TL: CLAIMS PROCEDURES IN RESPECT OF NUCLEAR ACCIDENTS HAVING TRANSBOUNDARY CONSEQUENCES SO: Greenpeace International (GP) DT: December 6, 1991 Keywords: nuclear power accidents legal europe safety liability iaea conferences austria / AIDE-MEMOIRE Prepared by Greenpeace International for the Fourth Session of the Standing Committee on Nuclear Liability of the International Atomic Energy Agency 2-6 December 1991 Vienna, Austria INTRODUCTION The IAEA Standing Committee on Nuclear Liability (the IAEA Standing Committee) is currently considering amendments to the 1963 Vienna Convention on Civil Liability (the 1963 Convention) relating to the procedure for settling claims relating to nuclear incidents covered by the 1963 Convention. This Aide-Memoire develops the ideas set out by Greenpeace International in its earlier Aide-Memoire of September 1990. It takes into account some of the suggestions put forward by a number of participating countries, as well as those of the IAEA Secretariat. Specifically, it identifies and considers: (a) the existing rules and their inadequacies; (b) some of the amendments proposed during the first, second and third sessions of the IAEA Standing Committee; (c) some options for alternative approaches. It concludes with a specific proposal recommending that Article XI of the Vienna Convention be amended to ensure that the new procedures are: accessible to victims and potential victims; sufficient to warrant the confidence of victims and potential victims; capable of dealing with a massive number of claims from across the globe, in the event of a nuclear incident having major consequences; and able to settle inter-State claims. In this regard, Greenpeace International proposes that the claims procedures under the 1963 Convention be amended to establish an International Tribunal which would have compulsory jurisdiction to receive both civil and State claims arising under the 1963 Convention, and the general rules of international law, by any State on behalf of itself or, at that person's request, any person suffering damage within its territory or having its nationality, or by any other person who has suffered damage. The Tribunal's jurisdiction should be automatically brought into effect once damage passing a certain financial threshold has been passed. In the event that such a threshold has not been reached, jurisdiction could remain with national courts, provided that Article XI of the 1963 Convention is amended to allow victims to have a choice of bringing their claim either to the courts of the State in which the damage was suffered or the courts of the State in which the accident occurred. A CLAIMS PROCEDURES UNDER THE 1963 VIENNA CONVENTION Article XI of the Vienna Convention provides: 1 Except as otherwise provided in this Article, jurisdiction over actions under Article II shall lie only with the courts of the Contracting Party within whose territory the nuclear incident occurred. 2 Where the nuclear incident occurred outside the territory of any Contracting Party, or where the place of the nuclear incident cannot be determined with certainty, jurisdiction over such actions shall lie with the courts of the Installation State of the operator liable. 3 Where under paragraph 1 or 2 of this Article, jurisdiction would lie with the courts of more than one Contracting Party, jurisdiction shall lie - a) if the nuclear incident occurred partly outside the territory of any Contracting Party, and partly within the territory of a single Contracting Party, with the courts of the latter; and b) in any other case, with the courts of that Contracting Party which is determined by agreement between the Contracting Parties whose courts would be competent under paragraph 1 or 2 of this Article. Following the Chernobyl accident, there is broad agreement that Article XI needs to be amended, although disagreement as to precisely how, or how far. Greenpeace International believes that the provision needs to be amended for the following reasons: (a) it imposes an onerous and inequitable burden on the individual claimant, by requiring such claimants, irrespective of where their loss is suffered, to bring their claims to the courts of the State "within whose territory the nuclear incident occurred"; (b) it fails to establish an independent and effective mechanism for processing and dealing with the massive number of civil claims in the event of a major nuclear incident resulting in internationally widespread radioactive fallout; and (c) it fails to establish any mechanism for the settlement of claims at the inter-State level. It is in this context that the issue of claims procedures was introduced at the first session of the IAEA Standing Committee, resulting in a