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Faculty Publications Faculty and Deans
1987
The Chernobyl Accident: A Case Study in

International Law Regulating State Responsibility
for Transboundary Nuclear Pollution
Linda A. Malone
William & Mary Law School
Repository Citation
Malone, Linda A., "The Chernobyl Accident: A Case Study in International Law Regulating State Responsibility for Transboundary
Nuclear Pollution" (1987). Faculty Publications. Paper 590.
http://scholarship.law.wm.edu/facpubs/590
Copyright c 1987 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository.
http://scholarship.law.wm.edu/facpubs
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The Chernobyl AccIdent: A Case
Study In InternatIonal Law*
RegulatIng State ResponsibilIty for
Transboundary Nuclear PollutIon**
Lmda A. Malone···
On Saturday April 26, 1986, at 1:23 a.m., the worst aCCIdent m

the history of nuclear energy I began at the Chernobyl Nuclear
Power Plant. 2 In the fourth and newest reactor at the site, a cnsls
of potentially catastrophIc proportIon started wIth a maSSIve loss
of coolant m the reactor's core. 3 The world did not know for
months the precise sequence of events. The Chernobyl reactor
was a graphite reactor generally conSidered to be an outmoded
type of reactor which has been largely abandoned outSide the So-
viet Umon. 4 The prevalent concern over use of graphite reactors
even pnor to Chernobyl was m large part due to a fire which oc
An abbreviated versIOn of this article was presented on September 30, 1986, at the
Annual Meetmg m Plymouth, England of the Agncultural Law ASSOCIation of Great Bntam
and the Co mite Europeen de DrOIt Rural.
•• Transboundary pollution may be defined as substance that ongmates m one
nation, moves through natural medium such as air or water, and Imposes hannful effects
m another nation. Comment, LIability for Tra71.matlonal Pollution Anslng from Offshore Oil
Development: A MethodolOgical Approach, 10 ECOLOGY L. Q 641 (1983). It has been
suggested that pollution should not be defined to mclude any change In the environment,
but to encompass "a threshold level of damage of interference whICh IS legally significant.
Spnnger, Towards Meanmgful Concept of Pollution m InternatIOnal Law, 26 INT'L & COMP L.
Q 531, 532 (1977) .
... ASSOCIate Professor of Law, Umverslty of Arkansas Law School, Fayetteville; B.A.
1975, Vassar College; J.D. 1978, Duke Law School; L.L.M. 1984, Umv. of IllinoIs College
of Law.
l. After vIsIting the Chernobyl plant, Hans Blix, Head of the International AtomIC En-
ergy Agency, stated, "It' clear that the radioactive consequences of this aCCIdent also are
more senous than any aCCIdent so far, and also that radioactive releases to the atmosphere
are far more senous. N.Y. Times, May 10, 1986, at AI, A4, col. 3. As of May 15, nme
people had died and 299 others had been hospitalized for radiation SICkness. Withm 19
mile radius, 84,000 people were evacuated, some not until week after the aCCident. A
Fearful Flight from Chernobyl, NEWSWEEK, May 19, 1986, at 36.
2. Barnathan & Strasser, Meltdown, NEWSWEEK, May 12, 1986, at 22 [heremafter
Meltdown].
3. /d. at 23.
4.Id.
203
HeinOnline -- 12 Colum. J. Envtl. L. 203 1987

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204 COLUMBIA JOURNAL OF ENVIRONMENTAL LAw [Vol. 12:203
curred m 1957 at Bntam s Windscale graphIte reactor 5 How-

ever the acknowledged advantage from use of a graphIte reactor
IS Its utility m the productIOn of weapons-grade plutomum for nu-
clear weapons. 6
The Chernobyl reactor had a rudimentary emergency backup
system. More sIgnificantly It had no contamment structure to
control radioactIve releases m the event of an accident. 7 The
emergmg sCIentific consensus as to what occurred IS thIS: on Fn-
day April 25, for reasons mitIally explamed by one SovIet officIal
as "human error" 8 there was a failure m the water cooling system
for the uramum fuel rods surrounded by graphIte blocks. 9 At a
press conference m Moscow the SOVIet Umon revealed that the
accIdent was the result of an expenment desIgned to determme
how long the reactor would contmue to produce electnCIty m the
event of an unexpected power cutoff. 10 TechmCIans deliberately
lowered the reactor s power level and, most Importantly shut off
the plant'S emergency cooling system. 11 The operators, however
contmued to let the reactor run WIth the emergency cooling sys-
tem turned off--a VIOlatIOn of SOVIet safety protocols. 12 As a re
sult, radioactIve xenon gas built up and destabilized the fuel
core.I 3 Compounding theIr error the techmcIans removed all
but a few of the control rods and disconnected the automatIc rod
control system. I4 From thIS pomt, the techmcIans proceeded to
go through a senes of steps to counterbalance the destabilized
reactor until they eventually blocked the emergency water and
pressure level warnmg SIgnals (that mIght have tnggered an auto-
matIC shutdown for safety reasons) so that they could proceed
WIth the expenment. I5 Without proper coolant, the fuel rods
were heated to a temperature of 3,500 degrees FahrenheIt, warp-
mg the Zircomum alloy around the fuel assemblies. 16 At approxI-
5. [d.
6. /d. For further diSCUSSIon of the graphite reactor, see Sullivan, Calamity Highlights Old
Reactor - DeSign Debate, N.Y. Times, May 1, 1986, at All, col. I.
7 Meltdown, supra note 2, at 23.
8. /d., N.Y Times, May 3, 1986, at A6, col. 3.
9. Meltdown, supra note 2, at 23.
10. Anatomy of Catastrophe, NEWSWEEK, Sept. 1, 1986, at 26 [heremafter Anatomy].
11. Id.
12. /d. at 27
13. /d.
14. /d.
15. [d.
16. N.Y. Times, May 1, 1986, at All, cols. 1-2.

Electronic copy available at: https://ssrn.com/abstract=2168420
1987] Chemobyl 205
mately 5,100 degrees the uramum-oxide fuel Itself begms to

melt. 17 Before thIS pomt, the reactor ordinarily would have
flooded Itself wIth water and shut down automatICally but thIS did
not occur 18
At 1:23 a.m. on April 26, nevertheless, the expenment was be-
gun.l 9 The operators shut off valves to prevent steam from
reachmg the turbme umt they wanted to test. 20 Before domg so,
they had bypassed the system that would have automatICally made
the reactor shut down. 21 Withm seconds there was a heat and
steam buildup m the core. 22 Withm forty seconds, the shift man-
ager tned to stop the reactor but It was too late. 23 The remam-
mg water m the system turned mto steam and reacted wIth the
graphIte, fuel and Zircomum to produce flammable hydrogen
methane and carbon monoxIde. 24 On Saturday April 26, at 1:23
a.m., there were two gas explOSIOns, blowmg the roof off the reac
tor building. 25 The resultant fire (wIth 100 foot hIgh flames due
to the lack of contamment26 from the then burnmg graphite
bncks), burned m the open aIr and released a cloud of smoke,
gas, and radiatIOn. 27 The fire would contmue to bum or smolder
for at least a week. 28 On Monday a worker at a nuclear power
plant m Sweden walked past a radiatIOn detector and set off ItS
alarm. 29 After checkmg on ItS own plant, Sweden discovered
momtonng statIOns throughout the country were registenng un-
usually hIgh levels of radiatIOn. 3o The radiatIon from Chernobyl
that mitIally swept over Norway Finland, and Sweden on April
17 The Chernobyl Syndrome, NEWSWEEK, May 12, 1986, at 23 [heremafter Syndrome].

There IS disagreement over whether meltdown m the sense of penetratIon of the layer of
concrete underneath the reactor occurred, but It was announced that the SovIet techm-
clans were trymg to entomb the building m concrete, lead, and boron, whICh would m-
clude laymg concrete underneath the reactor. A Fearful Flight, NEWSWEEK, May 19, 1986, at
37-38.
18. Syndrome, supra note 17 at 23.
19. Anatomv, supra note 10, at 27
20. [d.
21. !d.
22. [d. at 28.
23. [d.
25. Anatomy, supra note 10, at 28.
26. N.Y. Times, May 6, 1986, at AI, col. 3.
27 !d. at A6.
28. N.Y. Times, May 3, 1986, at AI, cols. 4 & 6.
30. [d.

28th was brought mto the heart of Europe by shiftIng wmds on

May 5th. 31 By May 6, small amounts of radiatIOn had traveled
across the Pacific Ocean and over much of the UnIted States. 32
Pravda reported that helicopters were dumpmg sand, clay lead
and boron mto the reactor to con tam radioactiVity 33 Diplomats
were withdrawn from Moscow 34 tOUrists returned home,35
angUished mothers m Poland fought over doses of IOdine for
theIr children, sales of milk from grass-fed cows were banned,36
and the European CommunIty banned Imports of fresh food
products from Eastern EuropeP As of the end ofJuly the SovIet
Umon had 200 people suffermg from acute radiatIOn sIckness and
28 people dead as a result of the aCCIdent. 38 Surrounding the
Chernobyl plant there was approXImately 385 square miles that
had been contammated and possibly a nearby water basm. 39
OutSide of the Soviet UnIon, European farmers sustamed millions
of dollars of damage from crops, livestock and dairy and egg
products that could not be sold as a result of potential or actual
contammatlOn. 40
The Chernobyl mCident brings mto focus the madequacy of do-
mestIC law to protect the global environment. PollutIOn and radi-
atIOn do not recognIze national boundaries. Any legal recourse
for the damage mflicted by the accident must come from mterna-
tlonallaw 41 As one notable mternatlOnallaw scholar has asked,
"Should these deCisIons of such consequence for the future of the
world and for humanIty as a whole be left wlthm the provmce of
natIOnal JUrisdictIOnal determmatlOn?"42
31. N.Y. Times, May 6, 1986, at A6, col. 1.

32. Id. at col. 3.
33. N.Y. Times, May 8, 1986, at AlD, col. I.
35. /d.
36. N.Y. Times, May 1, 1986, at All, col. 3.
37 N.Y. Times, May 8, 1986, at AlD, col. 4.
38. Chernobyl' Goal, NEWSWEEK, July 28, 1986, at 33.
39. /d.
40. Washmgton Post, June 8, 1986, at AI, col. 4.
41. On mternauonal environmental law generally, see TECLAFF & UrrON, INTERNATIONAL
ENVIRONNMENTAL LAw (1974) and A. SPRINGER, THE INTERNATIONAL LAw OF POLLUTION
(1983).
42. Falk, The Global EnvIronment and InternatIOnal Law: Challenge and Response, 23 KAN. L.
REV. 385, 403 (1975).

1987] Chemobyl 207
After the Chernobyl aCCident, the Soviet Umon was

threatened with a flurry of litlgatlOn. 43 But potential and actual
litigants soon discovered that although the Soviet Umon was cer
tamly responsible for damage from the the accident under mter
natIOnal law recovery was uncertam and enforcement Virtually
Impossible. A global commumty that had often Ignored mterna-
tlOnal law was suddenly calling for Its expansIOn and enforce-
ment. The commumty asked, why are there not a global safety
standards for nuclear reactors? Why are there not global early
warnmg systems for nuclear aCCidents? It asked why the Soviet
Umon not obligated to pay compensatIOn for the damage caused
by what the Soviet Umon Itself acknowledged was negligent oper
atlOn of a nuclear reactor;l
Conflicts over trans boundary pollution are not recent develop-
ments. The semmal case m mternatlonallaw governmg recovery
for trans boundary pollutIOn was decided m 1941 and was a har
bmger of the present controversy over aCid ram.44 InternatIOnal
law does provide rules of substantive liability for transboundary
pollutIOn but enforcement IS hampered by and dependent upon
state cooperatIOn. Utilizmg the Chernobyl aCCident as a case
study this article will focus on current mternatlOnal law gov-
ernmg trans boundary nuclear pollution, defiCienCies m the cur
43. On May IS, the European Parliament called for the Soviet Umon to pay compensa-
tion to Western European farmers. Xinhera General Overseas Service, May 16, 1986. On
July 12, 1986, Oregon declared It would bill the Soviet Umon $73,000.00 for the cost of
radiation tests on air, water and vegetables. Los Angeles Times, July 12, 1986, at AI6, col.
I. The Bntlsh Agnculture Mimster said that consideration was bemg gIven to seekmg
compensation, but there was heSitation because It might set precedent for claims agamst
Great Bntam by Scandinavian countnes for aCId ram damage. Umted Press International,
June 30, 1986, AM cycle. Swedish offiCIals studied the possibility of sumg Moscow for
damages but said It was unlikely they could do so. 1986 Reuters North European ServICe,
May 23, 1986 AM cycle. The West German government demanded that the Soviet Umon
pay damages to their farmers because It was reqUIred to pay Its farmers for damages under
Its own domestic law; ld. A BelgIan farmer declared he was gomg to sue the Soviet Umon
hlmselffor $1500.00. Reuters North European ServICe, May 13, 1986, AM cycle. A Dutch
msurance company hired the International Legal Institute m the Hague to determme
whether SUIt could be brought under Dutch, Soviet or mternatlonallaw, and farmers m
Italy and Austna urged their governments to bnng SUItS for agncultural damage. ASSOCI-
ated Press, May 9, 1986, AM cycle. An Italian farmer sued the Soviet Umon for $730.00 m
damages m an Italian court. Umted Press International, May 7 1986, PM cycle. Farmers
m Northern England asked for compensation for lambs that could not be slaughtered and
sold. Reuters North European Service, June 30, 1986, AM cycle.
44. For an analYSIS of recent mternatlonal efforts to curb aCid ram, see LaBastiIIe,lnterna-
tlonal Acui Test, SIERRA, May-June 1986, at 51.

rent system, and necessary reforms to the system m light of

"Chernobyl"
I. LIABILITY FOR TRANSBOUNDARY POLLUTION UNDER CUSTOM

AND GENERAL PRINCIPLES OF INTERNATIONAL LAw
Damages from Chernobyl, direct and mdirect, are difficult to
quantify m monetary terms. The European Economic Commu-
mty s Import ban on Polish food Imports cost Poland one million
dollars m May of 1986 alone. 45 Austnan farmers m June asked
for nearly 5.5 million dollars m compensation from their own
government for Its failure to exercise enforcement control over
vegetable sales. 46 In May Italian farmers claimed they were los-
mg 3.3 million dollars a day and the West German government
estimated Its damages might be m the billions. 47
Any analysts of the Soviet Umon s liability necessarily begms
With the landmark Trail Smelter case. In the Trail Smelter case,48
Canada and the Umted States, pursuant to a treaty specifically
drafted for resolution of the conflict, submitted a dispute con-
cermng emiSSIOns from a smelter near Trail, Canada for arbltra-
tlOn. 49 The Umted States contended that sulfur dioxide
emissions from the smelter were crossmg the border and damag-
mg forests Vital to the lumber mdustry m the state of Washmg-
ton 50 (sulfur dioxide IS now generally acknowledged as the
pollutant pnmarily responsible for the harmful effects of so-called
aCid ram).51 In a 1938 mtenm declSlon, the arbitratIOn tribunal
concluded that there was mJury to the Washmgton forests and
that the emiSSIOns from the Trail Smelter were the cause of that
mJury 52 The tribunal then turned to the Issue of damages for
that mJury 53 In assessmg damages, the tribunal refused to allow
damages for the wrong done the Umted States by Canada s vlola-
45.Reuters North European ServICe, May 13, 1986, AM cycle.

