Nuclear liability

As the production and use of nuclear energy for peaceful purposes developed in the 1950s, a specific legal framework for third party nuclear liability was established to ensure adequate compensation for damage to persons and property resulting from a nuclear accident, but also to encourage the industry to develop nuclear technology and assume responsibility without being exposed to an uncertain and potentially ruinous liability burden.

Significant attention has been understandably placed at the international and national levels on fostering strong programmes to achieve high levels of safety, security and safeguards. Notwithstanding efforts to achieve high levels of safety, the possibility remains that accidents may occur within a nuclear installation (i.e. not only nuclear power plants but also any installation in which there are nuclear fuel, nuclear substances, radioactive products or waste) or during the transportation of nuclear substances to or from a nuclear installation. As the experience shows from the accidents that occurred at Three Mile Island (United States) in 1979, Chernobyl (former USSR) in 1986, and Fukushima Daiichi (Japan) in 2011, severe accidents can have varying and potentially far-reaching consequences affecting both people and property.

The development of the nuclear liability regimes stemmed in part from the viewpoint that ordinary rules of tort law, while appropriate for conventional risks, could hamper rather than help victims of nuclear damage in obtaining adequate compensation in a timely manner.

The international nuclear liability instruments that have been adopted are:

The main principles common to these conventions, which have also been reflected in most national nuclear liability laws worldwide, are as follows:

  • The exclusive liability of the operator of the nuclear installation where the nuclear incident occurred;
  • The strict (absolute) liability of such operator;
  • The establishment of a maximum liability amount to be borne by the operator, the nuclear liability conventions providing for a minimum threshold. Only a few countries, such as Germany, Switzerland and Japan, have provided for unlimited liability under their nuclear liability legislation;
  • The obligation for the operator to have and maintain financial security to cover its nuclear liability and ensure availability of funds;
  • The obligation of the victims to file claims within a certain period (prescription period).

The international nuclear liability conventions also incorporate principles specifically designed to address the complexities posed by the potential transboundary damage and cross-border compensation claims:

  • Determination of the competent jurisdiction and enforcement of judgments,
  • Determination of the applicable law and equal treatment (no discrimination based upon nationality, domicile or residence).
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NEA work on this topic

As required under its Statute, the OECD Nuclear Energy Agency (NEA) contributes to the promotion of a system for third party liability and insurance with respect to nuclear damage. To achieve this goal, the NEA contributes to the modernisation of the international nuclear liability regimes and encourages the strengthening of treaty relations between interested countries to address liability and compensation for nuclear damage.

A significant focus of the NEA Nuclear Law Committee (NLC) is to encourage provisions for equitable compensation of damage in the event of a nuclear incident. In particular, the Committee is mandated to deal with issues relating to civil liability for damage caused by a nuclear incident and financial security mechanisms designed to ensure that funds will be available to compensate such damage. It addresses these issues in the context of member countries’ nuclear legislation as well as the nuclear liability international instruments. The NLC will also strive to eliminate or minimise any legal impediments to the safe use of nuclear energy.

In this area, the NLC has established the Working Party on Nuclear Liability and Transport (WPNLT) and the Working Party on Nuclear Liability and Radioactive Waste Disposal Facilities (WPLDF) (formerly the Working Party on Deep Geological Repositories and Nuclear Liability (WPDGR)).