number of proposals being tabled at the second and third sessions. B PROPOSALS FOR AMENDMENTS TO THE CLAIMS PROCEDURE UNDER THE 1963 CONVENTION At the Standing Committee's second session (15 to 19 October 1990), proposals to amend the claims procedure under Article XI were put forward by the delegations of Austria, Australia and the Netherlands, as well by the IAEA Secretariat, and the observers from Greenpeace International and the NEA, respectively. The Austrian draft, as revised (16 October 1990), proposed the establishment of an International Claims Tribunal by the addition of six new paragraphs to Article XI (new paragraphs XI.4 to XI.9). The Tribunal would be established following consultations between the "installation State of the operator involved in the incident" and "all States where damage resulting from the incident has occurred within the geographical scope of the Convention" 1. Consultations would be initiated by the Director General of the IAEA not later than three months after the incident 2. In the event of lack of full agreement between the relevant Parties, any State could request the President of the ***ICJ to establish the Tribunal 3. With full agreement of the relevant parties, they could opt to use the present procedure established under Article XI of the Convention. Once the Tribunal had been established, it would have exclusive jurisdiction over all actions under Article II, 4 and would apply "the present Convention and all other relevant provisions of international law as well as the national law applicable by the courts under para.1." 5 The claimant States would be entitled to "choose to represent in addition to its own claims also all other claims for nuclear damage on its territory resulting from the incident" 6. The Netherlands proposal (4 October 1990) would establish an International Claims Settlement Tribunal under a new Article XI.A to the Convention. The proposal is premised on the continued use of Article XI as a point of departure, on the grounds that "access to justice is guaranteed and made as simple as possible", it allows for the better solution of "allocation problems resulting from limitation of liability", and "civil courts are generally accessible for claims by all kinds of persons". The Netherlands proposal is to establish a special tribunal granted with jurisdiction under public international to deal with specific problems in State to state relations. The proposed Tribunal is to have jurisdiction only if all states involved in the consultations initiated by the Director General of the IAEA agree to its establishment 7. Accordingly, any party has the ____________________[footnotes] 1 Austrian proposal, Art XI.4. 2 Ibid. 3 Austrian proposal, Art XI.6. 4 Austrian proposal, Art XI.4. 5 Austrian proposal, proposed Art XI.5. 6 Austrian proposal, Art XI.7. 7 Netherlands proposal, Art XIA(2). right to veto its establishment. The initiative to establish the Tribunal must be taken by a State party to the Vienna Convention 8. Once established, it would have exclusive jurisdiction 9. Only States would be parties in proceedings before the Tribunal. Claimant States would be bound to bring claims on behalf of individuals, as well as those on their own behalf 10. Only the Installation State which was a Contracting Party could be a defendant 11. Once the Tribunal has been established, national courts are to decline any jurisdiction they might have under Article XI 12. The operator shall have the right to submit its views to the Tribunal 13. The Australian proposal 14, in support of an integrated Convention providing for both civil and state liability, would be "for both domestic and international claims mechanisms" and "that the pursuit of claims for extra-territorial damage under an international claims mechanism should be possible at the option of a claimant State" 15. As regards damage to the global commons, "any Contracting party should be able to bring a claim with respect to such damage ... essentially on behalf of the world community." 16 These claims could be brought before the national courts, but Australia considers it "preferable that there be some form of international tribunal" 17: "It need not be a permanent body - the sort of ad hoc claims commission proposed by the Netherlands could be used." 18 The Greenpeace proposal 19 is to amend Article XI.1 to give jurisdiction to the courts of the Contracting Party within whose territory the nuclear incident occurred or with the courts of the Contracting Party which has jurisdiction over the place where the nuclear damage occurred. 20 ____________________[footnotes] 8 Netherlands proposal, Art XIA(1). 9 Netherlands proposal, Art XIA(1). 10 Netherlands proposal, Art XIA(5). 