46.Reuters North European Service, June 28, 1986, AM cycle.
47 Associated Press, May 9, 1986.
48.Trail Smelter Case (U. S. v. Canada), Aribltral Tribunal, 3 R. Int'l Arb. Awards
1905,1938 (1949).
49. /d. at 1917
50. /d. at 1922.
51. See SWEDEN'S CASE STUDY FOR THE UNITED NATIONS CONFERENCE ON THE HUMAN
ENVIRONMENT, SUPPORTING STUDIES TO AIR POLLUTION ACROSS NATIONAL BOUNDARIES:
THE IMPAGT ON THE ENVIRONMENT OF SULFUR IN THE AIR AND PRECIPITATION (1972).
52. 3 R. Int'l Arb. Awards, at 1924.
53. /d. at 1932.

1987] Chemobyl 209
tIOn of Its sovereIgmty 54 The fact that pollutants from Canada

had crossed the Umted States border did not tngger liability for
damages wIthout a showmg of matenal damage. In additIOn to
those damages whIch were awarded for the mJunes to the forests
sustamed by the Umted States m the mtenm declSlon, the tribu-
nal ordered the Trail Smelter to refram from causmg further
damage until Issuance of a final deCIsIOn. 55 That final decIsIOn
was reported three years later and focused on whether the Cana-
dian Trail Smelter should be reqUIred to refram from causmg
damage m the future to the State of Washmgton. 56
The tribunal concluded that there was no need to determme
whether Umted States domestIc law or mternatIOnallaw would be
applied because the law followed m the Umted States III dealing
With quasI-sovereIgn nghts of states wIthm the Umted States m
regulatmg aIr pollutIOn, while more defimte than mternatIOnal
law was m conformIty WIth "the general rules of mternatIOnal
law "57 Unable to find any precedents from mternatIOnal tribu-
nals addressmg aIr or water pollutIOn, the tribunal turned to deCI-
SIOns of the Umted States Supreme Court that were premIsed on
the federal common law of nUIsance. 58 From these cases adjudi-
catmg mterstate conflicts over aIr and water pollutIOn, the tribu-
nal concluded that "under the pnncIples of mternatIOnal law as
well as of the law of the Umted States, no State has the nght to
use or permIt the use of ItS terrItory m such a manner as to cause
mJury by fumes m or to the tern tory of another or the propertIes
or persons therem, when the case IS of senous consequences and
the mJury IS established by clear and convmcmg eVIdence."59 Ac
cordingly the tribunal found that Canada was legally responsible
for the mJunous actIons of the smelter under mternatIOnal law
and the smelter was reqUIred to refram from causmg any further
damage to the Umted States. 60
Two fundamental prmcIples of mternatIOnallaw may be drawn
from the Trail Smelter declSlon. First, the Tribunal held that a
state IS not entItled to legal relief merely upon a showmg that
54. ld. at 1932-33.

55. Id. at 1934.
56. ld. at 1962.
57 /d. at 1964.
58.Id.
59. ld. at 1965.
60. /d. at 1948. 1966.

emissions or releases from one country have crossed mto the ter
ntory of another state. There must be a showmg of matenal dam-
age over and above a vIOlatIOn of soverelgmty 61 Secondly a state
may be held responsible for pollutlOn by pnvate partIes withm Its
tern tory if such pollutIon results m demonstrable mJury to an-
other state or to the property or persons therem.
Support for such a state obligatlOn may also be found outsIde
the pollutIon context m the InternatlOnal Court of JustIce deCi-
sion m the Coifu Channel case. 62 In that case, the Umted Kingdom
sued Albama for physICal damage and loss of life sus tamed by two
Bntish warships whIch ran mto moored contact mmes m the
StraIts of Corfu. 63 Although Albama was not found to have lam
the mmes, the Court determmed that the laymg of the mmefield
could not have been done wIthout Albama s knowledge. 64 Hold-
mg Albama responsible for damages, the Court stated:
The obligatIons Incumbent upon the Albaman authontIes con-
sIsted 10 notifY1Og, for the benefit of shIpp10g 10 general, the
eXIstence of a mmefield 10 Albaman tern tonal waters and 10
warn10g the approach1Og Bntish warshIps of the Immment dan-
ger to WhICh the mmefield exposed them. Such obligatIons are
based not on the Hague ConventIon of 1907 No. VIII, whIch IS
applicable 10 tIme of war but on certam general and well-recog-
mzed pnnCIples, namely' elim1Oat1Og consIderatIOns of human-
Ity even more exact10g 10 peace than 10 war; the pnnCIple of
the freedom mantime navIgatIon and every State s obligatIOn
not to allow knowmgly Its terntory to be used for acts contrary
to the nghts of other States. 65
More than thIrty years ago, both these cases recognIzed the rule
of mternatIonal law whIch says that permmmg extraterntonal
damage from mtrastate aCtIVIty whIch IS m and of Itselflawful (i.e.,
manufactunng, or operatmg nuclear power plants) may render
the state responsible for the damage mflicted. In additlOn, PnnCI-
pIe 21 of the Stockholm Declaration on the Human EnVIronment
m 1972 provIded that states have an obligatlOn to ensure that ac
tIvities occurrmg wlthm theIr JunsdictlOn or under theIr control
61. For an analYSIS emphaslzmg the limited recovery permItted by the Trail Smelter
case, see Rubm, Poilutlon by Analogy: The Trail Smelter ArbitratIOn, 50 OR. L. REV. 259 (1971).
62. Corfu Channel Case (U.K. v. Albama), 1949 I.CJ. 4.
63. [d.
64. [d. at 20-22.
65. [d. at 22-23.

1987] Chernobyl 211
do not cause harm m areas beyond their tern tory 66 Principle 22

reqUires states to cooperate m broadenmg liability for environ-
mental damage. 67 As a result, the International Law Commission
has smce been studymg proposals to extend national liability to
cover mJUrIes caused by acts lawful per se. 68
ThiS rejectIOn of an absolute view of soverelgnlty69-that there
are limitations on the lawful activities which may be conducted
wlthm a state s own territory-may be characterized as the doc
tone of "abuse of rights" or the doctrine of "good neighborli-
ness." The source of these doctrines appear to stem from
customary mtematlOnallaw general prinCiples oflaw (precepts of
law recognized by most civilized nations) or more fundamentally
from general doctrines of eqUity (ex aequo et bono}.70 Under mter
66. Stockholm DeclaratIon of the United NatIOns Conference on the Human EnVIronment, U.N.
Doc. A/CONF.48/14 (1972), repnnted In, II I.L.M. 1416 (1972).
67 Id. at 1420.
68. See, e.g., Second Report on InternatIonal Liability for hlJunous Consequences Anslng Out oj
Acts Not ProhibIted by InternatIonal Law, U.N. Doc. A/CN 4/346, Add. I and Add. 2 (1981).
See also CooperatIOn In the Field of the EnVIronment Concerning Natural Resources Shared by Two or
More States, G.A. Res. 3129, 28 U.N. GAOR Supp. (No. 30) at 48-49, U.N. Doc. A/9030
(1973); Draft PnnClples of Conduct In the Field of the EnVIronment for the Guulance of States In the
ConservatIon and HarmOniOUS UtilizatIon of Natural Resources Shared by Two or More States, Report
of the Intergovernmental Workmg Group of Experts on Natural Resources Shared by Two or More
States on the Work of its Fifth SesSIon, U.N. Doc. UNEP/IG.12/2, at 9 (1978), and DECD Council
RecommendatIon on PnnClples GovernIng TransfrontleT PollutIon, 14 I.L.M. 234 (1975) (requmng
poor notice and mfonnatlon about actions affectmg the shared resource); Smith, The
DECD Approach to the SolutIon of the TransfrontleT PollutIon Problem In ENVIRONMENTAL LAw,
INTERNATIONAL AND COMPARATIVE ASPECTS, A SYMPOSIUM (1976); see, e.g., Convention on
Long Range Transboundary Air Pollunon, Nov. 13, 1979, E/ECE/IOIO, T.I.A.S. No.
1054; Wets tone and Rosencranz, Transboundary Air PollutIon In Europe: A Survey of NatIonal
Responses, 9 COLUM.J. ENVTL. L. I (1983).
69. Traditionally states have had absolute sovereignty over use of natural resources
wlthm their terntones. Permanent Soverezgnty Over Natural Resources, G.A. Res. 3171, 28 U.N.
GAOR Supp. (No. 30) at 52, U.N. Doc. A/9030 (1973); Charter of EconomIc Rights and DutieS
of States, G.A. Res. 3281, 29 U.N. GAOR Supp. (No. 31), at 51; Stockholm DeclaratIon of the
Untted NatIOns Conference on the Human EnVIronment, supra note 66; see also Dec/amtlon on the
Establishment of New InternatIonal EconomIc Order G.A. Res. 3201(S-VI), 6th SpeCial SessIOn
U.N. GAOR Supp. (No. I) at 3, U.N. Doc. A/9559 (1954) and Programme of ActIOn on the
Establishment of New InternatIonal EconomIC Order, G.A. Res. 3202(S-VI), 6th SpeCial SessIOn
U.N. GAOR Supp. (No. I), U.N. Doc. A/559 (1954).
70. The accepted sources of international law are set forth In the Statute of the Interna-
tional Court of Justice, 1945, art. 38(1), 59 Stat. 1055, T.S. No. 933:
(I) The Court, whose function IS to deCide In accordance with international law such
disputes as are submitted to It, shall apply.
(a) mternatlonal conventions, whether general or particular, establishmg rules ex-
pressly recognized by the conceding states;
(b) mternatlonal custom, as eVidence of general practice accepted as law;
(c) the general pnnclples of law recognized by Civilized nations;

natIonal law the most controverSIal of these two doctrmes IS the

concept of good neIghborliness embodied m the latm maXIm, SlC
utere tuo ut abenum non laedus: use your own property so that It will
not InjUre others?l
By havmg recogmzed the doctrme of good neIghborliness, the
Trail Smelter case mevitably raIsed many more questIOns than It
answered. In analyzmg the InterrelatIOnshIp between tern tonal
sovereignity and transnatIOnal pollutIOn, acknowledgement of the
doctrme fails to adequately delineate the parameters of state obli-
gatIon. 72 When are the pollutmg actIOns of pnvate partIes the
responsibility of the State? How must causatIOn between actIon
and mJury be established? Can state responsibility be established
WIthout fault, I.e., based on stnct liability for ultrahazardous actIV-
ItIes? For what types of Injuries may damages be rcovered? Is
mJunctive relief, as well as damages, appropnate relief under m-
ternatIOnal law;>
II. FAULT STRICT LIABILlY AND THE PARAMETERS

OF GOOD NEIGHBORLINESS
The doctrme of good neIghborliness, as a general prmCIple of

law recogmzed by CIvilized natIons, draws from traditIOnal Anglo-
Amencan theones of tort law Tort law governmg land use, how-
ever may be predicated on fault-I.e., trespass, nUIsance, negli-
gence or mtentIOnal torts-or on stnct liability for ultrahazardous
aCtivIty 73 Can a State s responsibility for pollutIOn under mter
natIonal law be predicated only on fault, or may there be stnct
liability for pollutIOn damages created by ultrahzardous actIVItIes,
such as the operatIOn of a nuclear power plant?
(d) subject to the provISIons of Article 59, JudiCIal deCISIons and the teach10gs of
the most hIghly qualified publicIsts of the vanous nations, as subSIdiary means;
(2) ThIS proVISIOn shall not prejudice the power of the Court to decIde case ex aequo
et bono, if the parties agree thereto.
Although the Trail Smelter case was deCIded pursuant to treaty for resolution of that dis·
pute, the Tribunal based Its determmatlon of substantive liability on sources of Interna·
tlonal law aSIde from the treaty Itself. Article IV of the CompromIse govern1Og the case
authonzed the Tribunal to apply "the law and practlCe followed m dealing WIth cognate
questIOns 10 the Umted States of AmerIca as well as 1Oternatlonallaw and practice. 3 R.
Int'l Arb. Awards at 1908.
71. Elk1Od, Footnote to the Nuclear Tests Cases: Abuse of Right - A Blind Alley for EnVironmen-
talists, 9 VAND.J. TRANSNAT'L. L. 57 90-91 (1976).
72. Handl, Terntonal Sovereignty and the Problem of TransnatIOnal Pollution, 69 AM.]. INT'L L.
50 (1975).
73. See, e.g., PROSSER AND KEATON ON TORTS, §§ 13-15,28-34,86-91 (5th ed. 1984).

