Aleksey Pavlovich Anisimov & Anatoliy Jakovlevich Ryzhenkov. Journal of Energy & Natural Resources Law. Volume 34, Issue 3, 2016.
Introduction
Thirty years ago, on 26 April 1986, one of the most terrible ecological disasters in human history occurred—the accident at the Chernobyl nuclear power plant (NPP). According to the International Atomic Energy Agency (IAEA), the causes were drawbacks in the reactor design, staff mistakes and the low level of safety culture. Radioactive contamination was reported in the territories of at least 20 states. This disaster caused enormous environmental, economic, genetic, moral and other damage, and its health effects will be felt by several coming generations of people affected by radiation. The accident highlighted all the shortcomings of the Soviet totalitarian system: lack of attention to the people, negligence, lies and disregard of occupational safety and health rules.
This tragedy was followed by immense changes in the energy security system and the legal consolidation of environmental requirements in terms of operation of power facilities, the right to social security and in a range of other fields of social life.
The psychological shock after the accident in the mass consciousness of populations around the world associated with the threat of new accidents at nuclear power plants has not been fully investigated yet. Therefore, perception of the world ‘before and after the disaster’ continues, existing in the memory of not only the liquidators of the accident and members of their families, but also millions of ordinary people sitting in front of TVs.
Undoubtedly, this psychological trauma could not be without political effect, which manifested itself not only in the impact of the accident at the Chernobyl NPP on the collapse of the Soviet Union, but also in the changed attitude of society towards environmental issues, the emergence of the environmental rights movement, the provision of environmental requirements in the programmes of political parties, mass marches, pickets and demonstrations with environmental slogans. However, it can hardly be stated that mankind has learned all the lessons from this tragedy. The accident at the Fukushima-1 NPP in Japan in 2011 showed that neglecting safety requirements in such an environmentally dangerous field as nuclear energy is unacceptable. In this regard, there is an urgent need to conduct historical legal analysis of the tragedy at the Chernobyl NPP, to identify the causes and effects of the disaster and to determine at least a general list of lessons to be learned from it.
Background and some health effects of the accident at the Chernobyl NPP
In the course of approving the development of a nuclear energy programme in the USSR in the 1960s, the government and the communist party leadership decided to place NPPs in densely populated areas. The design of these NPPs did not include the construction of ultra-strong sealed ‘caps’ or, in scientific terms, ‘containment’ over their reactors. At the same time, the reactor type did not play a big role. These ‘caps’ were installed on a mandatory basis on the reactors of all NPPs in the West and then the East as well. This requirement became mandatory after the case in 1961 when a research reactor exploded due to a fault by staff, and because of the threat of terrorism faced by European countries around the same time. Installation of such ‘caps’ increased the cost of construction and electricity about one-and-a-half to two times; however, it addressed the two most important security risks. First, these ‘caps’ kept all hazardous and radioactive substances inside and did not let them out in case of accidental or deliberate explosion of the reactor. Secondly, they physically protected the reactor against impact from external sources (terrorist attack, accidental crash of an aircraft, bombing, meteorites, etc).
At that time, the leadership of the USSR discussed two patterns of nuclear energy development. The first pattern involved development of nuclear energy according to the principle of nuclear energopolis, which meant construction of groups of NPPs in sparsely populated areas together with towns for operating staff with supplies of generated electricity to the densely populated areas through ultra-high voltage transmission lines. Such an arrangement would ensure high professionalism of staff, and in the event of an unexpected emergency the loss to the state and the population would be minimal. However, in the course of discussions at the level of government and the top party bodies, the second pattern gained a victory. Its supporters underlined the high safety of nuclear reactors and relatively more expensive electricity of nuclear energopolises. Therefore, all the NPPs were built without ‘caps’ in densely populated areas to bring electric power sources closer to the consumer and thereby significantly reduce the cost. This political decision was not the cause of the Chernobyl accident, but set conditions in motion for its disastrous effects.
Another negative factor was the choice of the reactors for the development of nuclear energy of the USSR. Adoption of this strategic management decision should have included considerations of security and efficiency of each of the possible structural models of the reactor and the calculation of economic, environmental and other significant effects of introducing of one or another model in the long term. A range of technical, economic, environmental and other expert examinations should have been carried out for this purpose. However, the decision-making process developed in a different way. The apparatus of the Communist Party of the Soviet Union (CPSU) Central Committee decided that the Soviet Union needed reactors that were most efficient at producing plutonium for military purposes. This requirement was crucial for all subsequent expert and management decisions. The RBMK-1000 reactor met these criteria. Since the safety costs were the lowest for this reactor model, the choice was made entirely in its favour.