11 Id. 12 Netherlands proposal, Art XIA(7). 13 Netherlands proposal, Art XIA(8). 14 See The Treatment of State Liability: Paper presented by Australia (October 1990), and Nuclear Damage to the Global Commons: Paper presented by Australia (October 1990). 15 Australian proposal on State Liability, paragraphs 14 and 15. 16 Australian proposal on the Global Commons, paragraph 18. 17 Australian proposal on the Global Commons, paragraph 22. 18 Ibid. 19 Greenpeace International, Aide-Memoire: International Liability Issues Under Discussion by the IAEA Standing Committee on Nuclear Liability (Sept 1990). 20 Greenpeace proposal, paragraph 33. With regard to state liability, Greenpeace International supported the establishment of a "special Claims Commission", along the lines of that established under the 1988 Convention on Regulation of Antarctic Mineral Resources or under the US-Iran Claims Tribunal. During an Inter-sessional Period, the Delegations of Austria and Netherlands submitted a revised proposal 21. It purposes a new Article XIA to the Vienna Convention, and establishes a standing International Tribunal 22. The organization of the Tribunal and the status of the judges is to be in accordance with an Annex 23. Within a defined period, the Contracting Parties on the territory of which the incident occurred, which is the Installation State, and on the territory of which damage resulting from the incident was suffered, are to notify the Tribunal whether they wish it to have jurisdiction, which shall be exclusive 24. The draft proposes a number of alternatives under which the Tribunal is to have exclusive jurisdiction (ranging from all Parties which notify or just one). 25 Actions can be brought to the Tribunal by any State on behalf of itself or, at that person's request, any person suffering damage within its territory or having its nationality, or by any other person who suffered damage 26. Actions may be brought against the operator 27. Additional draft Articles provide for, international declarations by Contracting Parties at the time of signature 28, the operator's right to intervene 29, the obligation of national courts to decline jurisdiction 30. At the Standing Committee's third session (8 to 12 April 1991) [error]ls to amend the claims procedure under Article XI were put forward by the delegations of Egypt and Israel, and by the IAEA Secretariat. A revised proposal was also submitted by the delegations of Austria and the Netherlands. The Egyptian proposal 31 was to add a new paragraph 4 to Article[error] s would allow the Contracting Party which is the Installation State and the Contracting Party or Parties on the territory of which damage resulting from the incident was suffered may, within a limited period of time, "establish a claims commission which shall have jurisdiction over claims under Article 21 Revised Proposal to amend the Vienna Convention, submitted by the delegations of Austria and the Netherlands (14 February 1991, revising a proposal dated 13 February 1991). [footnotes] 22 Austria/Netherlands proposal, Art XIA(1). 23 Austria/Netherlands proposal, Art XIA(2). 24 Austria/Netherlands proposal, Art XIA(3). 25 Austria/Netherlands proposal, Art XIA(4). 26 Austria/Netherlands proposal, Art XIA(5). 27 Ibid. 28 Austria/Netherlands proposal, Art XIA(6). 29 Austria/Netherlands proposal, Art XIA(7). 30 Austria/Netherlands proposal, Art XIA(8). 31 Settlement of Claims: Proposal by the Delegation of Egypt (10 April 1991). II". The procedure, applicable law and all other matters related to the commission are to be agreed by the Contracting Parties. The Israeli proposal 32 amends the Egyptian proposal by [error] ng that "the rules of this Convention shall apply and not national laws". The IAEA Secretariat proposal 33, prepared at the request of the [error] ssional Working Group (February 1991), consolidates texts considered previously in the Standing Committee. It proposes a new Article XIA to the Vienna Convention, and establishes a standing international Tribunal almost identical to that proposed by Austria and the Netherlands, in February 1991 34. The only significant amendment appears to be the possibility of being able to bring an action against the operator's "insurer or other person providing financial security." 