1987] Chernobyl 213
As early as 1966, C. Wilfred Jenks, cltmg treaties governmg aVI-

ation hazards and nuclear damage,74 argued that there was "a
growmg number of Significant exceptIOns to the alleged pnnClple
that liability m mternational law rests exclusIvely upon fault."
Jenks, however went on to questIOn whether such treaty obliga-
tIons embody a naSClent rule of customary mternatlOnal law Im-
posmg stnct liability for ultrahazardous activity or exceptions by
treaty to an established custom requmng fault for state liability 75
Focusmg on treaties governmg nuclear damage, Jenks set forth
the followmg pnnClples for state responsibility'
The pnnCIple that liability for nuclear damage IS "absolute" IS
generally accepted but the expressIOn IS somewhat misleading
m that It does not exclude the possibility of exceptIOns. The
pnnCIple that such liability by reason of ItS potential scale,
must rest upon a responsible operator who remams responsI-
ble while nuclear matenal IS m the hands of mtermediarIes IS
likeWise generally accepted.
•••
For both pollution and nuclear hazards, It IS the scale of the
possible consequences whICh converts the ultrahazardous use
of a facility mvolvmg the liability of the operator mto the ul-
trahazardous use of a tern tory mvolvmg the liability of the
State. Fundamentally the questIOn IS of public policy 76
One commentator also relymg on the general pnnclples of

law has attempted to distmgUlsh between the doctnnes of abuse
of nghts and good neighborliness. Pursuant to the doctrme of
good neighborliness, a property owner IS bound to accept a rea-
sonable amount of nOIse, smoke, and other pollution, but when
that mvaslOn or trespass exceeds that reasonably necessary then
the mJured neighbor may seek a legal rememdy to prevent the
mterference, or seek damages. 77 Fault m the form ofmaliClous or
74. Jenks, LIability for Ultra-Hazardous ActIVItieS In InternatIonal Law, 117 HAGUE RECUEIL
99, 106 (1966-1).
75.Id.
76. /d. at 127 144-45. It should also be noted that the Restatement of Foreign Rela-
tions Law has rejected absolute liability for environmental damage:
(i) A State IS obligated to take such measures as may be practicable under the Cir-
cumstances to ensure that actiVities withm its junsdict\on or control
(a) conform to generally accepted international rules and standards for the preven-
tion, reduction, and control of iIlJury to the environment of another state or of areas
beyond the limits of natural Junsdictlon;
(b) are conduted so as not to cause Significant injury to the environment of another
state or of areas beyond the limits of national Junsdictlon.
RESTATEMENT OF FOREIGN RELATIONS LAw § 601(1) (1983).
77 Elkind, supra note 71, at 91.

negligent conduct IS not necessary for liability but IS relevant to

whether or not the mvaSIOn was reasonable. 7s Abuse of nghts
occurs when aCtiVIty IS motIvated by culpable behavIor such as
maliCious mtent or negligence. When a property owner harms hIS
neIghbor by land uses whIch do not necessarily physIcally mvade
the neIghbor's property or cause an unreasonable mterference,
the only theory for relief IS abuse of nghts predicated on negli-
gence or maliCious mtent.79 Under thIS formulatIOn of the two
doctnnes, the conclusIOn reached IS that the doctnne of good
neIghborliness IS the theory for recovery m the Trail Smelter case
because no showmg of malicIOus mtent or negligence was
made. so
To summanze bnefly the extant theones of state liability for
transboundary pollutIOn drawmg on custom, general pnnCIples of
law and eqUIty It may be postulated that:
1. A State has an absolute duty to protect agamst transatlOnal
harm from ultrahazardous activity conducted wlthlll Its tern-
tory and IS stnctly liable for any resultant damage.
2. A State has a duty to use reasonable care to protect States
agamst extraterntonal harm from acts committed wlthm Its ter
Itory and failure to do so renders the State responsible for
damage lllcurred as a result of negligence or mtentlOnal harm.
3. A State IS liable if It permits trans boundary pollutIOn from
wlthlll ItS terntory to exceed that which Its neighbors may be
reasonably expected to endure.
Of these theones, stnct liability appears to be the most tenuous.
Recovery under the other two theones, however will depend
largely upon a balancmg of factors to determme the reasonable-
ness of the mvaSIOn or the reasonableness of precautions taken by
the state.
Traditionally under mternauonallaw attributmg state respon-
sibility for the conduct of pnvate partIes has focused on whether
there IS a nexus between the state and pnvate conduct suffiCient
to render the state ongtnally accountable to another state for repa-
rations. Such responsibility has traditIOnally been predicated on
fault. sl The Draft ArtIcles on State Responsibility by the Interna-
78.ld.
79. !d.
80.ld.
81. See generally Kelson, State Responsibility and the Abnonnally Dangerous ActiVity, 13 HARV.
INT'L L. J. 197 199 (1972). The author concludes that: "(I) Where the nsk of harm from
an activity IS substantial In either probability or magnitude of harm, and IS transnational In

1987] Chernobyl 215
tIonal Law CommIssIon, for example, largely reflect thIS tradi-

tional focus. 82 ThIS limIted focus fails to provIde crIterIa for
determInIng when a state IS under an InternatIOnal obligatIon to
prevent unreasonable rIsk of harm to other states through meas-
ures regulatIng health, safety and secunty Thus, "admIttIng even
the possibility that a state may act when It fails to regulate or con-
trol pnvate actIvIty IS to move m a substantIve directIOn. "83 In
short, there has been relatIvely little refinement of when a state IS
vlcanously liable for acts of persons wlthm ItS borders, and of what
the nature of that liability 1S. Yet under the doctnne of good
neIghborliness and stnct liability for ultrahazardous actIvItIes, the
state IS not only liable If It IS the operator of the plant but IS also
ongtnaliy liable for the harm if an unreasonable Interference or
harm from an ultrahazardous actIvIty IS demonstrated, regardless
of whether fault (in the sense of Intent, recklessness or negli-
gence) IS shown.
character, the State wlthm whose JunsdictIon the actIvity IS conducted IS under duty to
prevent such hann as may be caused by the enterpnse; (2) State IS under duty to notify
any other State whIch may be threatened by hann from the abnonnally dangerous actIvI-
tIes whICh the State permIts to be conducted wlthm ItS junsdictIon; and [less Importantly]
(3) State, failing to prevent hann, shall be ongmally responsible and stnctly liable for the
hann caused by abnonnally dangerous actIVItIes wlthm ItS junsdictIon to the reSIdents or
property of another State. !d. at 242-43.
82. Draft Articles on State Responsibility, 33 U.N. GAOR Supp. (No. 10) 187 U.N. Doc.
A/33/1O (1979), repnnted In, [1978] 2 V.B. INT'L. L. COMM'N 78, U.N. Doc.
A/CN.4/SER.A/1978/Add.1 (Part 2).
The relevant artIcle for state responsibility for mternatIonal pollutIon IS ArtICle 3:
There IS an mtentIonally wrongful act of State when:
(a) conduct conslstmg of an actIon or ommlSSlOn IS attributable to the State under
mternatIonal law; and
(b) that conduct constItutes breach of an mternatlOnal obligatIon of the State.
!d., art. 3. For hIStory of the artIcle m relatIon to trans boundary pollutIon, see Handl,
Terntonal Soveretgnty and the Problem of Transboundary PollutIOn, 69 AM. J. INT'L L. 50, 58-60
(1975).
The InternatIonal Law CommIssIon has been studymg the law of state responsibility and
has affinned the "prmClple that States, even when undertakmg acts that mternatIonal law
[does] not prohibIt [have] duty to conSIder the mterests of other States that mIght be
affected. Draft Articles on State Responsibility, supra, at 159.
Similarly, the Internauonal Law ASSOCIatIon m 1982 adopted Rules ofInternauonal Law
Applicable to Transfrontler Pollution. Artlcle 3(1) declares: "States are m thelr legltlmate
acuvIUes under an obligauon to prevent, abate and control transfronuer polluuon to such
an extent that no substanual mJunes caused are m the tern tory of another State. INT'L
LAw ASS'N, REPORT OF THE SIXTIETH CONNFERENCE HELD AT MONTREAL 160 (1983). Signifi-
cantly, the comments to the rules state that the rules merely restate mternauonallaw as It
eXIsts. [d. at 158.
83. Chnstenson, The Doctnne of AttributIOn In State Responsibility, m INT'L LAw OF STATE
RESONSIBILITY FOR INJURIES TO ALIENS: SELECTED CONTEMPORARY ISSUES (R. Lillich ed.).

An additional theory whIch may be utilized to reqUIre States to

abstam from pollutmg the global enVIronment IS the public trust
doctnne. The concept of protectIOn of the public trust, property
mterests that belong to the puhlic m general, IS fundamental m
the domestIc law of many countnes. It may therefore be consId-
ered a general pnnCIple of law under mternatlOnal law 84 The
public trust doctnne IS especIally relevant to protectIOn of com-
munal global resources not wIthm any partIcular state s Junsdic
tlOn-for example, the hIgh seas. The concept IS ImpliCItly
recogmzed m the Stockholm DeclaratlOn85 and other resolutIOns
of global envIronmental policy 86 whIch supports ItS recogmtlOn
as customary mternatlOnal law Along wIth the responsibility to
abstam from mJunng the global enVIronment, a state may have an
obligatIOn and standing as parens patnae to object to other states'
destructIOn of shared global resources. 87
84. See Sax, The Public Trust Doctnne In Natural Resource Law: EffectlveJudiCUlI InterventIOn,
68 MICH. L. REV. 475,484-85 (1970); Nanda, The Establishment of InternatIOnal Standards for
TransnatIOnal EnVIronmental InJUry, 60 IOWA L. REV. 1089, 1118 (1975); and Tiewul, Interna-
tIonal Law and Nuclear Test ExplosIons on the High Seas, 8 CORNELL INT'L LJ. 45, 68 (1974).
85. Stockholm DeclaratIOn of the Umted NatIOns Conference on the Human EnVIronment, supra
note 66. PnnClple I states that "[m]an bears a solemn responsibility to protect and
Improve the envIronment for present and future generations; PnnClple 2 proVIdes that
"[t]he natural resources of the earth mcluding the aIr, water, land, flora and fauna. must
be safeguarded for the benefit of present and future generations through careful plannIng
and management. /d. at 1418. See also Sohn, The Stockholm DeclaratIOn on the Human EnVI-
ronment, 145 HARV INT'L LJ. 423 (1973); The World Charter for Nature, G.A. Res. 37/7 37
V.N. GAOR Supp. (No. 51) at 17 V.N. Doc. A/37/51 (1982).
86. See, e.g., United NatIOns ConventIon on the Law of the Sea, V.N. Doc. A/CONF 62/122
(1982), repnnted In 21 I.L.M. 1261 (1982) and Agreement Governing the Actlvltll!s of States on the
Moon and other CelestIal Bodies, G.A. Res. 34/68, 34 V.N. GAOR SUpp. (No. 46) at 77 V.N.
Doc. A/34/46, art. 11 (declanng certam natural resources to be the common hentage of
mankmd). See also The Antarctic Treaty, Dec. I, 1959, 12 V.S.T 794, T.I.A.S. No. 4780;
Treaty on PnnClples Governmg Outer Space, Including the Moon and Other Celestial
Bodies, Jan. 27 1967 V.S.-Bntam-Russla, 18 V.S.T 2410, T.I.A.S. No. 6347 610
V.N.T.S. 205; ResolutIon on the QuestIon of the ReservatIOn ExclUSIvely for Peaceful Purposes of the
Sea-Bed and the Ocean Floor, and the Subsoil Thereof, UnderlYing the High Seas Beyond the LImIts of
NatlOnaljunsdictlOns, and the Use of Thl!lr Resources In the Interests of Mankind, G.A. Res. 2574 D
(XXIV), 24 U.N. GAOR Supp. (No. 30) II, U.N. Doc. A/7630 (1970), repnnted m, 9 I.L.M.
422 (1970); and DeclaratIon of PrInCIples Governing the LImIts of Natlonaljurndictlon, G.A. Res.
2749 (XXV), 25 U.N. GAOR Supp. (No. 28) 24, V.N. Doc. A/8028 (1971), repnnted m, 10
I.L.M. 220 (1971).
87 WeISS, The Planetary Trust: ConservatIOn and Intergeneratlonal EqUity, 11 ECOLOGY L.Q
495, 540-41 (1984). The author further contends that not only should the fidUCIary obli-
gation to protect "the planetary trust" be regarded as customary mternatlonal law, but
also as JUS cogens, preemptory norm whIch m theory State could enforce before the
International Court of Justice. !d. at 540-41. The author concedes, however, that "it IS

1987] Chemobyl 217
Assummg for the moment that the mJured state can make the
reqUisIte showmg of fault, unreasonable mterference or stnct lia-
bility that state, under mternatIonal law will face many of the
hurdles to relief that a tort plamtiff encounters under traditIOnal
Anglo-Amencan tort law The state will have to demonstrate ma-
tenal damage, although the full health and SOCIOeconomIC conse
quences of pollutIOn may not be demonstrable until years after
the OrigInal mflictIOn of the mJury It must also be demonstrated
that the damage sus tamed was caused by pollutIOn from sources
m the challenged state. ss Given the mteractIOn of pollutants and
the lengthy latency period for many diseases, It may be difficult or
Impossible to demonstrate, for example, that emISSIons from a
source A m State B caused cancer m resIdents of State C. S9
Even if the prereqUIsItes for liability are established, and mate
rial damage IS proven, full relief may not be readily available.
One suggestIOn IS that damages for trans boundary pollutIOn
under mternatIOnallaw mclude compensatIon for loss or damage
to an mdivIdual's property mcluding loss of an eXlstmg tangible
asset and temporary or permanent loss of ItS use, personal mJury
and damage consequent upon death. SurvIvors are thus enabled
"to obtam compensatIon for finanCIal loss they may suffer when
the VIctIm prOVIded for theIr support."90 On the other hand, eco-
nomIC loss IS ordinarily not recoverable, although variOUS declara-
tIons, resolutIons and conventions on pollutIOn mclude recovery
for such IOSS.91 PsychologIcal damage or emotIOnal distress must
also be conSIdered as a form of damages whIch mayor may not be
recoverable. 92 With regard to transboundary pollutIOn there IS a
trend toward wldemng the range of compensable damage while
limltmg the amount of liability 93
An entirely separate remedial Issue IS whether a state may con-
tmue to permIt conduct for whICh It IS liable m damages, or
whether prospectIve mJunctIve relief would be appropriate whICh
hard to establish that [such an obligation] already eXists as part of customary mternatlonal
law. [d. at 542.
88. See Handl, supra note 72, at 75, n.157
89. See, e.g., Kelson, supra note 81, at 238-242.
90. Pontavlce, CompensatIOn/or Transfrontler PollutIOn Damage, In LEGAL ASPECT OF TRANS-
FRONTIER POLLUTION 409 (Orgamzatlon of Economic Cooperation and Development
1977). See also RESTATEMENT OF FOREIGN RELATIONS LAw § 602 (1983).
91. [d.
92. /d.
93. /d. at 485.

