International Law and the Chernobyl Accident - Reflections on an Important but Imperfect System

The sheer magnitude of the accident that occurred in 1986 at the Chernobyl nuclear power plant in the Soviet Union placed severe strains on the international legal system, revealing many of the system's limitations, but at the same time illustrating the potential of international cooperation in dealing with the ever increasing array of problems of international dimension. This article analyzes the international legal implications of the Chernobyl accident as a means of illuminating some key features of the international legal system. It is hoped that the reader unfamiliar with the international system will thereby gain a more balanced understanding of that system. In particular, the Chernobyl accident raises two critical issues. First, should the Soviet Union be held liable for damage caused in other states by the accident, and if so how? Second, what steps should the international community take to prevent such accidents and minimize their harm if they occur? The liability issue was raised directly by several governments which indicated that they would seek compensation for damages caused by the accident. Moreover, the sharp criticism of Soviet delay in informing the rest of the world of the accident suggested liability because it implied a Soviet obligation to warn. Nonetheless, experts in international law consider it unlikely that the Soviet Union will compensate other nations for injuries to their nationals caused by the accident. This assessment reveals an inescapable truth about the international legal system: because it lacks a central authority to legislate, adjudicate, and enforce legal rules, the system often cannot control the behavior of states. The article thus begins with a consideration of this inherent limitation of the international legal system, both in general terms and in the specific context of Soviet liability for the Chernobyl accident. In particular, it discusses (1) how the absence of an international legislative authority limits the development of international legal rules, and analyzes the resulting uncertainty surrounding international rules of liability for transboundary environmental damage; and (2) how the absence of adjudicative and enforcement power limits the mechanisms available for resolution of international legal disputes, and specifically consider the prospects for resolution of disputed claims arising from the Chernobyl accident. These limitations suggest that the international legal system in its current state cannot successfully resolve liability issues arising from the Chernobyl accident. This conclusion may only reinforce the belief of many of those unfamiliar with international law that international law is unnecessary or irrelevant. However, international law has an increasingly important role to play in the ordering of world affairs. Particularly with respect to environmental matters, the need for international cooperation has become increasingly apparent. Thus, despite the criticism directed at the Soviet Union, the international reaction to the Chernobyl accident also revealed a willingness to cooperate. Governments and private groups offered assistance to Soviet efforts to control the accident and treat victims. Moreover, in August of 1986, after the immediate danger from the accident had passed, representatives from many states, including the Soviet Union, met in Vienna. At the Vienna Conference, the Soviet Union reported on the causes of the accident, and the delegates considered steps to deal with such problems in the future. Thus, the article also examines international cooperation in the wake of the Chernobyl accident, including the potential contributions of ongoing efforts to clarify the international law of liability and the role of the International Atomic Energy Agency in coordinating the international response to future accidents. This discussion leads to the conclusion that, despite its limitations, the international legal system has an essential role to play in dealing with problems of international dimension. Nonetheless, this role must be fashioned with reference to the limits of that system. It is better for the international community to devote its efforts towards realistic goals than to strive for results that are unattainable in a world of sovereign states.