Facing the challenge of nuclear mass tort processing

A great majority of states do not issue any specific legislation on nuclear mass tort litigations. They apparently build on general traditional practice as most probably already tried and tested in other areas. Some states defer the decision on the way to deal with mass tort claims to the time of the nuclear incident. They insert into their nuclear liability laws respective 'reminders' that contain an invitation or a demand to the legislator to take appropriate steps if and when necessary. Finally, there are a number of states that enacted elaborate regimes on how to react to, and organise, compensation of mass damages after a catastrophic nuclear incident. Among those states are in particular major nuclear states like Canada, India, Japan and the US. They developed compensation schemes where claims for compensation of nuclear damage shall be dealt with by fora that are not regular courts. In some of those states, the fora are exclusively competent without a right to appeal their decisions, while in other states the fora act in parallel or in complement to courts. So the international scenario appears to be somewhat confusing. Of course, sovereign states are free to organise claims processing, including nuclear mass claims processing, as they deem fit. The discretion of states is, however, limited by obligations under public international law. With regard to the victims of nuclear incidents, states are particularly bound by obligations under the 1948 Universal Declaration of Human Rights and other relevant instruments they may be a party to. National nuclear mass claim processing has in particular to comply with the obligation to guarantee 'a fair and public hearing by an independent and impartial tribunal'. With regard to possible international obligations vis-a-vis other states, it has to be taken into account that major nuclear incidents, as a rule, have transboundary detrimental effects. There is always a potential impact on territories other than the territory of the incident state. As a consequence, states with nuclear programs have to be aware that a nuclear incident may cause damage in the territories of other states and they have to take precautionary measures to prevent such impact on other territories. This brings into play the public international law principle of good neighbourliness. The principle imposes the obligation on a state not to use its own territory in a way that causes significant damage in neighbouring countries. Of course, that principle addresses states that have nuclear programs rather than non-nuclear states. Those programs may be qualified as constituting a permanent potential threat to neighbouring states. So a nuclear state and its non-nuclear neighbours form a risk community. If, however, a common risk exists, there are also common obligations to contribute to preventing that the risk is materialised into a damage or, if so, to contribute to mitigating the consequences of the damage. In Section 3.1 of this article, it has already been explained that the advantages of the international nuclear liability conventions can only fully be enjoyed if parties jointly train to fight nuclear emergencies including the nuclear claims processing. Those exercises require that states have mutual knowledge of how other parties deal with nuclear mass tort litigations. The joint practice for an emergency indeed could be seen as complying with an implied accessory obligation under the nuclear liability conventions to fully be able to use their advantages. A treaty obligation to co-operate can be identified. That obligation may be supported and strengthened by the obligations connected with being part of the described risk community. It follows from these considerations that states would be well advised if they at least develop, establish and publish, the basic schemes of their respective nuclear mass tort litigations organisation. That requirement would not adequately be met through legislation that defers the decision to the time of the nuclear incident. Such an approach does not provide sufficient detailed advance information to be used by other states. The victim of other states should know: what will happen if there is nuclear damage in excess of the compensation money to be provided by the person liable? Will there be pro rata compensation or will the state step in and ensure full compensation? Is class action possible under the respective national regime? Which rules apply to the onus of proof? Legislation covering those issues that is only enacted after the nuclear incident does not sufficiently support prompt compensation. Respective legislation should be made available prior to the occurrence of a nuclear incident. The organisation of nuclear mass tort processing is a subject that needs further observation. Perhaps it might even be advisable to establish international treaty relations on a joint skeleton of nuclear mass tort litigation