such installations.
What happens in case of a nuclear incident during transport?
Liability for nuclear damage generally lies with the sending operator until the receiving operator assumes liability according to contract or, if there is no contract, once the receiving operator takes charge of the material. This is due to the fact that the sending operator is responsible for compliance with applicable transport regulations. In some cases, at the request of the carrier and with the consent of the operator, the carrier of the material can be liable instead of the operator.
How much compensation is available?
The international nuclear liability instruments set out minimum liability requirements, but national governments are recommended to establish liability limits that exceed those limits. Operators must maintain insurance or other financial security to ensure that compensation is readily available for potential claimants. In many jurisdictions, national governments supplement the available funding with public funding provided by the national government or through international funds.
Who has jurisdiction over compensation claims?
Exclusive jurisdiction is granted to a single court, determined by national law, usually in the State where the nuclear incident has occurred. This simplifies the process and avoids victims having to file claims in more than one country. It also helps ensure consistent and efficient decisions.
How is compensation determined?
The forms and content of compensation are determined by the national law of the State whose courts have jurisdiction over a particular nuclear incident.
Why is nuclear liability important for countries with nuclear power programmes?
A robust nuclear liability framework based on the international legal instruments enhances a State’s ability to respond effectively if a nuclear incident occurs. It ensures clear and harmonized rules, predictable procedures and protection that extends beyond national borders. It also builds public trust in and support for the nuclear industry.
Clear and harmonized rules. By joining the international conventions, States apply common standards for legal and financial protection following a nuclear incident. These instruments prevent gaps in national laws and ensure consistent treatment of victims, especially if an incident has cross-border impacts.
Predictable procedures. The global nuclear liability regime provides clarity on essential questions, including who is legally responsible for nuclear damage, what types of damage can be compensated, who can file a claim, which court has jurisdiction, and how much compensation is available.
Protection that extends beyond national borders. The conventions are designed to handle situations involving transboundary damage affecting neighbouring or coastal States, as well as incidents involving international transport of nuclear materials.
Public trust in and support for the nuclear industry. Clear liability rules provide legal certainty for the public, suppliers, investors and insurers.
Why is nuclear liability important for countries considering nuclear power?
A robust nuclear liability framework is an essential element of the legal infrastructure for nuclear energy. It ensures that, in the unlikely event of a nuclear incident, victims are compensated for nuclear damage fairly and efficiently. It also ensures that the terms of liability are sufficiently clear to instil investor confidence. Nuclear industry suppliers, contractors, operators, investors, and insurers are unlikely to participate in nuclear development without the clarity provided by a national nuclear liability framework that reflects the principles of the international nuclear liability instruments.
Do countries without nuclear power need nuclear liability?
Nuclear liability serves the interests of non-nuclear countries that have nuclear neighbours because nuclear liability covers cross-border nuclear damage, including environmental harm and health effects. It ensures that in the event of a nuclear incident in a neighbouring country, the citizens and residents of the non-nuclear State would receive prompt and adequate compensation with minimal or no litigation or other burdens and on equal footing with people in the country where the incident occurred.
Nuclear liability is also important for transit States and coastal States where nuclear materials pass through ports or maritime zones. For example, a coastal State affected by a nuclear incident during maritime transit or while in port would have exclusive jurisdiction over claims for nuclear damage. Since most claimants would likely be situated in the coastal State, joining a nuclear liability instrument would give its citizens access to prompt and meaningful compensation for nuclear damage.
How does the IAEA support States in the area of nuclear liability?
The IAEA plays a key role in helping States establish and strengthen comprehensive national legal frameworks for nuclear liability. It also supports States’ efforts to raise awareness among decisionmakers, policymakers and legislators of the international nuclear liability instruments and to promote adherence to these instruments.
The IAEA helps States to establish and strengthen national nuclear liability legislation by reviewing draft legislation. It also provides capacity building activities for relevant officials and publishes reference and guidance materials on nuclear liability.
The IAEA does not adjudicate claims or provide compensation. These matters are handled at the national level in accordance with applicable law.
What are the international legal instruments that form the international legal framework for nuclear liability?
The nuclear liability conventions are designed to ensure that in the unlikely event of a nuclear incident, prompt and meaningful compensation will be available to victims with minimal or no litigation. They include:
the Vienna Convention on Civil Liability for Nuclear Damage and the Protocol to amend it,
the Paris Convention on Third Party Liability in the Field of Nuclear Energy as amended by the 2004 Protocol,
the 1963 Brussels Convention Supplementary to the Paris Convention as amended by the 2004 Protocol,
the Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention,
the Convention on Supplementary Compensation for Nuclear Damage and its Amendment.