No other non-totalitarian state chose the RBMK-reactor such as the one located in Chernobyl. That is why some scientists believe that the main lessons to be learned from the Chernobyl disaster are political and social, rather than technical, economic or legal. These lessons should not affect discussion of the technology of modern commercial nuclear power.
During the construction of the third and fourth NPP power units the State Security Committee (KGB) of Ukraine detected cracks and displacement of load-bearing slabs, destruction of their thermal protective layer and loss of properties of the reinforced concrete structures because of the almost twofold excess of the design temperatures. However, even the poorly constructed third and fourth power units proved to be not the worst option. The previously constructed first and second power units were still less safe for the environment. The first five years of operation of the Chernobyl NPP (1977-81) were marked by 29 emergency stops, including eight due to the fault of the staff. On 9 September 1982, there was an emergency stop of the first power unit, during which the question arose for the first time about the assessment of the radiation situation in the areas surrounding the NPP while a decision regarding a possible evacuation of the population was adopted. The Interagency Committee detected an increase of background radiation in the territory of the plant 14 times exceeding the maximum permissible concentrations (MPC) and in the sanitary protection zone, an increase exceeding the original natural background of the area 40 times. Some radioactive elements that could cause severe diseases in humans were recorded within the 14km zone around the NPP.
Along with the drawbacks in the design and construction of the Chernobyl NPP there was lack of understanding of the seriousness of the current situation. The causes of the man-made disaster are not entirely clear in spite of 30 years of research. The obvious design errors, low security level and unpredictability of RBMK-1000 reactors, multiple violations of the construction technology, ignoring the rules of operation by the NPP staff: each of these factors individually and all of them together could be the trigger of the tragedy. The official government committee sought not the causes but the guilty, and only among the plant staff members. The creators of the reactor, the managers of design institutes and construction companies bore no responsibility.
Seismic activity was also mentioned among the non-traditional versions of the disaster: the explosion occurred 20 seconds after an earthquake measuring 2-3 on the Richter scale. This information was confirmed by seismograms at the next three stations of the Ukrainian Complex Seismological Expedition and records of seismographs in the Academy of Sciences of Ukraine and the regional centres. However, until recently all this was ignored because, according to the design calculations, the concrete structures of the NPP were easily able to withstand seismic activity of magnitude of up to 7, which is actually 16 times greater than a 3-magnitude earthquake. The question about the practical security of this NPP currently remains open.
The disaster at the Chernobyl NPP contaminated more than 145,000km2 of the territory of Ukraine, the Republic of Belarus and the Russian Federation, with the density of contamination with radionuclides 137Cs and 90Sr exceeding 37 kBq/m2 (or 1 Ci/km2). To record the effects of the Chernobyl accident, in June 1986, the Ministry of Health of the USSR adopted a large-scale programme for creation of the All-Union Distributed Registry of Persons Exposed to Radiation. The registers in affected persons as of 1 January 2011 included 2,210,605 residents in Ukraine and 788,755 citizens in Russia; the number of accident liquidation participants in those countries were 255,862 and 194,333 persons respectively. The main radiological effects of the accident at the Chernobyl NPP are divided into early and delayed effects. Early effects include acute radiation sickness, local damage to skin and eyes, and haematological, immunological and cytogenetic disorders in the accident liquidation participants and the population. Delayed radiological effects are an increase in the incidence of thyroid cancer and leukaemia; an increased incidence of cancer among the liquidators; growth of overall mortality and vascular mortality of the accident liquidation participants and evacuees; and radiation cataracts.
The dynamics of integrated health indices of the liquidators of the accident at the Chernobyl NPP in 1986-87 for the period of 1988-2008 reflect considerable deterioration: the number of healthy persons decreased from 67 per cent to 5.4 per cent; and the percentage of patients with chronic diseases increased for 20 years from 12.8 per cent to 82.3 per cent. Mortality of the participants of the accident liquidation from non-neoplastic diseases in the period of 1988-2008 increased from 2.2 per cent to 12.0 per cent. The number of healthy children progressively decreases—from 30 per cent in 1989 to 1 per cent in 2010. With the course of time the problems of Chernobyl do not reduce. Adverse effects are marked in the distant post-accident period as well. For example, 25 years after the accident victims still faced lack of necessary specialists in healthcare facilities and the impossibility of purchasing medicines. Programmes for radiation protection of the population of the areas contaminated with radionuclides require development of new and improvement of existing legal acts.