35 The Austrian and Netherlands proposal 36 replaces paragraphs 3 and 4 of the IAEA Secretariat proposal with a single paragraph. This provides for the exclusive jurisdiction of the Tribunal if the damage resulting from the incident is suffered in at least (...) States, and if the Contracting Party on the territory of which the incident occurred or at least (...) Contracting Parties on the territory of which damage was suffered has/have requested. C EXISTING MODELS FOR ALTERNATIVE APPROACHES TO CLAIMS SETTLEMENT The Austrian/Netherlands proposal, and the IAEA Secretariat draft which draws upon it, builds on a number of existing approaches drawing from international precedent and practice. In this regard, and in particular for proposing a procedure which would be accessible to individual claimants and able to settle inter-State disputes, the Austria/Netherlands proposal is to be welcomed. In addition to the proposals outlined above, a number of international conventions establish claims procedure mechanisms which are relevant to the present discussion. Such "models" relate to both national procedures and international procedures. With regard to procedures before national courts, the principal question is whether the victim plaintiff should be able to bring claims otherwise than before the courts of the Contracting Party in which the accident occurred, as currently provided by Article XI(1) of the Vienna Convention. There are clear precedents on which to base such an approach. ____________________ 32 Proposal by the Delegation of Israel (Settlement of Claims) (11 April 1991). 33 IAEA Secretariat: Draft Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage (2 April 1991). 34 IAEA draft, Art XIA(1). 35 IAEA draft, Art XIA(5). 36 Proposal submitted by the delegations of Austria and the Netherlands: Article XIA paragraphs 3 and 4 (April 1991). With regard to potential amendments to the Vienna Convention establishing an international procedure, there are also clear [error]ts to provide guidance for the establishment of an international tribunal or claims commission able to receive claims from individuals as well as claims at the inter-State level. (i) Using national courts In the event that Article XI continues to play some role in an amended treaty, it is proposed that the victim should have a choice of national courts to which claims could be brought: the courts of the State in which the damage occurs or is likely to occur, or the State in which the incident giving rise to the damage took place. This approach is consistent with modern international practise. Thus, Article 5(3) of the 1968 Brussels Convention on Jurisdiction enforcement of Judgements in Civil and Commercial Matters ___________________________________________________________ provides that (a) person domiciled in a Contracting State may, in another Contracting State, be sued ... in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred; The phrase "where the harmful event occurred" was interpreted by the European Court of Justice as far back as 1976 to mean that the plaintiff has an option to commence proceedings either at the place where the damage occurred or the place of the event giving rise to it. 37 (ii) Using international courts and tribunals It is not possible here to provide an exhaustive list of existing precedents and practises of international tribunals and claims commission allowing access to individuals and claims at the inter-State level. The selection which follows is intended to be illustrative, drawing upon recent practises and relevant areas. (a) Claims by individuals The traditional approach to international law provides that only States may be parties to proceedings before international tribunals. In practise, however, this is an approach which began to disappear towards the end of the 19th Century. Mixed claims commissions played a prominent role in the settlement of disputes in the 19th Century. They are bodies founded ad hoc on the basis of international agreements, and established with the objective of settling, in formal and final proceedings, claims -- --------- [footnote] 37 Handelskwekerij GJ Bier BV v Mines de Potasse d'Alsace (case 21/76), (1976) ECR 1735, at 1746-47. ---------- which have arisen between citizens of different States, between citizens of one State and the other State, or between the States themselves. According to one writer: particularly extensive use of mixed claims commissions was made in the settlement of claims against France after the Napoleonic Wars, in the settlement of the United States claims against Mexico after 1838 and 1868, in the settlement of claims of various nations against Chile after 1882 and after Chile's war with Peru and Bolivia (arbitration agreements between 183 and 1886), in the settlement of claims of various countries against Venezuela after a civil war (agreement of 1903), in the claims of neighbour States of Peru after an internal disturbance (settled by a Commission established in 1904), in settlements involving Germany after World Was I, and again in claims of United States citizens against Mexico (Conventions of 1923 and 1924). 