reqUires the state to discontmue the harmful conduct. In a semI-

nal artIcle on the Umted States atomte weapon tests m 1954 m
the Pacific Provmg Grounds, McDougal and SchIel, wntmg m
1960, noted:
No mternational tribunal has yet uneqUIvocally faced the Issue
whether a state may contmue to carry on conduct for WhICh It IS
liable m damages, but sound policy decrees that internatIOnal
law should parallel mUniCIpal law In thIS respect. Although no
legal Issues were formally resolved between Japan and the
United States, the settlement In fact reached a deSIrable legal
result. Japan expliCItly refused to demand that the United
States discontmue ItS tests, and the United States paId two mil-
lion dollars In damages WIthout reference to questions of legal
liability Only thIrd partIes, unembarrassed by responsibilitIes
for the defense and secunty of the free world, seem unable to
precelVe the need for an appropnate discnmmatIOn between
remedy for damage and mutual tolerance for VItal Interests. 94
McDougal and Schlei's analYSIS, however IS troubling m several
respects. The traditIOnal "balancmg of the eqUitIes" for mJunc
tlve relief under mumclpal law has been demonstrated to under
value envIronmental concerns. In the gUise of protectmg the
"public's mterest" Umted States courts, for example, have often
shown an unwillingness to order cessatIOn of mcome producmg,
yet pollutmg facilittes. 95 When faced WIth unemployment and
loss of mcome that IS easily measured, balancmg the eqUitIes
tends to Ignore the Importance of clean aIr and water good
health, and aesthette values whteh are not readily reduced to
monetary value. In the gUise of "the defense and secunty of the
free world," McDougal and SchIel would SImilarly strike the bal-
ance m favor of military and strategtc supenonty at the expense
of the global enVIronment. TheIr approach also runs counter to a
growmg awareness that war IS the greatest threat to the enVIron-
ment and that natIOnal secunty encompasses envIronmental
secunty 96
94. McDougal and Schiel, The Hydrogcn Bomb Tests In PerspectIVe: Lawflll Measures for Secur-
Ity, 64 YALE L.J. 648, 694-95, (1955).
95. See, e.g., Boomer v. Atlantic Cement Co., 26 N.Y.2d 219,309 N'y.S.2d 312, 257
N.E.2d 870 (1970).
96. Treaties restnctIng nuclear weapons and other weapons threatenIng environmental
destruction Include: Treaty Banmng Nuclear Weapons Tests In the Atmosphere, In Outer
Space and Under Water, Aug. 5, 1963, 14 U.S.T 1313, T.I.A.S. No. 5433; Treaty on
PrInCiples GovernIng the Actlvltles of States In the Exploration and Use of Outer Space,
Including the Moon and Other Celestial Bodies, supra note 86; Treaty for the Prohibition
of Nuclear Weapons In Latin Amenca (Treaty of TlateIolco) , Feb. 14, 1967 634 U.N.T.S.

1987] Chernobyl 219
III. TRANS BOUNDARY POLLUTION OF THE GLOBAL COMMONS
Transboundary pollutIOn which contammates the ocean

presents Its own umque Issues of environmental protectIOn under
mternatlOnal law 97 The four Geneva Conventions of 1958 took
only a prelimmary step toward environmental protectIOn of the
oceans. 98 Part VII of the Law of the Sea ConventIOn more specifi-
cally governs protection and preservation of the manne environ-
ment, mcluding enforcement of the ConventIOn s reqmrement. 99
281, repnnted In, 61.L.M. 521 (1967); Treaty on the Non-proliferatIon of Nuclear Weapons,
July I, 1968,21 U.S.T. 483, T.I.A.S. No. 6839; Treaty on the Prohibition of the Implace-
ment of Nuclear Weapons and Other Weapons of Mass DestructIon on the Seabed and the
Ocean Floor and m the Subsoil Thereof, Feb. II, 1971,23 U.S.T. 701, T.I.A.S. No. 7337·
ConventIon on Prohibition of the Development ProductIon, and Stockpiling of Bacteno-
logtcal (Biological) and TOXIC Weapons and on Their DestructIon, Apr. 10, 1972, 26
U.S.T 583, T.I.A.S. No. 8062; Conventwn on the Prohibition of Military or Any Other Hostile Use
of Environmental ModificatIOn Techntques, G.A. Res. 31/72,31 U.N. GAOR Supp. (No. 39) at
36, U.N. Doc. A/3l/39 (1976); see also Weiss, supra note 87 at 556-57' Resolution Regarding
Weapons of Mass Destruction In Outer Space, G.A. Res. 1884 (XVIII), 18 U.N. GAOR Supp.
(No. 15) at 13, U.N. Doc. A/55I5 (1964), repnnted In, 2 I.L.M. 1192 (1963).
97 For analYSIS of state' obligatIon to prevent environmental damage to mterna-
tIonal watercourses, see Carvell, The North Dakota Garnson DiversIOn Project and InternatIOnal
Environmental Law, 60 N.D.L. REV. 603 (1984).
98. The ConventIon on the Contmental Shelf, April 29, 1958, art. 5(7), 1 V.S.T 471,
T.I.A.S. No. 5578, 499 U.N.T.S. 331, makes protectIon of the livmg resources of the high
seas from "harmful agents mandatory for all coastal states.
The ConventIOn on the Terntonal Sea and the Conuguous Zone, April 29, 1958, art. 24
(1),2 U.S.T 1606, T.I.A.S. No. 5639, 516 U.N.T.S. 205, prOVides:
In zone of the high seas contlguous to its terntonal sea, the coastal State may exer-
Cise the control necessary to:
(a) prevent the mfnngement of ItS samtary regulatIons wlthm ItS tern tory or
tern tonal sea;
(b) pumsh mfrmgement of the above regulatIons committed wlthm Its tern tory or
tern tonal sea.
The ConventIon on Fishmg and ConservatIon of the Llvmg Resources of the High Seas,
April 29, 1958, art. 7 I U.S.T. 138, T.I.A.S. No. 5969, 599 U.N.T.S. 285, allows any
coastal state to adopt unilateral measures of conservatIon appropnate to any stock of fish
or other manne resources m an area of the high seas adjacent to Its tern tonal sea, if such
measures are not arnved at through negotIatIons With other mterested states wlthm SIX
months.
The ConventIon on the High Seas, April 29, 1958, art. 24, 13 U.S.T 2312, T.I.A.S. No.
5200,450 U.N.T.S. 82, reqUires States to draw up regulatIons to prevent pollutIon of the
seas by the discharge of oil from shlps or plpelines or resultmg from the exp\01ta110n or
exploratIon of the seabed and ItS subsoil, takmg account of eXlstmg provIsions on the
subject, and Similarly art. 25 reqUires the takmg of measures to prevent pollutIon of the
seas from the dumpmg of radioactIve wastes, "takmg mto account any standards and regu-
lauons which may be formulated by the competent mternatIonal orgamzatIons of the
seas or air space above, resultmg from any radioactIve matenals or other harmful agents.
99. Untted NatIOns ConventIOn on the Law of the Sea, supra note 86. Art. 194 requires states
to take all necessary measures to prevent pollutIon of the manne enVironment, mcluding

In recent years there have been numerous multilateral conven-

tIons restnctmg pollutIOn of the seas,IOO such as those m PnncI-
pIes 6, 7 and 26 of the Stockholm DeclaratlOn. 101 It has been
poslted by more than one commentator that "what was once an
the prevention of releases of toXIC, hannful and noxIous substances from land-based
sources, from or through the atmosphere, and by dumpmg. Vnder art. 198, state whICh
becomes aware of cases m whIch the manne envIronment IS m Immment danger of bemg
damaged or has been damaged by polluuon shall Immediately notify other States It deems
likely to be affected by such damage, as well as the competent mternatlonal orgamzatlons,
global or regIOnal. Arts. 207 to 211 reqUIre states to establish laws to control pollution
from land-based sources, seabed actlvlUes, dumpmg, and from vessels. Art. 212 provIdes:
1. States shall, wlthm aIr space under theIr soverelgnlty or with regard to vessels or
aIr craft flymg theIr flag or of theIr reglstry, establish national laws and regulations to
prevent, reduce and control pollution of the manne envIronment from or through the
atmosphere, takmg mto account mternatlonally agreed rules, standards and recom-
mended practlCes and procedures, and the safety of all' navIgatIon.
2. States shall also take other measures as may be necessary to prevent, reduce and
control such pollution.
3. States, actmg m particular through competent mternatlonal orgamzatlons or dip-
lomatic conference shall endeavor to establish global and reglonal rules, standards
and recommended practices and procedures to prevent, reduce and control pollution
of the manne envIronment from or through the atmosphere.
100. 1954 International Convention for the Prevention of the Pollution of the Sea by
Oil, July, 1958, 3 V.S.T 2989, T.l.A.S. No. 4900, 327 V.N.T.S. 3; 1962 Amendments to
the 1954 Convention for the Prevention of Pollution by the Sea by Oil, May 18, 1967 2
V.S.T 1523, T.I.A.S. No. 6109, 600 V.N.T.S. 332; 1969 Amendments to the 1954 Con-
vention for the Prevention of the Pollution of the Sea by Oil, annexed to IMCO Assembly
Res. A. 175(vi), Oct. 21, 1969; International ConventIon Relatmg to Intervention on the
High Seas m Cases of Oil Pollution Casualties, Nov. 29, 1969, Brussels, repnnted In, 9
1.L.M. 25 (1970); lnternatlonal Conventlon on Civil LIability fOT Oil PoUutlon Damage,
Nov. 29, 1969, Brussels, repnnted In, 9 I.L.M. 45 (1970); Agreement Concernmg Pollution
of the North Sea Oil,June 9, 1969,704 V.N.T.S. 3, repnnted In, 9 I.L.M. 359 (1970); Con-
vention Relatmg to Civil LIability m the Field of Mantlme Carnage of Nuclear Matenal,
Dec. 17 1971, repnntedln, 1lI.L.M. 277 (1972); Convention on the Establishment of an
International Fund for Compensation for Oil Pollution Damage, Dec. 18, 1971, repnnted In,
11 I.L.M. 284 (1972); Convention for the Prevention of Manne Pollution by Dumpmg
from ShIps and AIrcraft, Feb. 15, 1972, repnnted In, 11 I.L.M. 262 (1972); ConventIOn on
the PreventIOn of Manne Pollution by Dumpmg of Wastes and Other Matter, Nov. 13,
1972,26 V.S.T 2403, T.l.A.S. No. 8165, repnnted In, Il I.L.M. 1294 (1972); International
Convention for the PreventIOn of Pollution from ShIPS, Nov. 2, 1972, repnnted In, 121.L.M.
1319 (1973), (Nordic) Convention on EnVIronmental Protection, Feb. 19, 1974, repnnted
In, 13 I.L.M. 591 (1974); Convention for the Prevention of Manne Pollution from Land
Based Sources, Feb. 16, 1976, repnnted In, 15 I.L.M. 290 (1976).
101. Stockholm DeclaratIOn oj the Umted NatIOns Conference on the Human EnVironment, supra
note 66. PrmCiple 6 states:
The discharge of toXIC substances or of other substances and the release of heat, m
such quantities or concentrations as to exceed the capacity of the envIronment to
render them harmless, must be halted m order to ensure that senous or Irreversible
damage IS not mflicted upon ecosystems. The Just struggle of the peoples of all coun-
tnes agamst pollution should be supported.
PnnClple 7 prOVIdes:

1987] Chemobyl 221
mchoate doctrme of "pollutIOn" m mternatlOnal law has smce

evolved mto a coherent and bmding prmciple of customary mter
nauonal law or at the very least, mto a general pnnCIple of law
recogmzed by clVilized natlons."I02 Histoncally however waters
withm the tern tonal Junsdiction of a natIOn, state or states were
presumed to be solely withm theIr control, and mternatlOnal wa-
ters were presumed to be outsIde the control of any natIOn
state. 103 The 1982 ConventIOn of the Law of the Sea has been
heralded as possibly enunCIatmg a general prmciple of state re-
sponsibility and liability for mJury to the manne environment. I04
Most mternatlOnal law scholars now take the positIOn that cus-
tomary mternatIOnallaw provIdes that all natIOns share responsI-
bility to protect the ocean areas beyond theIr terntones, whIch
mcludes an obligatIOn to control theIr CItizens to assure such
protectIOn. lOr,
The Trail Smelter case s emphaSIS on matenal damage to the ter
ntory of another state may be seen as a limItatIOn on recovery for
damage to shared global resources, but IS perhaps more appro-
pnately seen as a deCISIon SImply limIted to the Issue ·of damage
presented m the arbItratIOn as no Issue of mJury to the global
common resources was alleged. 106 In the Nuclear Test Cases,I07
States shall take all possible steps to prevent pollution of the seas by substances that
are liable to create hazards to human health, to harm livmg resources and marme life,
to damage amemtles or to mterfere WIth other legJumate uses of the sea.
PnnC\ple 26 focuses on the harmful effects of nuclear weapons:
Man and hIs envIronment must be spared the effects of nuclear weapons and all other
means of mass destruction. States must stnve to reach prompt agreement, m the rele-
vant mternauonal organs, on the elimmauon and complete destruction of such
weapons.
See also RESTATEMENT OF FOREIGN RELATIONS LAw §§ 611-612 (1983).
102. Tiewul, supra note 84, at 55; compare McDougal & Schiel, supra note 94 (argumg
that freedom of the hIgh seas mcludes the freedom to conduct nuclear weapons tests); and
Margolis, The Hydrogen Bomb Expmments and InternatIOnal Law, 64 YALE LJ. 629 (1955). Re
cently, many nations have Jomed together to develop standards to control pollutIOn m
mutually shared seas, such as the Baltic, the Meditteranean, and the North Seas. See
Keches, RegIOnal Seas: An Emerging Manne Policy Approach, m CENTER FOR OCEAN MANAGE-
MENT STUDIES, COMPARATIVE MARINE POLICY at 17-20 (1981).
103. Belsky, Management of Large Manne Ecosystems: Developing New Rule of Customary
InternatIOnal Law, 22 SAN DIEGO L. REV. 733, 734-742 (1985).
104. Hargrove, EnVironment and the Third Conference of Law of the Sea, m WHO PROTECTS
THE OCEAN? 191,208 (J. Hargrove ed. 1975). There has been conSiderable debate over
whether the rules m the 1982 Convention are customary law. Belsky, supra note 103, at
753, n.96.
105. /d. at 751-53.
106. Rubm, supra note 61, at 279-81.