It would be very hard to obtain a full picture of the impact of the Chernobyl accident on the health of the population for both subjective and objective reasons. Among subjective reasons, we point to the confidentiality of all information about the effects of the accident; falsification in the USSR of medical statistics for the first years after the disaster about the effects arising from it and these being irreplaceable from other sources; the lack of reliable medical statistics in the USSR (after its collapse in 1991 in Ukraine, Belarus and Russia); and clear attempts by the state authorities and the nuclear industry to downplay the effects of the disaster.
Moreover, it should be noted that the anthropocentric view of the effects of the accident prevails, despite other living organisms being affected by the disaster. The effects of the accident on the flora and fauna include obvious manifestations of radiation damage of individual species of plants and animals. At the moment, there are different genetic effects that lead to destabilisation of the genome and cause mutations and decreased reproductive ability of certain species. The exclusion zone is a unique place for research into the delayed effects of chronic exposure. These phenomena, against the background of the external well being of biocenoses, may pose a real threat of adverse effects in the distant future.
Impact of the accident on development of the legal, political and social fields in Russia, Ukraine and other countries of the former USSR
Dynamics of international and national environmental law under the influence of Chernobyl
Immediately after the Chernobyl disaster, the leading countries of the world began to develop international treaties, many of which were signed by the USSR and Russia later. Among these international treaties was the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (1986), the main objective of which is to ensure prompt and accurate provision of relevant information on nuclear accidents to minimise transboundary radiological effects. Each State Party to the Convention is obliged to notify the IAEA of the nuclear accident promptly, and the IAEA is vested with certain corresponding powers stipulated by the Convention. According to the Convention, the IAEA is the central point for receipt of data on nuclear accidents. In addition, the Convention on Early Notification of a Nuclear Accident (1986) was adopted within the framework of the IAEA, and soon a number of countries signed the framework Convention in this area—the Convention on Nuclear Safety (1994).
The Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (Vienna, 5 September 1997) was adopted shortly thereafter. The IAEA initiated the process of amending the 1997 Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage (1963), aimed at increasing the upper permissible limits of an operator’s liability, expanding the scope of application of the Convention, and defining the concepts of nuclear accident, nuclear facility and nuclear damage, among other aims. Similar amendments were made to the 2004 Protocol to amend the Paris Convention on Third Party Liability in the Field of Nuclear Energy (1960) and the 1963 Brussels Supplementary Convention. In 1997 the Convention on Supplementary Compensation for Nuclear Damage was open for signature; it is aimed at creation of a universal global liability regime uniting all states, including in respect of jointly raised funds. The mentioned measures received a very high appraisal in scientific legal literature.
However, the Chernobyl disaster had an even greater impact on the development of national environmental legislation, which had been ‘in its infancy’ in the USSR and its republics until 1986.
We cannot say that before the accident the Soviet Union had no environmental laws. Such rules did exist, but mostly they were either declarative (the Law of the RSFSR of 27 October 1960 ‘On the Protection of Nature in the RSFSR’) or referred to the protection of certain natural resources (land, water, forests, etc) and complexes (reserves, natural monuments, etc). Requirements for energy security in the Soviet Union were stipulated by bylaws. Among them, we should point out ‘Radiation Safety Standards NRB-76’ (1981) and ‘General Sanitary Rules of Work with Radioactive Substances and Other Sources of Ionising Radiation’ (OSP-72/80). On 6 May 1986, the Council of Ministers of the USSR approved and sent to the Ministry of Health of Ukraine ‘Temporary Permissible Content of Radioactive Iodine-131 in Drinking Water and Food (Dairy Products, Fish, Culinary Herbs) for the Period of the Accident Liquidation’. On 30 May 1986, permissible limits of radioactive substances in food were approved. As centrifugal tendencies in the Soviet republics intensified by the late 1980s, the USSR failed to adopt any general environmental laws, and these acts were adopted in the already independent republics. The Law of the RSFSR ‘On the Protection of the Natural Environment’ of 19 December 1991 became a basic act in Russia.
Environmental human rights were clearly enshrined (though to a different extent) in all the constitutions of the new independent states adopted after the collapse of the USSR. However, while the Constitution of Russia does not mention overcoming the effects of the Chernobyl disaster, the Charter of Bryansk Region (the subject of the Russian Federation most affected by the accident) stipulates in Article 19 that citizens living in Bryansk Region exposed to radiation as a result of the disaster at the Chernobyl NPP, according to decisions by state authorities of Bryansk Region and local government bodies, may be provided with measures of social support in addition to those established by the federal laws.