38 More recently, in the field of human rights, individuals have been granted the right of access to international bodies to pursue claims directly against States. Article 25 of the European Convention on Human Rights provides that the (European) Commission may receive petitions ... from any person, non-governmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention ... 39 Similarly, Article 44 of the American Convention on Human Rights provides that Any person or group of persons, or any nongovernmental entity legally recognised in one or more member states of the Organization, may lodge a petition with the (Inter-American) Commission (on Human Rights) containing denunciations or complaints of violation of that Convention by a State Party. 40 More recently, in 1981 Iran and the United States agreed to the establishment of a mechanism of binding arbitration under the auspices of the Iranian-United States Claims Tribunal established at the Hague in 1981 to resolve international claims pursuant to international law arising out of Iran's program of nationalization of locally- and foreign-owned enterprises. 41 Once again, ____________________[footnotes] 38 H. von Mangoldt, Mixed Claims Commissions, in Bernhardt (ed.), Encyclopedia of Public International Law, Volume 1, 1981. 39 European Convention on Human Rights, 4 November 1950. 40 American Convention on Human Rights, 22 November 1969. 41 Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Governments of the United States of America and the Government of the Islamic Republic of Iran, 20 ILM 230 (1981). individuals have the right to bring their claims directly to the Tribunal, and many thousands have done so. (b) Inter-State claims From the International Court of Justice to arbitration, the procedures available for establishing procedures to settle inter- State claims are numerous 42. For the purposes of amending the 1963 Convention, two examples are particularly relevant. The first is the procedure established under the 1972 Convention on International Liability for Damage Caused by Space Objects. This provides that if no settlement of a claim is arrived through diplomatic negotiations within one year from the date on which the claimant State notifies the launching State that it has submitted the documentation of its claim, the parties concerned shall establish a Claims Commission. 43 In the event that one party fails to appoint a member to the Claims Commission, the Chairman shall, at the request of the other party, constitute a single-member Claims Commission 44. The Commission shall decide on the merits of the claim, and determine the amount of compensation payable. 45 The second is the procedure established by Security Council Resolution 687 of 3 April 1991 which creates a fund to pay compensation for claims arising out of Iraq's unlawful invasion of Kuwait, and establishes a Commission to administer the fund 46. The fund will meet claims, brought by States on behalf of themselves, and their nationals, for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq's unlawful invasion and occupation of Kuwait. 47 D CONCLUSIONS There are a large number of precedents to support amendment of the 1963 Convention. Taking these and current practises into account, Greenpeace International proposes that the claims procedures under ____________________[footnotes] 42 See, for example, the Trail Smelter Case, United States v Canada, 3 RIAA, p. 1907 (1941). 43 1972 Convention on International Liability for damage Caused by Space Objects, 29 March 1972, Article XIV. 44 1972 Convention on International Liability for damage Caused by Space Objects, 29 March 1972, Art XVI(1). 45 Ibid, Art XVIII. 46 Security Council Resolution 687 (1991), 3 April 1991. 47 Ibid. at paragraphs 16,18 and 19. the 1963 Convention be amended to establish an International Tribunal which would have compulsory jurisdiction to receive both civil and State claims arising under the 1963 Convention, and the general rules of international law, by any State on behalf of itself or, at that person's request, any person suffering damage within its territory or having its nationality, or by any other person who has suffered damage. The Tribunal's jurisdiction should be automatically brought into effect once damage passing a certain financial threshold has been reached. In the event that such a threshold has not been reached, jurisdiction could remain with national courts, provided that Article XI of the 1963 Convention is amended to allow victims to have a choice of bringing their claim either to the courts of the State in which the damage was suffered or the courts of the State in which the accident occurred. This would bring practise under an amended 1963 Convention into line with current practise in other, non-nuclear areas.