the InternatIOnal Court of JustIce was directly presented with the

Issue of recovery for environmental damage to the high seas, but,
unfortunately dismissed the case as moot. When the French
Government mdicated It would conduct no further atmospherIc
tests of nuclear weapons m the Pacific Ocean, the Court held the
cases to be moot and demed the request for a declaratory Judg-
ment. IOB Yet prIor to dismissal, the Court had Issued an InterIm
Order of Protection under Article 41 of the Statute of the Interna-
tIOnal Court ofJustICe upon a finding of pnma jane JUrIsdiction. 109
In a similar controversy the Umted States settled ex gratza
(Without reference to liability) a claim from Japan for mJury to a
Japanese fishmg vessel and fishermen caught m the radioactive
fallout from an AmerIcan nuclear test m the Pacific Ocean. I to In
the Fukuryu Maru affair the Umted States paid Japan two million
dollars m compensatIOn for the damages sus tamed, mcluding m-
Junes to the tuna fish mdustry m Japan. I II It may certamly be
concluded that the settlement reflected opmw JUns that the settle-
ment was legally compelled. 112 The Items of damage, however
did not mclude fish rendered radioactIve m the ocean except to
the extent they were later caught by Japanese fishermen and,
thus, constItuted economIC mJury to Japanese mterests. 1l3
The specIal and potentIally catastrophIC problem of radioactIve
fallout ments separate analysIs, m that radioactIve fallout from
weapons tests may also vIolate the PartIal Test Ban Treaty 114
107 Nuclear Test Cases (Australia v. France) 1973 I.CJ. 99 and (New Zealand v.
France) 1973 I.C.]. 135.
108. Nuclear Test Cases (Australia v. France) 1974 I.CJ. 253 and (New Zealand v.
France) 1974 I.CJ. 457
109. 1973 I.CJ.99, 102; and 1973 I.CJ. 135, 138. See also ElkInd, French Nuclear Testmg
and ArtIcle 41 - Another Blow to the Authonty of the Court?, 8 VAND.]. TRANSNAT'L L. 39
(1974).
IIO. RubIn, supra note 61, at 279.
Ill. [d.
112. [d. In the Umted States, the authonty under whICh ex gratia settlements were made
to foreign claimants by the Executive was generally limited to mentonous" claims. 10
U.S.C. § 2734 (1964); 22 U.S.C. § 2669(b) (Supp. I, 1965-66); 28 U.S.C. §§ 2672, 2674
(1964); but see McDougal & Schiel, supra note 94.
113. RubIn, supra note 61, at 280.
114. Treaty Banmng Nuclear Weapon Tests In the Atmosphere, In Outer Space and
Under Water, supra note 96. A full analysIs of whether nuclear weapons tests, partiCipation
In the nuclear arms race, or use of nuclear weapons vIOlated InternatIOnal law IS beyond
the scope of this article. Bnefly, however, It should be mentioned that the Statute of the
InternatIOnal AtomiC Energy Agency, Oct. 26, 1956, art. 2 and 3, 8 U.S.T 1093, T.I.A.S.
No. 3873, 276 U.N.T.S. 3, prohibits the use of any speCial fiSSionable and other matenals,
servICes, eqUipment, facilities or Information made available by the Agency or at ItS re-

1987] Chernobyl 223
The PartIal Test Ban Treaty prohibIts states from nuclear explo-
SIons m the atmosphere; beyond theIr tern tones, mcluding outer
space; underwater mcluding terntonal waters on hIgh seas, or m
any other enVIronment if such explosIon causes radioactIve debns
to be present outsIde the tern tonal limIts of the State under
whose Junsdictlon or control such explosIOn IS conducted.l 15 If
the PartIal Test Ban Treaty IS eVIdence of customary mtematIOnal
law then any nuclear actIvIty resultmg m radioactIve fallout
outsIde the State s terntory may vIOlate customary mternatIOnal
law WIthout further reference to any other rules of mtematIOnal
law govemmg pollutIOn generally 116
quest or under Its supervISIon or control III such way as to further any military purpose.
The Treaty on the Non-Proliferauon of Nuclear Weapons, July I, 1968, 21 U.S.T 483,
T.I.A.S. No. 6839, 729 U.N.T.S. 161, forbIds "non-nuclear states" (states other than the
People' Republic of Chma, France, the Umted States, the SovIet UnIOn, and the Umted
Kingdom) from manufactunng or otherwIse acqumng nuclear weapons or nuclear explo-
sIve deVICes. It may be argued that the Parual Test Ban Treaty and the Non-Proliferation
Treaty have now become customary mternatlonallaw, and that they together WIth numer-
ous U.N. resolutions mdicate customary mternatlonal law opposed to the acqUlslllon,
development, detonation and/or deployment of nuclear weapons and other nuclear explo-
sIve deVIces. See, e.g., Agal1lst SovIet Plan to Explode 50 Megaton Bomb, G.A. Res. 1632 (XVI),
16 U.N. GAOR Supp. (No. 17) at 3, U.N. Doc. A/5100 (1961); On an Undertakl1lg by Coun-
tries Possessl1lg No Nuclear Weapons Not to Have Such Weapons 111 their Temtory, G.A. Res. 1664
(XVI), 16 U.N. GAOR Supp. (No. 17) at 5, U.N. Doc. N5100 (1961); On PreventIOn of the
Wider Disseml1latlOn of Nuclear Weapons, G.A. Res. 1665 (XVI), 16 U.N. GAOR Supp. (No. 17)
at 5, U.N. Doc. N5100 (1961); On the Urgent Needfor SuspensIOn of Nuclear Tests, G.A. Res.
1762 A & B (XVIII), 18 U.N. GAOR Supp. (No. 17) at 3, U.N. Doc. N5127 (1962); Regard-
I1Ig Weapons oj Mass DestructIon 111 Outer Space, G.A. Res. 1884 (XVlllL 18 U.N. GAOR Supp.
(No. 15) at 13, U.N. Doc. N5515 (1964); On the Urgent Needfor SuspensIon of Nuclear and
Thermo-Nuclear, G.A. Res. 1910 (XVIII), 18 U.N. GAOR Supp. (No. 15) at 14, U.N. Doc.
N5515 (1963); see also Falk, The Shlmoda Case: A Legal Appraisal of the AtomiC Attacks Upon
Hiroshima and Nagasaki, 59 AM.]. INT'L L. 759 (1965); U.N. CHARTER art. 2(4),11(1) and
26(1). However, It may be argued with equal force that the treaties have not been Widely
enough accepted to become customary mternatlOnallaw and that U.N. resolutions by theIr
very nature are not bmding m any legal sense. On the legal effect of General Assembly
resolutions, see R. FALK, THE STATUS OF THE LAw IN INT'L SOCIETY 176 (1970);Johnson, The
Effect of Resolullons of the General Assembly of the United NatIOns, 32 BRIT. Y.B. INT'L L. 97
(1956); and Sloan, The Binding Force of RecommendatIOn of the General Assembly of the Umted
NatIOns, 25 BRIT. Y.B. INT'L L. 1-33 (1948).
115. Treaty Bannmg Nuclear Weapons Tests m the Atmosphere, m Outer Space and
Under Water, supra note 96.
116. It has even been argued by one commentator that local\on of nuclear power
plant near national boundanes VIOlates mternatlOnallaw. The author comes to the conclu-
sIon that:
Assummg that no speCIal authonzmg CIrcumstances prevail, conduct of an activity m
frontier areas IS mcompatible WIth mternatlonal law if: (a) the activity concerned m-
volves major nsk of transnational harm; (b) thIS nsk IS funCtion, at least to SIgnifi-
cant degree, of the location m whIch the activity takes place; and (c) the activity m that
frontier location amounts to an meffiClent use between the nsk creatmg and nsk ex-

IV JUDICIAL ENFORCEMENT OF CUSTOMARY INTERNATIONAL LAw

AND GENERAL PRINCIPLES OF LAw GOVERNING
TRANS BOUNDARY POLLUTION
As IS so often the case, Judicial enforceability IS an obstacle to

enforcement of mternatlOnal responsibility for extraterntonal
pollution. The mdivldual pnvate plamtiff will be essentially re-
stncted to recovery m the domestic courts of state, wherem the
environmental mJury occurred or the mJunes took place. 1l7
Whether mternatlOnal rules of liability can be utilized will depend
pnmarily upon whether and the extent to which mternatlOnallaw
IS mcorporated mto the state s domestic law 118 For example, m
the Umted States courts non-reSident aliens may sue under 28
U.S.C. § 1350 m the federal courts for extraterntonally effective
torts committed wlthm the Umted States} 19 Foreign natIOnals
may bnng SUlt m federal court based on state tort law under di-
versity Junsdictlon. 120 In the Paquette Habana case, the Umted
States Supreme Court has stated that " where there IS no
treaty and no controlling executive or legtslatlve act or JudiCIal
decIsion, resort must be had to customs and usages of civilized
natIOns. "121 Thus, to a limited extent, mternatlOnallaw may
be utilized by the Umted States courtS.122 Other procedural hur
dIes, such as sovereign Immumty and standing, must, however be
overcome. Under the Umted States Foreign Sovereign Immum-
ties Act of 1976, for example, there IS JUrIsdiction m the Umted
States federal courts over a foreign state for among other thmgs,
direct mJury m the Umted States by a sovereign as a result of
posed states of the mternatlonally shared natural resources concerned, provIded the
nsk IS not already of such an obvIOUS nature or magnItude as to render the activIty
mcompatible per se WIth fundamental pnnclples of the sovereIgn equality and mde-
pendence of states.
Handl, An InternatIOnal Legal PerspectIVe on the Conduct of Abnormally Dangerous ActIVities In Fron-
lIer Areas: The Case of Nuclear Power Plant Siting, 7 ECOLOGY L.Q 1,47 (1978).
117 Comment, Compensating Pnvate PartIes for TransnatIOnal POliUtlOTi InJUry, 58 ST. JOHN'S
L. REV. 528, 531 (1984).
118. For companson of domestic polluuon laws, see P DOWNING AND K. HUNF, INT'L
COMPARISONS IN IMPLEMENTING POLLUTION LAws (1983).
119. Compensating Pnvate PartIeS for TransnatIOnal PollutIOn, supra note 117 at 533.
120. /d.
121. The Paquette Habana, 175 U.S. 677 (1900); see al50 Lillich, Domestic InstitutIOns m 4
THE FUTURE OF THE INT'L LEGAL ORDER 384, 387-392 (1972).
122. See The Paquette Habana, 175 U.S. 677 (1900); Filaruga v. Pena-Irala, 630 F.2d
876 (2d Cir. 1980); see also Fischer, Aod Rain: DeplOYing Pnvate Damage ActIOns Against Trans-
boundary Polluters, 19 TRIAL 57 (1983).

1987] Chernobyl 225
commerCial activities. 123 Under the Umted States Supreme Court

decISIon m Sierra Club v. Morton,124 the plamtiff will have to
demonstrate that the plamtiff uses the mJured enVironment and
has suffered tllJury m that use}25 A promISIng approach toward
overcommg standing obstacles relevant to trans boundary pollu-
tion IS reflected m the Nordic Convention on the ProtectIOn of
the Environment, grantmg citizens of the member countnes re-
CIprocal access to each other s courts and admmlstratlve agenCIes
for "any person affected by a nUisance caused by environmen-
tally harmful actlvltles."126 Even if the plamtiff succeeds m a do-
mestIC court, enforcement extranatlOnally IS largely dependent
upon the cooperation of the defendant state, and mJunctIve relief
IS highly unlikely 127
For state agamst state claims, the obVIOUS forum for enforce
ment IS the IntenatlOnal Court of JustICe, yet the hurdles to en-
forcement are at least as Imposmg as those whICh may be
encountered III domestic courts}28 The Court's JunsdictlOn ex
tends to "all cases which the parties refer to It and all matters
speCIally provided for m the Charter of the Umted Nations or III
treaties and conventions m force."129 A SUIt, however may only
be brought by a state agamst a state}30 No state IS subject to the
Court's Junsdictlon unless It has consented to be}31 Any state
whICh has been sued may not only assert ItS own reservatIOns to
consent to be sued (asummg It has consented m the first place),
123. 28 U.S.C. § 1605(a)(2) (1982); see generally 28 U.S.C. §§ 1330, 1391, 1441, 1602-
1611 (1982). SectlOn 1605 qualifies the doctnne of absolute sovereIgn Immumty by al-
lOWIng federal courts to have JunsdictIon over claIms agaInst sovereIgn based on waIver
ofimmumty, commerCIal aCtIVIty carned on wIthm the Umted States, or outsIde the Umted
States if the aCtIVIty causes direct effect wIthIn the Umted States, expropnatIon, nghts m
gifts or bequests of immovable property, non-commercIal torts, and certaIn mantIme liens.
Id. § 1605.
124. 405 U.S. 727 (1972).
125. WeISS, supra note 87 at 567
126. ConventIon on the ProtectlOn of the EnvIronment, Feb. 19, 1971, reprtnted In, 13
I.L.M. 591 (1974).
127 Compensating Pnvate PartIes for TransnatIonal PollutIon, supra note 117 at 531-32;
Fischer, supra note 122, at 58.
128. Of course, the state may pursue diplomatIc and InternatIonal channels to obtaIn
compensatory damages, or attempt arbItration or negotIatIon. Compensating Pnvate Parties
for TransnatIonal InJury, supra note II 7 at 531.
129. Statute of the InternatIonal Court ofJustice, supra note 52, art. 36(1); see also WeISS,
supra note 87 at 570.
130. Statute of the InternatIonal Court ofJustIce, supra note 70, art. 34; see also Compen-
satIng Pnvate PartIes for TransnatIOnal PollutIon, supra note 117 at 538.
131. Statute of InternatIonal Court of JustIce, supra note 70, art. 36(2).

but also those of the plamtiff state. 132 Such reservations fre
quently exempt from the JunsdictlOn of the Court Issues of "do-
mestic" Junsdictlon of "national secunty"133 Even If these
hurdles are surmountable, there must be complete exhaustlon of
any domestic remedies. 134 Even assummg that all these obstacles
may be overcome and the plamtiff state wms, opmlOns of the
Court may only be enforced by the Umted Nations Secunty
Council, m which the major nuclear powers have the veto
power 135
V LIABILITY FOR TRANS BOUNDARY POLLUTION PURSUANT