Overcoming the effects of the Chernobyl disaster as a state duty is directly stipulated by Article 16 of the Constitution of Ukraine.
The Chernobyl disaster is not mentioned directly in the main environmental laws (codes) of Russia, Ukraine and Belarus, which are dedicated exclusively to environmental protection issues, because the procedures for compensation for damage and benefits for affected persons are specified in separate laws in all three countries.
Nevertheless, all versions of the basic environmental laws (including those in force now) contain well-structured environmental requirements for certain types of activity, including in the area of energy. Moreover, fundamentally new powers of citizens and public ecological associations were enshrined in these laws in the 1990s, which reflected the increased level of awareness and activity within the population after the Chernobyl accident in defending their environmental rights. Ukraine’s Law ‘On the Protection of Natural Environment’ addressed the need for preventing accidents and eliminating their harmful environmental effects. The law requires that, during the design and operation of commercial and other facilities, which activities may adversely affect the environment, measures for the avoidance of accidents and liquidation of their harmful environmental effects are elaborated and implemented, and authorises respective bodies to regularly inspect the condition of such facilities and implement corresponding measures and requirements for their safe operation.
We will make an attempt to identify effects of the accident from the perspective of the environmental law in greater detail.
Environmental human rights
Environmental human rights, including the right to receive environmental information, began to develop in the post-Soviet space (in Russia they are now enshrined in Article 42 of the Constitution and Article 11 of the Federal Law of 10 January 2002, No 7-FZ ‘On Environmental Protection’; in Belarus—in Article 12 of the Law of the Republic of Belarus ‘On Environmental Protection’ of 17 July 2002, No 126-Z; in Ukraine—in Article 50 of the Constitution and in Article 9 of the Law of Ukraine ‘On the Protection of the Natural Environment’ of 25 June 1991, No 1264-XII).
In particular, the Constitution of Ukraine provides that everyone has the right to a safe and healthy environment and to compensation for harm inflicted as a result of violation of this right. Furthermore, the Constitution proclaims that everyone has the right to free access to information on the environment and the quality of food and consumer goods, as well as the right to spread such information. Such information must not be classified.
The special importance of this right for the Soviet people and citizens of Russia lies in the fact that the political management and media failed to inform the population about the Chernobyl accident immediately. For the period from 26 April to 2 May 1986, none of the Soviet daily and weekly newspapers reported reliable and true information about the accident.
The Izvestia newspaper first published information on events at Chernobyl on 30 April by means of a short message mentioning the actual accident, correspondent measures and creation of the government committee. The Pravda newspaper published its first informational message about the accident on 2 May 1986, in which it reported on the measures taken for the accident liquidation. However, this message included inaccurate information about the situation. In particular, t stated that as a result of the measures taken, the radiation level in the territory of the NPP and the surrounding areas had decreased 1.5-2 times; it reported on the correct operation of institutions, collective and state farms; it alleged that the reactor facility was capped, which suggested the integrity of the reactor. In fact, none of this was true on 2 May. In addition, hiding the truth, Soviet journalists fanned anti-Western hysteria by accusing the foreign media of slander for reports about the disaster.
The latter trend was caused by the fact that on 27 April at 2200 Sweden registered a sharp increase in radiation levels. At first, the Swedes attributed this situation to the activity of a company in the town of Forsmark, near Stockholm. However, by noon on 28 April, the Swedish authorities had stated that the source of contamination was outside the country. On the same day, the Minister of Energy of Sweden convened an emergency press conference, in the course of which he officially announced that the ‘wrongdoing state’ lay to the east of the territory of Sweden. On 29 April, the accident was reported in the news of one of the European news channels, and later repeated by the Voice of America and Radio Liberty. The Soviet media began to provide more or less reliable information about what happened at Chernobyl only two weeks later, when it became clear that the situation at the plant had somewhat stabilised. By that time the position of the Soviet media was as follows: there was an ‘accident’ at the Chernobyl NPP, as a result of which ‘the reactor sustained damage’.
Unfortunately, hiding information and the Soviet leadership’s traditional habit of deceiving its citizens generated a range of negative effects associated with attempts by party authorities in Ukraine to curry favour with the leadership of the Soviet Union. For this reason they decided to confirm the ‘normality of the situation’ by means of demonstrations and other festive events in honour of the Soviet holiday of 1 May in different cities in Ukraine. As a result, people walking along the streets of Kiev during the parade on 1 May received an additional dose of radiation, which later led to serious diseases. There are, however, some suggestions that the evacuation of the millions of inhabitants of the city its consequences would have been more hazardous than refusing evacuate and the granting of permission for the demonstration due to the reduction of ‘social and psychological tension of the population’.