TO TREATY LAw
Enforcement of mternatlOnal law by treaty IS more effective
than enforcement of custom and general prmClples of law 136 Yet
on the whole, enforcement prOVISIOns m extant treaties are too
vague to provide for meanmgful enforcement, or not enough nu-
clear powers are parties to the treaties to provide any meanmgful
protectlon. 137 Although a full survey of all such treaty provIsions
governmg transboundary pollution IS beyond the scope of this ar
tlcle,138 there are only a few relevant to transboundary pollution
from nuclear aCCidents.
132. "The states parties to the present Statute may at any time declare that they recog-
nize as compulsory IPSO facto and WIthout speCIal agreement In relation to any other state ac-
cepting the same obligation, the Junsdictton of the Court. [d.
133. See generally WESTON, FALK & D'AMATO, INT'L LAw AND WORLD ORDER 415-426
(1980).
134. Compensating Pnvate Parties for Transnational Pollution, supra note 117 at 557
135. U.N. CHARTER art. 94.
136. See, e.g., Compensating PrIvate Plaintiffs for Transnational Pollution, supra note 117 at
557
137 Id. at 540-41.
138. The 1972 Stockholm Conference led to the creatIon of an mstItutlon, the United
Nations EnVIronmental Program (UNEP) as catalyst and coordinator of international en-
vIronmental efforts, mcluding mternatlonal efforts to protect the manne enVIronment.
Belsky, supra note 103, at 741 n.33. Also followmg the conference, several national gov-
ernments and mternatlonal organizations responded to the dictate of PnnClple 22 of the
Stockholm Declaration calling for states to cooperate to develop mternatlonal law for
transboundary envlronmental damage. One such response was from the EnvlHmment
CommIttee of the Organization for EconomIC Cooperation and Development (OECD).
The OECD IS regIonal economic organization established m Europe m 1961. For VIew
of few regIonal environmental programs, see generally Comment, Equal Rights of Access In
Matters of Transboundary Pollution: Its Prospects In Industnal and Develaplng Countnes, 14 CAL. W
INT'L LJ. 192 (1984); see also Bentil, ImplementatIon of Common Market EnVIronment ProtectIon
Laws, 128 SOLIe. J. 393 (1984); Dickstem, NatIonal EnVIronmental Hazards and InternatIOnal
Law, 23 INT'L & COMP L.Q 426, 443-444 (1974) (describmg Euratom control over radia-

1987] Chemobyl 227
The Vienna ConventiOn on Civil LIability for Nuclear Damage

grants JunsdictiOn over cases for nuclear damage to the courts of
the state m whose tern tory the damage occurred. I39 ArtIcle II of
the Vienna ConventIon on Civil LIability for Nuclear Damage 140
makes the "operator" (the person so desIgnated or recogmzed by
the InstallatIon State) of a nuclear mstallatlon liable for any "nu-
clear damge" "Nuclear damage" IS defined m ArtIcle I(l)(k) to
mclude:
(i) loss oflife, any personal mJury or any loss of, or damage to,
property whICh anses out of or results from the radioactive
propertIes or a combmatIOns of radioactIve propertIes WIth
tOXIC, explosIve or other hazardous propertIes of nuclear fuel
or radioactive products or wastes m, or of nuclear matenal
commg from, ongmatmg m, or sent to, a nuclear mstallatlon;
(ii) any other loss or damage so ansmg or resultmg if and to
the extent that the law of the competent court so provIdes; and
(iii) if the law of the InstallatIOn State so provIdes, loss of life,
any personal mJury or any loss of, or damage to, property
whICh anses out of or results from other 10nIzmg radiatIon
emitted by any other source of radiatIon mSlde a nuclear
mstallatIOn." 141
A responsible operator may be an mdivIdual, a partnershIp, any
pnvate or public body any mternatiOnal orgamzatiOn havmg a
legal personality under the law of the InstallatiOn State. 142 LIabil-
Ity for nuclear damage IS absolute except that: the operator may
be exempt from liability for damage directly due to an act of
tlon hazards); and the Convention on Long-Range Transboundary Air pollution, Nov. 13,
1979, E/ECE/IOIO, T.I.A.S. No. 10541. For further elaboration on Umted Nations efforts
to protect the environment and those of other mternatlonal orgamzatlons, see Smith, The
Umted Nations and the Environment: Sometl7T1es Great Notlon~, 19 TEXAS INT'L LJ. 335 (1984);
DeveWpments, The Umted Nations EnVironment Programme After Decade: The NairobI Session of
Special Character May 1981, 12 DENVERJ. INT'L L. & POLICY 269 (1982-83); OFfiCE OF RE-
SEARCH & DEVELOPMENT, EPA, A SURVEY OF INT'L INTERGOVERNMENTAL ORGANIZATIONS:
THE STRATEGIES THEY USE TO ABATE POLLUTION, (1978); STANLEY, ENVIRONMENTAL MAN-
AGEMENT BY THE UNITED NATIONS 1972).
139. Vienna Convention on Civil Liability for Nuclear Damage, May 21, 1963, repnnted
In, International AtomiC Energy Agency, International Convention on Civil Liability for
Nuclear Damage (1974) (Legal Senes No.4). See also Telwul, supra note 84, at 61, n.57
The Vienna Conventlon was unammously adopted by the IAEA m 1963. The Sovlet
Union IS member of the IAEA but IS not party to the Convention. The analYSIS of
Soviet responsibility herem, therefore, IS apart from whatever responsibility It may be held
to pursuant to this treaty obligation. DespIte Tiewul' assertion, art. XI(1) gIVes Junsdic
tlon only to where the "incident" occurred.
140. Vienna Convention on Civil Liability for Nuclear Damage, supra note 139, art. II.
141. 1d. art. I(I)(K).
142. 1d. art. I(1)(a), (c).

armed conflict, hostilitIes, civil war or msurrectIOn; 143 that the

damage resulted wholly or partially from the gross negligence or
mtentIOnal wrong of the victim himself, or that, unless the state
otherwise provides, the damage resulted from grave natural disas-
ter of an exceptIOnal character 144 Where the nuclear accident oc
curred outside the terntory of any state, or where ItS location
cannot accurately be determmed, the courts of the mstallatIOn
state have JunsdictIOn. 145 The Vienna ConventIOn excludes any
Junsdictlonal ImmumtIes ansmg under national or mternatIOnal
law once a court has obtamed JunsdictIOn under the Conven-
tlon. 146 The extent of recoverable damage may not be limited to
less than five million Umted States dollars.147
Under Article VI(l) of the Vienna Convention, claims for com-
pensation With respect to nuclear damage are barred, unless
presented wlthm ten years from the date of the nuclear acCl-
dent. 148 ThiS limitation does not apply If under the law of the
InstallatIOn State, the liability of the operator IS covered by msur
ance or other financial secunty or by state funds, for a penod
longer than ten years. 149 Notwithstanding these prOVIsions, the
forum state may erect a limitation penod of between three and
ten years from the date on which the mJured party had or should
have had knowledge both of the damage, and of the Identity of
the operator liable therefor 150 Unless the law of the competent
state otherwise provides, a person who has brought a timely ac
tIOn for compensation may at any time before final Judgment
amend hiS claim to take mto account any aggravatIOn of the mJu-
nes. 15I The InstallatIOn State shall msure the payment of claims
agamst the operator providing the necessary funds to the extent
that the yield of msurance or other financial secunty IS madequate
to satisfy such clalms. 152 An optIOnal protocol to the Convention
143. /d. art. IV(3)(a).

144. [d. art. IV
145. [d. art. XI(2).
146. [d. art. XIV
147 [d. art. V
148. [d. art. VI(l).
149. [d.
150. /d. art. VI(3).
151. [d. art. VI(4). In addition to the Vienna convention, there are also several bilateral
and regIOnal arrangements for the payment of compensation to VlctllIlS of nuclear actIvity
or pollution resultmg therefrom on the hIgh seas, the scope of liability rangmg from par-
tial to absolute. See Tiewul, supra note 84, at 61 n. 59.
152. Vienna Convention, supra note 139, art. VII(l).

1987] Chemobyl 229
provIdes that disputes concermng the mterpretatlon or applica-

tIon of the ConventIon are to be decIded by the InternatIOnal
Court of JustIce.I 53 Similar provlSlons for cIvil damages are con-
tamed m the Pans ConventIon of ThIrd Party LIability m the Field
of Nuclear Energy 154 and the Brussels ConventIOn Supplemen-
tary to the Pans ConventIOn,155 whICh were sponsored by the Or
gamzatIOn for EconomIC CooperatIOn and Development and on
whIch the Vienna ConventIon was modeled.
The Vienna ConventIon entered mto force m 1977 but there
are only approXImately ten states that are partIes to the Conven-
tIon, and none of these states IS a major nuclear power 156 The
Pans ConventIOn entered mto force m 1968 and the Brussels
Supplementary ConventIOn went mto force m 1974. 157 The par
tIes to these treatIes do mclude most of Europe, but neIther the
SOVIet Umon nOT the Umted States IS a paTty 158
Pursuant to the Statute of the InternatIOnal AtomIC Energy
Agency "[a]ny questIon or dispute concernmg the mterpretatlon
or applicatIon [of the Statute] whICh IS not settled by negotIatIon
shall be referred to the InternatIOnal Court ofJustICe m conform-
Ity WIth the Statute of the Court, unless the partIes concerned
agree on another mode of settlement." 159 The General Confer
ence and the Board of Governors of IAEA, WIth authonzatlon
from the General Assembly of the Umted NatIons, may request an
advIsory opmIOn on any legal questIOn ansmg wIthm the scope of
the IAEA s actIvItIes. 160 However the Agency has no authonty to
Issue mandatory safety standards and, therefore, thIS proVISIon
153. Vienna ConventIOn, supra note 139, art. I.

154. Pans ConventIon on ThIrd Party LIability In the Field of Nuclear Energy, July 29,
1960, repnnted m, 55 AM. J. INT'L L. 1082 (1961).
155. ConventIon Supplementary to the Pans ConventIon of July 29, 1960 on ThIrd
Party LIability In the Field of Nuclear Energy, supra note 154. See also The ConventIon on
the LIability of OperatIons of Nuclear ShIps, Jan. 31, 1963, repnnted m, 2 I.L.M. 685 (1963);
see also ConventIon on Civil LIability In the Field of MantIme Carnage of Nuclear Matenal,
Dec. 17 1971, repnnted m, II I.L.M. 277 (1972) (adds to the Pans and Vienna
ConventIons).
156. ORGANIZATION FOR ECONOMIC COOPERATION AND DEVELOPMENT NUCLEAR ENERGY
AGENCY & INTERNATIONAL ATOMIC ENERGY AGENCY, NUCLEAR THIRD PARTY LIABILITY AND
INSURANCE STATUS AND PROSPECTS 47 (1985).
157 [d.
158. /d.
159. Statute of InternatIonal AtomIc Energy Agency, supra note 114, art. XVIIA.
160. [d. art. XVIIB. Although the IAEA IS authonzed to adopt safety standards, the
standards are techmcally WIthout bInding effect. See generally, DicksteIn, supra note 138, at
426, 436-38.

would do little or nothmg to Impose state liability for trans-

boundary damage from unsafe operatIOn of a nuclear reactor
IAEA s safety standards are meant to apply only to the agency s
own operatIOns and operatIOns carned out at Its request or under
Its control or supervlSlon. 161 Safety standards are merely recom-
mended by the IAEA and are not, therefore, bmding on nuclear
actIvItIes not provIded through the NRC. The IAEA, however
has negotIated bilateral agreements for safety standards wIth
twenty-one countnes. 162
For pollutIOn of the sea, the 1982 Law of the Sea ConventIon
Imposes on the mdividual state the responsibility to enforce theIr
own laws and to adopt the necessary legIslatIve, admmistratIve,
and other measures to Implement mternatIOnal rules and stan-
dards established through competent mternatIOnal orgamzatIOns
or diplomatlC conferences.l6~ The provlSlons of the 1982 Con-
ventIOn, unlike the provlSlons of the four 1958 ConventIOns dis-
cussed above, m all likelihood establish new pnnClples of
mternatIOnallaw not codificatIon of pre-exIstmg custom. There
fore, they would be bmding only on the partIes to the Conven-
tIOn. Perhaps the most forceful enforcement provlSlon m the
1982 ConventIOn IS the remedy drawn from customary mterna-
tIOnal law of mterventIOn for mantime casualtIes to aVOId pollu-
tIOn under ArtIcle 221 That ArtIcle preserves" the nght of
States, pursuant to mternatIOnallaw both customary and conven-
tIOnal, to take and enforce measures beyond the tern tonal sea
proportIOnate to the actual or threatened damage to protect theIr
coastline or related mterests, mcluding fishmg, from pollutIon or
threat of pollutIOn followmg upon a mantlme casualty or acts re-
latmg to such a casualty whIch may reasonably be expected to
result In major harmful consequences."I64
161. Statute ofInternatIonal AtomiC Energy Agency, supra note 114, art. IIA.6. Compare
Treaty Establishmg the European AtomiC Energy Community (Euratom) art. 30-39, 77-85,
Mar. 25, 1957 298 V.N.T.S. 167 (mandatory safety standards for all members).
162. InternatIonal Nuclear Safety Concerns: Heanngs Before the Subcomm. on Energy, Nuclear
ProliferatIOn, and Governmental Processes of the Senate Comm. on Governmental AffalTS, 99th Cong.,
2d. Sess., 5 (1986) (statement of Allan I. Mendelowltz, Assoc. Dir., NatIonal Secunty and
Int'l AffaIrS Div., GAO)
163. See generally Umted NatIOns ConventIOn on the Law of the Sea, supra note 86, art. 213-
222.
164. Id., art. 221(1).