After its enshrinement in the Law ‘On the Protection of the Natural Environment’ of 19 December 1991, and then in Article 42 of the Constitution of Russia (1993), the right to environmental information became a part of the legal field of Russia. However, its law enforcement practice still leaves much to be desired. The fact is that Russian journalists are afraid to write about the environment, as they do not want to be accused of espionage, as was the case with G Pasko. He wrote a lot about the threat to the environment of nuclear submarines decommissioned and rusting in the bays of the Russian Far East. His video recordings of ships of the Pacific Fleet dumping nuclear waste in the Sea of Japan found a special resonance. These tapes were shown by NHK, Japan’s broadcaster, which resulted in an international scandal. In October 2001, in the verdict of the Military Collegium of the Pacific Fleet, G Pasko was found guilty of high treason in the form of espionage in favour of Japan; he was deprived of his military rank and honours and sentenced to four years’ imprisonment.
Emergence of the environmental rights movement in the USSR
Formation of the ‘green’ movement in Ukraine was a protest campaign in memory of Chernobyl. In 1988, some scientists and writers asked Kiev Executive Committee to permit a rally in commemoration of Chernobyl on 24 April. They failed to obtain a permit, but a small demonstration took place nonetheless on 26 April, the anniversary of the disaster. In April 1989, 12,000 persons gathered together to remember this accident. These early rallies in honour of Chernobyl later led to protests against nuclear power plants in other regions. In October 1989, there were protests against the expected construction of NPPs in Bashkiria, Voronezh and Crimea. On 2 August 1990, the Supreme Council of Ukraine announced a five-year moratorium on commissioning or expanding nuclear power plants, which was actually lifted long before the expiry of five years.
Later the environmental movement only continued to grow year after year. Public environmental associations carried out various activities, from the protection of birds or springs to opposing the construction of NPPs. The methods of opposition were quite different, ranging from organisation of pickets and rallies to such kinds of human rights activities as representing persons affected by environmental violations in courts. Study of this relevant activity is beyond the scope of this article, but we should point out the following important fact.
A number of public environmental associations engaged in protecting the population against the impact of nuclear power were formed after Chernobyl in Russia. The Antinuclear Society of Tataria founded in 1987 is a typical example. One of its objectives is ‘counteraction to construction of nuclear power plants’. This institution organised the first rallies and protest marches in the USSR against the construction of nuclear power plants. Another notable example is the public movement ‘No NPP in Monakovo’ which opposes construction of the Nizhny Novgorod NPP on the assumption that construction and operation will result in risks of additional man-made impact on the environment.
Meanwhile, the most effective means of banning the construction of nuclear power plants, referendums, have almost no effect in Russia. According to Article 12 of the Federal Law of 12 June 2002, No 67-FZ ‘On Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum of Citizens of the Russian Federation’, issues under the jurisdiction of a subject of the Russian Federation or a local government authority may be put to a referendum on the subject of the Russian Federation or the local government respectively. Article 71 of the Constitution states that the federal power systems and nuclear energy are under the jurisdiction of the Russian Federation. Therefore, issues of nuclear energy are not under the jurisdiction of the subjects of the Russian Federation or the joint jurisdiction of the Russian Federation and the subjects of the Russian Federation. Consequently, no regional referendum on their construction may be conducted. It is impossible to hold a federal referendum on construction of a NPP in the provinces, due to the lack of political will and interest of the rest of the country. Hence, it follows that the accident in Chernobyl gave a powerful impetus to the development of environmental legislation in Russia and other countries of the former USSR, but the mechanisms of consideration of the opinion of the population are still not sufficiently effective and require improvement, including holding referendums.
Social effects of the accident
A few years after the accident and after the collapse of the USSR, Russia, Ukraine and other countries of the former USSR affected experienced intensive development of social legislation aimed at compensation for damage to the health of those affected by the accident and provision to them of additional medical and other benefits.