1987] Chernobyl 231
VI. NUCLEAR ACCIDENTS AND PREVENTION OF DAMAGE UNDER

INTERNATIONAL LAw
It would be remiss to evaluate the Chernobyl aCCldent Without

recogmtlon of the human anxIety suffenng, and loss of life m the
SovIet Umon, and what may be the loss to the SovIet people of an
area of nch, much needed agncultural land. RIChard Falk has
suggested that human nghts must mclude "the nghts of mdivldu-
als and groups (including those of unborn generatIons) to be rea-
sonably secure about theIr prospects of mlmmal physIcal well-
bemg and survIval (and) the duty of governments and peoples to
uphold thIs nght by workmg to achIeve sus tamable forms of na-
tIOnal and ecologIcal secunty "165 Many of the mternatIonal dec
laratIOns that aspire to the most stnngent protectIon of the
environment portray the nght to a safe and clean envIronment as
a fundamental human nght. 166 In the context of the Chernobyl
tragedy envIronmental destructIOn may be seen as a depnvatIOn
of nghts tantamount to a depnvatIOn of CIvil, economIc and socIal
human nghts.
Though difficult to make an accurate assessment of the damage
to SovIet agnculturalland around Chernobyl WIthout accurate ra-
diatIOn measurements, some general conclusIOns can be made.
SCIentists have testified that radioactIvIty was likely to have dam-
aged soil, water livestock and crops wlthm a 2000-square-mile
regIOn of the Ukrame that surrounds the cnppled plant. 167 The
Ukrame produces 20% of the SOVIet gram crop, and IS the Soviet
165. R. FALK, HUMAN RIGHTS AND STATE SOVEREIGNTY 146-47 (1981); see also W GOR-
MLEY, HUMAN RIGHTS AND ENVIRONMENT: THE NEED FOR INT' COOPERATION (1976); Cas-
sm, Les DrOits de ['homme, 140 RECUEIL DES COURS 321, 327 (1974 IV); Falk, Toward World
Order Respectful of the Global Ecosystem, ENV AFFAIRS 251 (1971); Gofman, The EXIStence of
Nuclear Weapons: PrIme EnVironmental Threat, 1 ENV. AFFAIRS 782 (1972); if. Stockholm Con-
ventIOn supra note 66, PnnClples 1, 2, & 4.
166. See The Perversion of SCIence and Technology: An Indictment (Poona Indict-
ment), adopted by the partiCIpants m the fourteenth meetmg of the World Order Models
Project held m Poona, India, July 2-10, 1978, repnnted In, 4 ALTERNATIVES - A JOURNAL OF
WORLD POLICY 413 (1978-1979); Independent Declaration on the EnVironment (Dal Dong
Dedarauon}, adopted by the partiCipants In the Da\ Dong Independent Conference on the
EnVironment, Gramage Stiftsgard, Sweden, June 1-6, 1972, repnnted In, 1 ALTERNATIVES-
AJOURNAL OF WORLD POLICY 406 (1975); Declaration on the Third World and the Human
EnVironment (01 Committee Declaration) adopted by the particIpants m the Conference
on Problems of the ThIrd World and the Human EnVIronment, Stockholm, June, 1972,
repnnted In, B. WESTON, R. FALK & A. D'AMATO, BASIC DOCUMENTS IN INTERNATIONAL LAw
AND WORLD ORDER 427 (1980).
167 N.Y. Times, May 6, 1986, at A7 col. 1.

Umon s second largest livestock productIon area. 16S The

Chernobyl plant IS on the northern edge of the UkraIne farm belt,
the locatIon of the country s best soil, and a major source for
wheat, sugar beets and forage for livestock. 169 North of the
Chernobyl plant IS another nch farm belt, and the Chernobyl area
Itself IS an area of daIry farms and cultIvation of rye, potatoes, and
fiber flax. 170 The accIdent occurred wIthIn months of the harvest-
mg season.l7l Never before has a natIOn been faced WIth the pos-
sibility of extensIve radiatIOn damage to large tracts of
farmland. 172 Some have suggested that wlthm SIX miles of the re-
actor land must be extremely contamInated and will probably be
unmhabltable for generatlons. 173
The heavIest radioactIve partIcles produced by the accIdent
could be expected to fall WIthIn a fifty mile radius of the plant. 174
OptIOns for detoxifymg any radioactIve soil are limlted.175 For
relatIvely small areas, surface soil can be stnpped and buned else-
where. 176 The Umted States has used thIs techmque tWlce-once
when a Umted States military plane carrymg nuclear weapons
crashed m SpaIn In the 1950's, and once as a result of contamma-
tIOn of the Marshall Islands dunng nuclear weapons tests m the
PaCIfic. l77 With extensive contamInatIOn, the only remedy may be
to walt several hundred years. 17S
On May 15th Mikhail Gorbachev In a natIOnally televIsed ad-
dress, claImed "the worst has passed" and proposed a global
warmng system to handle future aCCldents. 179 Ukralman Pnme
Mimster Aleksandr Lyashko told reporters In Kiev that Moscow
offiCIals did not learn the full graVIty of the aCCIdent until April 28
when It was reported by the SOVIet government (although one
can questIOn how long It takes to understand the gravIty of an
explOSIOn In a nuclear reactor that blows ItS roof off) ISO On May
168. /d.
170. Id.
171. /d.
172. N.Y. Times, May 3,1986, at 4, col. 2.
173. N.Y. Times, May 1,1986, at All, col. 4.
174. N.Y Times, May 2, 1986, at AlD, col. 6.
175. N.Y. Times, May 3,1986, at 4, col. 2.
176. /d.
177 /d.
178. /d.
179. N.Y. Times, May 15, 1986, at I, col. 6.
180. NEWSWEEK, May 19, 1986, at 37

1987] Chernobyl 233
1st the InternatIOnal Atomic Energy Agency sent a telex to the

Soviet authontles, urgently requestIng further details of the accI-
dent. 181 The twelve member countnes of the Common Market
protested the lack of notice and mformatlOn. 182 The West Ger
man Foreign Minister Hans~Dletnch Genscher said the SovIet
Union should authonze experts from the IAEA to VISit the site
(they subsequently did SO).1 83 Although agency Inspectors had
VIsited Soviet nuclear power states In the past, the agency did not
have the authonty to order the Soviet government to supply m-
formatlOn. 184 One newspaper reported that the United States
Secretary of State George Schultz was attemptIng to persuade the
Soviet Union to agree to safety InspectIOns of ItS plant by the
IAEA.185
By May 4th, Secretary of State Schultz was arguIng that there
was "an Inherent obligation that states have to prOVide mforma-
tlOn" about such events as nuclear aCCIdents which have an effect
on people beyond their borders.186 Also In May In addition to
denouncIng the Soviet Union, the seven Industnal natIOns at the
Tokyo EconomIC Summit meetIng called for a new treaty to estab-
lish rules for InternatIOnal behaVior In case of nuclear acCl-
dents.187 In 1981, the United States had floated a proposal
Similar to that of the Economic Summit at the United Nations but
the proposal received little attention. On June 3rd, Gorbachev
hImself called on other nations to JOIn the Soviet Union In
strengthening safeguards agamst nuclear disaster such as
Chernobyl In a message to Secretary General of the United Na-
tIOns calling for an InternatIOnal conventIOn on the subJect. 188
The Soviet leader also called for stronger measures to prevent
acts of nuclear terronsm. 189 Most Important, he said, was "a sys-
tem of prompt notification In the event of aCCidents and malfunc
tlons at atomic power plants when such occurences are
accompanied by the release of radiatIOn." 190 Mr Gorbachev sug-
181. N.Y. Times, May I, 1986 at AI, col. 3.

182. !d. at A12, col. 6.
183. Ed.
184. !d.
186. N.Y. Times, May 4, 1986, at 12, col. 3-4.
187 N.Y. Times, May 22, 1986, at A31, col. 5.
188. N.Y. Times, June 4, 1986, at 12, col. I.
189. !d.
190. !d.

gested that a nuclear safeguard system be codified m one or more

mternatIOnal conventions and that eXlstmg agenCies like the In-
ternatIOnal Atomic Energy Agency the World Health Orgamza-
lIon, the Umted NatIOns EnvlTonmental Program and the World
MeteorologIcal Orgamzatlon be used to strengthen safety meas-
ures for nuclear reactors. 191 On June 10, Gorbachev went even
further In Budapest he said that the leading nuclear powers
should work Jomtly to design a new generation of more reliable
nuclear reactors and agree to prOVide free medical care, housmg,
and other finanCial assistance to aCCident VICtIms. 192 Soviet offi-
Cials, however reiterated Moscow S pOSitIOn that It owed no com-
pensation to other European countnes because of damage to
agnculture followmg the nuclear accident at Chernobyl.193 So-
viet offiCials have argued that damage to agnculture m Europe
had been caused by media, consumer and government reactIOn to
the accident, not a threat of radiation, and turned aSide questIOns
about compensatIOn. 194 Meanwhile, on June 10th m Vienna at a
meetmg of the Governmg Board of the InternatIOnal AtomIC En-
ergy Agency countnes With nuclear weapons such as the Umted
States and the Soviet Umon seemed undecided whether to allow
military nuclear plants to be covered by a treaty requIrIng prompt
notificatIOn of any nuclear aCCidents. 195 Two treaties were under
consideration by the IAEA. One would reqUire member coun-
tnes to mform others Immediately of any Significant release of ra-
dioactive matenal. 196 The other proVides for other countnes to
give prompt assistance m the event of such an aCCIdent.197 The
Govermng Board also came closer to agreement on a package of
safety measures msplred by Chernobyl.198 The agency planned
to mcrease the number of mspectIOns It makes to check safety
precautions at member countnes nuclear mstallatIOns. 199
Many offiCials fear that any attempt to define preCIsely what
kmd of aCCident would have to be reported would be challenged
by governments hostile to nuclear power and by any nuclear envl-
191. !d. at A12. col. 2.

192. Washmgton Post. June 10.1986. at A'll. wl. 4.
193. !d.
194. !d.
195. N.Y. Times. June 12. 1986. at A8. col. I.
196. !d.
197 [d.
198. [d.
199. !d.

1987] Chemobyl 235
ronmental orgamzatlons. Both the Umted States and SovIet

Umon seemed unwilling to report accIdents at military nuclear
plants if disclosure would oblige them to reveal military
secrets. 200 As a result, many offiCials suspect that the new treaty
will be drafted m vague terms, wIth the burden of decIding
whether a nuclear accIdent could affect other countrIes restmg on
the government concerned.
On July 24th, a foreIgn mlmstry spokesman for the SovIet
Umon saId that the experIments that caused the Chernobyl nu-
clear accIdent were mtended to determme how long the plant
would contmue to produce electrICIty m an unexpected reactor
shutdown. "The Important thmg IS not that the experIment was
conducted," the spokesman saId, "the Important thmg IS that It
was conducted wIthout the necessary precautlons."201 He saId
the techmcal details would be available when a report of the So-
vIet Umon Government InqUIry CommIssIon was delivered to the
IAEA m Vienna m August. He also demed that engIneers of the
Chernobyl statIOn were trymg to sImulate an accIdent when the
real accIdent occurred. 202 SpeculatIOn contmued, however that
the accIdent may have been the result of experIments relatmg to
nuclear weapons. Among the officIals dismIssed after the
Chernobyl aCCIdent was Aleksmdr G. Neshkov First Deputy Min-
Ister of Medium Machme-Building, for the productIon of fissIon-
able matenal and nuclear arms. 203 The connectIon between thIs
agency and the generatIOn of commercIal nuclear power has not
been offiCIally explamed. As a result of the Chernobyl aCCIdent,
the nuclear electnClty mdustry has now been placed under a
newly formed separate Mimstry of Nuclear Power m the SovIet
Umon. 204
Everywhere, there was much talk about the SovIet Umon s m-
ternatIOnal obligatIOn "to prOVIde mformatlon.''205 Although the
mternatIOnal obligatIOn of the SovIet Umon to warn other states
of the approachmg radioactIvIty and to exchange mformatlon was
prImarily a moral one, some mternatIOnallaw scholars argue that
200. N.Y. Times,June 11,1986, at A4, col. 4; N.Y. Times, Aug. 14, 1986, at AI5, col. I;
Reuters, Sept. 24, 1986, AM cycle.
201. N.Y. Times, July 25, 1986, at A2, cols. 2-4.
202. /d.
203. /d.
204. /d.
205. N.Y Times, May I, 1986, at AI, col. 3; /d. at AI, col. 5.

there eXists a present or emergIng rule of mternatlOnllaw reqUlr

mg states to gIve notice of mformatlOn concernmg possible envI-
ronmental harm to potentially affected states. 206 Although full
analysIs of whether such a duty eXIsts IS beyond the scope of thIS
article, an agreement mcorporatmg such an obligatIon and others
appears Immment. In fact, when a Soviet submanne carrymg nu-
clear weapons sank off the coast of Bermuda, the Soviet Umon
Immediately notified the Umted States, on October 4th, m ac
cordance With a draft accord requIrIng prompt notIce of nuclear
accldents. 207
VII. THE NEED FOR REFORM
If any State seeks relief under mtematlOnallaw agamst the So-

viet Umon, thesUlt will probably not focus on the lack of notice,
but rather on the damage to health and agnculture m neighbor
mg states. For example, on May 5th, the Federal Republic of
Germany said that It was settmg up a group to determme whether
It could claim compensatIOn from the Soviet Umon for eventual
damage to crops from fallout from the Chernobyl disaster 208 On
May 3, German authontles m Bonn had ordered the Impounding
of supplies of fresh milk from several dairy regions contammated
by the fallout. 209 Although Germany never brought SUlt, It and
many other countnes and pnvate groups gave senous conSidera-
tIOn to the mtematlOnallaw that would govern such a SUlt. While
under the famous Trail Smelter case, one can conclude that a state
IS responsible for any matenal damage that occurs to another
state, even for conduct which emanates from pnvate parties
wIthm the offending state, if both matenal damage and causatIOn
206. For further diSCUSSIOn concerning whether international law reqUIres notice and
exchange of information regarding state' lawful actIvIties whICh may cause trans-
boundary envIronmental damage, see Carvell, The North Dakota Garnson DiverSIOn Project and
International EnVironmental Law, 60 N.D.L. REV. 603, 637-646 (1984); SchneIder, State Re-
sponsibility/or EnVironmental ProtectIOn and PreservatIOn, 2 YALE STUDIES IN WORLD PUBLIC OR-
DER 32, 60-65 (1975); see also Handl, supra note 116, on the legality of nuclear plant sIting
In border areas. Arucle 28(2) of the AtomIC Law of the Federal Republic of Germany
reqUIred the state to compensate VIctims of the aCCIdent for property damage and agncul-
tural damage. See also RESTATEMENT OF FOREIGN RELATIONS LAw § 601 comment (1983).
207 N.Y. Times, Oct. 7 1986, at A30, col. I.
208. N.Y Times, May 5, 1986, at A6, col. 6. Article 38(2) of the AtomIC Law of the
Federal Republic of Germany reqUIred the state to compensate VICtims of the aCCIdent for
certain property damage and agricultural losses.
209. N.Y. Times, May 3, 1986, at A4 (pIcture caption).

1987] Chcrnobyl 237
can be demonstrated, mternatIonal law has several roadblocks to

recovery
First, what IS not clear under mternatIonallaw IS the applicable
standard for determmmg liability As discussed above, there are
three possible standards: (1) liability whIch must be predicated on
negligence, recklessness, or mtentIOnal harm; (2) liability for an
unreasonable Interference WIth the natural resources of another
state; or (3) liability predicated on absolute liability or stnct liabil-
Ity for ultrahazardous actIVIties. Under the second and thIrd stan-
dards, the state would be liable even if It was not the operator of
the reactor at whIch the aCCIdent occurred. Second, the damages
that would be recoverable are even more uncertaIn. Under Inter
nauonallaw damages are obtaInable for loss of property and per
sonal Injury Recovery for economIC loss, however seems
somewhat less sure, as do damages for emotIOnal distress and
psychologICal ImpaIrment.
ThIrd, the major failing of mternatIOnal law In thIS area IS the
lack of means for actual enforcement. The pnmary means of en-
forcement would be In the domestIc courts of the transgressor
state, but the availability of InternatIOnal law m such forums
would depend on the extent to whIch the state Incorporates Inter
nauonallaw Into ItS own domestIC law and holds It to be enforcea-
ble. Enforcement would be hampered by many common
domestIc barners to JunsdictIOn and enforcement, e.g. sovereIgn
Immumty extra-terntonal enforcement, and standing. Though
the ObVIOUS forum, the InternatIOnal Court of JustIce ean only be
utilized by a state agamst a state and only If the defendant state
consents to JunsdictIOn. The SOVIet Umon has not consented to
JUflsdictIOn In the InternatIOnal Court ofJustIce. In additIOn, de-
CISIons of the InternatIOnal Court of JustIce are only enforceable
by the Secunty Council of the Umted NatIOns, In whICh the SOVIet
Umon has a veto. Other problems WIth current mternatIOnallaw
eXISt. For example, there IS, at best, only an emergIng rule of
InternatIOnal law that notificatIon and exchange of InfOrmatIOn IS
reqUIred In the event of an aCCIdent that Imposes matenal damage
upon another state. Also, the pnmary treaty specifically gov-
ernIng compensatIon for VICtIms of a nuclear aCCIdent IS the Vi-
enna ConventIon on Civil LIability for Nuclear Damage. Yet ItS
usefulness IS hampered by limIted partICIpatIon In the treaty
whIch does not mclude eIther the Umted States or the SOVIet
Umon. As for InternatIOnal standards of safety for nuclear reae

tors to prevent nuclear accidents, the IAEA only has the authority
under Its statute to mspect nuclear reactors to msure that the In-
formatIOn and assistance provided by the agency are not beIng
Improperly used for military purposes. Thus, the IAEA has no
present authority to Impose any bInding safety standards.
What then would be the result if a European state attempted to
seek compensatIOn from the Soviet Umon for the agriculture
damage whICh occurred from the Chernobyl accident? Under the
prInCiples of InternatIOnal law analyzed above what would be the
likely outcome of such a SUIt? Assummg that the Soviet Umon
would not voluntarily provide compensatIOn, successful recovery
IS very unlikely There IS no Issue of VicariOUS liability for the fall-
out damage because the Soviet Umon IS responsible directly as
the operator of the Chernobyl plant. The next, more trouble
some Issue would be the standards for liability As noted above,
state responsibility IS generally predicated on fault, I.e., Inten-
tional wrongs, recklessness, or negligence. However It has been
argued that InternatIOnal law recogmzes strict liability for envI-
ronmental harm based on ultrahazardous activity The operatIOn
of a nuclear power plant should conStitute an ultrahazardous ac
tlvlty In which the harm cannot be removed through reasonable
care. Fault standards are Inadequate to deal with the potential
hazards from complex technology The standards of care and
tests of forseeability become obscure and Inadequate when ap-
plied to the possible scope of a nuclear disaster EqUIty and eco-
nomic analysIs both POInt toward ImposIng the burden of
compensatIOn on the nuclear mdustry and, ulumately on the
state as the parties best able to reduce risk and absorb damages.
In attributIng to the state direct responsibility and strict liability
the state has a direct InCentIVe to legislate and regulate to mIni-
mize the risk of the activity Limitations of causatIOn, force
majeure, and dollar limitatIOns on recovery210 are sufficient to as-
sure that states will not be unduly burdened In such a way as to
hamper their discretIOn m developIng natIOnal energy resources.
It IS partICularly appropnate In the InternatIOnal context that
stnct liability should be recogmzed as the legal standard when
matenal and environmental harm results from ultrahazardous ac
tlvltles. Strict liability for such harm aVOids many of the problems
210. Most states have domesuc statutes limlung the amount of recovery for nuclear
aCCident. Congress IS now reconsidering the Pnce Anderson Act which sets limit of$665
million for single aCCident. N.Y. Times, June 15, 1986, § 3 (BUSiness) at 3, col. 3.

1987] Chernobyl 239
assoClated with fault standards m an mternatIOnal settmg, such as

discernmg norms of conduct that are suffiClently pervasive
around the globe to make It clear that deviatIOn below those
norms would constltute negligence. Havmg noted the difficulity
of developmg mternatIOnally recogmzed defimtIOns of reasonable
care, however a relatIvely strong argument can be made that the
lack of a contamment structure and adequate backup system at
Chernobyl was negligent and would be so recogmzed almost um-
versally Some Western experts on nuclear technology have as-
serted that the Soviet Umon has the worst nuclear safety plannmg
of any nation, even worse than that m developmg countnes and
the rest of the Soviet block. 211
However even if we assume that It can be demonstrated m m-
ternatIOnal law that the Soviet Umon IS liable for damages to
those countnes whICh suffered from radioactive fall-out, that lia-
bility may not beJudiClally enforceable. The Soviet Umon has not
consented to the Junsdictlon of the InternatIOnal Court ofJustice.
Therefore a state s only optIOn for JudiClal enforcement would be
m ItS own domestIC courts or those of the Soviet Umon where
procedural and JunsdictIOnal obstacles, such as sovereign Immu-
mty standing and other obstacles preVIOusly discussed, would m
all likelihood prevail. In additIOn, linkmg death and disease m the
general population to the radioactive fall-out would present a dif-
ficult causatIOn Issue m any forum. Estimates of the number of
cancer deaths from the accident, for example, vaned from 5,100
to 24,000. 212 And finally even if a state IS successful on the mer
ItS m demonstratmg the damages, It IS not at all clear what types
of damages would be recoverable. Damages to person and prop-
erty would m all probability be recoverable. It IS much less clear
whether damages for economIC loss and damages for pam and
suffenng could be recovered. To illustrate, Welsh farmers as late
as August were unable to take their lambs to slaughter because of
a government ban on sale of the lambs exposed to Chernobyl's
radiatIOn. 213 Was the damage sus tamed property damage, which
would be recoverable, or economiC loss, which would not be re
coverable? Arguably if the lambs were actually contammated
there would be property damage, but if the ban was purely pre-
cautIOnary there would only be economIC loss. Viewed as an Issue
211. N.Y. Times, May I, 1986, at A12, col. l.

212. N.Y. Times, Aug. 7 1986, at AI, col. 6.
213. N.Y. Times, july 3,1986, at AI, col. 2.

of causatIon, alternatively It would be the state government, not

the radiatIOn from the accident, that caused the loss. Certamly
that IS why the Soviet Umon stated that the damage to agrIculture
was the result of government and media overreactIOn and not the
aCCident Itself. However if viewed as a rule of causatIOn rather
than an arbitrary distmctlon m damages recoverable, It could be
argued that such government quarantmes are reasonably forsee
able as a result of an aCCIdent such as Chernobyl.
The difficulty under mternatlOnal law m obtammg compensa-
tIon from the SovIet Umon m what IS a relatIvely straIghtforward
sItuatIOn of state responsibility for radioactIve contammatlOn
hIghlights the madequaCIes of customary mternatIOnallaw m ad-
dressmg state responsibility for transboundary pollutIon. To pro-
VIde more adequate protectIOn from future "Chernobyls" than
that whIch presently eXIsts, several relatIvely straIghtforward re
forms should be made Immediately m the aftermath of accIdent's
condemnatIOn. To aVOId another aCCIdent like that at Chernobyl,
efforts should be made by bilateral agreements between the IAEA
and states to expand mspectlons by the IAEA to mclude safety
mspectlons. Twenty-one countrIes now have such agreements,
and there are some mdicatlOns of willingness on the part of the
SovIet Umon to enter mto such an agreement. ExtenSIve efforts
should be made to mcrease adherence to the Vienna Convention
on CompensatIOn for Nuclear Damage. Because the most likely
and most serIOUS forms of damage from an aCCident IS agrIcultural
damage, conSIderatIOn should be given to exemptmg such losses
from the general prohibItIOn agamst recovery of economIC loss.
Hopefully under the auspICes of the IAEA, a treaty will be
promulgated prOVIding for notificatIon and exchange of mforma-
tIon m the event of nuclear aCCidents threatemng mternatIOnal
envIronmental harm. Such a treaty should mclude military reac
tors as well as CIvilian reactors, as there IS no difference m the
envIronmental harm and It IS unlikely that any such reqUIrement
would Jeopardize any state s natIOnal secunty There should be a
speCIfic defimuon of what types of aCCIdents would qualify for re-
portmg restnctlOns m order to aVOId the very likely possibility of
states makmg theIr own unilateral and self-servmg determmauon
of what aCCIdents should be reported.
There IS presently no treaty which generally governs enVIron-
mental protection of global resources. Such a treaty could mcor
porate current standards of protectIOn m custom and general

1987] Chemobyl 241
pnnClples of mternatIOnallaw while strengthemng theIr enforce-

ability by provIding for mcorporatIOn of those standards mto the
domestIc law of the treaty s SIgnatones, and by provIding for m-
ternatIonal arbItratIon m adjudicatIon of transboundary pollutIon
claIms. Such a treaty mIght also reqUIre notificatIon and mterna-
tIOnal consultatIon before development of any project posmg an
Immment, transboundary threat of envIronmental damage.
The present tIme presents a umque opportumty to actually Im-
plement many of these suggestIons, if for no other reason than
that the SOVIet Umon and the Umted States are trymg to outdo
each other m argumg that somethmg must be done. In Septem-
ber SOVIet offiCials announced that entombment of the fourth re
actor at Chernobyl was on schedule, and that the first and second
reactors would resume operatIon m November 214 In August, nu-
clear experts had already expressed concern With the SOVIet
Umon s new safety plans for Chernobyl-type reactors. 215 The
IAEA prOjects that by the year 2000, slightly more than half of the
countnes WIth nuclear power plants will be the less technolOgI-
cally advanced, developmg countnes. 216 The tOXIC destructIOn of
Bhopal, the tragedy of the Challenger shuttle, and the aCCIdent at
Chernobyl should serve as strikmg remmders that technology
cannot regulate Itself. We are m the technolOgIcal space age, yet
mternatIOnal envIronmental regulatIon IS still pnmItIve. We can
and do make mIstakes, and we must be prepared as a global com-
mumty to handle the consequences.
214. N.Y. Times, Sept. 16, 1986, at A5, col. 4.

215. N.Y. Times, Aug. 28, 1986, at AI, col. 5.
216. International Nuclear Safety Concerns: Heanngs Before the Subcomm. on Energy, Nuclear
ProliferatIon and Governmental Processes of the Senate Comm. on Governmental Affairs, supra note
162, at 5.


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College of William & Mary Law School

The Chernobyl Accident: A Case Study in

On Saturday April 26, 1986, at 1:23 a.m., the worst aCCIdent m

HeinOnline -- 12 Colum. J. Envtl. L. 203 1987

curred m 1957 at Bntam s Windscale graphIte reactor 5 How-

HeinOnline -- 12 Colum. J. Envtl. L. 204 1987

mately 5,100 degrees the uramum-oxide fuel Itself begms to

17 The Chernobyl Syndrome, NEWSWEEK, May 12, 1986, at 23 [heremafter Syndrome].

HeinOnline -- 12 Colum. J. Envtl. L. 205 1987

28th was brought mto the heart of Europe by shiftIng wmds on

31. N.Y. Times, May 6, 1986, at A6, col. 1.

HeinOnline -- 12 Colum. J. Envtl. L. 206 1987

After the Chernobyl aCCident, the Soviet Umon was

HeinOnline -- 12 Colum. J. Envtl. L. 207 1987

rent system, and necessary reforms to the system m light of

I. LIABILITY FOR TRANSBOUNDARY POLLUTION UNDER CUSTOM

45.Reuters North European ServICe, May 13, 1986, AM cycle.

HeinOnline -- 12 Colum. J. Envtl. L. 208 1987

tIOn of Its sovereIgmty 54 The fact that pollutants from Canada

54. ld. at 1932-33.

HeinOnline -- 12 Colum. J. Envtl. L. 209 1987

HeinOnline -- 12 Colum. J. Envtl. L. 210 1987

do not cause harm m areas beyond their tern tory 66 Principle 22

HeinOnline -- 12 Colum. J. Envtl. L. 211 1987

natIonal law the most controverSIal of these two doctrmes IS the

II. FAULT STRICT LIABILlY AND THE PARAMETERS

The doctrme of good neIghborliness, as a general prmCIple of

HeinOnline -- 12 Colum. J. Envtl. L. 212 1987

As early as 1966, C. Wilfred Jenks, cltmg treaties governmg aVI-

One commentator also relymg on the general pnnclples of

HeinOnline -- 12 Colum. J. Envtl. L. 213 1987

negligent conduct IS not necessary for liability but IS relevant to

HeinOnline -- 12 Colum. J. Envtl. L. 214 1987

tIonal Law CommIssIon, for example, largely reflect thIS tradi-

HeinOnline -- 12 Colum. J. Envtl. L. 215 1987

An additional theory whIch may be utilized to reqUIre States to

HeinOnline -- 12 Colum. J. Envtl. L. 216 1987

HeinOnline -- 12 Colum. J. Envtl. L. 217 1987

reqUires the state to discontmue the harmful conduct. In a semI-

HeinOnline -- 12 Colum. J. Envtl. L. 218 1987

III. TRANS BOUNDARY POLLUTION OF THE GLOBAL COMMONS

Transboundary pollutIOn which contammates the ocean

HeinOnline -- 12 Colum. J. Envtl. L. 219 1987

In recent years there have been numerous multilateral conven-

HeinOnline -- 12 Colum. J. Envtl. L. 220 1987

mchoate doctrme of "pollutIOn" m mternatlOnal law has smce

HeinOnline -- 12 Colum. J. Envtl. L. 221 1987

the InternatIOnal Court of JustIce was directly presented with the

HeinOnline -- 12 Colum. J. Envtl. L. 222 1987

HeinOnline -- 12 Colum. J. Envtl. L. 223 1987

IV JUDICIAL ENFORCEMENT OF CUSTOMARY INTERNATIONAL LAw

As IS so often the case, Judicial enforceability IS an obstacle to

HeinOnline -- 12 Colum. J. Envtl. L. 224 1987

commerCial activities. 123 Under the Umted States Supreme Court

HeinOnline -- 12 Colum. J. Envtl. L. 225 1987

V LIABILITY FOR TRANS BOUNDARY POLLUTION PURSUANT

HeinOnline -- 12 Colum. J. Envtl. L. 226 1987