Benefits as such and the social legislation establishing them already existed in the USSR, and included benefits and payments for war veterans, disabled persons and pregnant women, among others. However, in the early 1990s this system was supplemented with a component fundamentally new due to its legal effect. As was mentioned by the Constitutional Court of Russia, the man-made accident at the Chernobyl NPP was extraordinary because its effects led to innumerable environmental and humanitarian losses. As a result, not only the right to a favourable environment, but also other constitutional rights of citizens were violated, among them rights associated with protection of life, health, dwellings and property, as well as the right to freedom of movement and choice of place to live and of residence, which were infringed so much that the harm caused turned out to be irreparable. This leads to a special relationship between citizens and the state, which is borne out in the fact that the state undertakes to compensate for such harm in relation to its scope and the number of victims that cannot be compensated in accordance with the procedure established by civil, administrative, criminal and other industry-specific legislation.
This meant that the Russian Federation, formally not involved in the accident in the territory of the neighbouring country (Ukraine), undertook to make payments to all its citizens affected by the environmental accident, because it is impossible for citizens to collect payments by civil law (judicial) procedure. This required a special and well-developed public legal mechanism of compensation in the social legislation.
To compensate for the harm caused not only in Russia, Ukraine and Belarus, but also in many other republics of the former USSR (Moldova, Kirghizia, Tajikistan, among others) special laws on compensation and provision of other benefits to persons exposed to radiation were adopted.
Public discussion in the press and adoption of these laws in Russia led to a dispute on application of this regime to citizens affected by other radiation accidents and disasters. As a result, along with the Law of 15 May 1991, No 1244-1 ‘On Social Protection of Citizens Exposed to Radiation as a Result of the Chernobyl Disaster’, the legislative body of Russia had to adopt the Federal Law of 26 November 1998, No 175-FZ ‘On Social Protection of Citizens of the Russian Federation Exposed to Radiation as a Result of the Accident in 1957 at the Production Association “Mayak” and Discharges of Radioactive Waste into the Techa River’, as well as the Federal Law of 10 January 2002, ‘On Social Guarantees for Citizens Exposed to Radiation as a Result of Nuclear Tests at the Semipalatinsk Test Site’.
However, soon after adoption of the law on compensation for persons affected by the Chernobyl accident it became clear that the state was not fulfilling its obligations and, in particular, financing was insufficient and irregular. For many years, there were failures in the medical support programme for these citizens. Because of limited funds, hospitals were not provided with medical equipment, apparatus, reagents, drugs or food. No funds were allocated for dispensary care, as a result of which late diagnosis of diseases led to premature deaths. Currently, the waiting list for housing includes several thousands of families of the disabled ‘liquidators’. The state failed to fulfil its obligations, which resulted in thousands of lawsuits against the state authorities of Russia. Though in most cases the courts, following the law, delivered judgments in favour of Chernobyl survivors, the state financial and other involved authorities long refused to execute them, referring to a lack of finance.
This situation gave rise to the extensive judicial practice in which the decisions of the European Court of Human Rights (ECtHR) on protection of the rights of the liquidators of the accident at the Chernobyl NPP are of the utmost interest. The case of Burdov v Russia (Application no 59498/00) considered by the ECtHR in 2002 is the best known. The facts of the matter were that AT Burdov was involved in the liquidation of the accident for four months and fell within the provisions of the Law of the Russian Federation of 15 May 1991, No 1244-1 ‘On Social Protection of Citizens Exposed to Radiation as a Result of the Disaster at the Chernobyl NPP’. In 1991, following an expert report which established a causal connection between the applicant’s deterioration in health and his involvement in the liquidation of the accident, the applicant was awarded compensation, which was not paid. Following the applicant’s claim of 3 March 1997, the Shakhty Town Court delivered judgment in favour of the plaintiff. The court awarded compensation to the applicant; however, this decision was not implemented because of the lack of adequate financing. Therefore, on 20 March 2000, AT Burdov filed a complaint with the ECtHR in accordance with Article 34 of the European Convention on Human Rights. The ECtHR found a violation and obliged the Russian Federation to pay compensation.
On 5 January 2009, the ECtHR issued a pilot judgment in the case of Burdov (No 2) v Russia, according to which, within six months from the date on which the judgment becomes final, Russia is to create ‘an effective intrastate legal remedy or a set of such remedies that would ensure adequate and sufficient restoration of violated rights in case of default or delays in execution of national court decisions in accordance with the principles of the Convention set out in the Court’s judgments’. Pursuant to this judgment, the Federal Law of 30 April 2010, No 68-FZ ‘On the Compensation for Violation of the Right to Trial within a Reasonable Term or the Right to Implementation of a Judicial Act within a Reasonable Term’ was adopted.
The judicial precedent thus established led to mass appeals by citizens affected by the Chernobyl accident to the ECtHR. The applications concerned not only non-fulfilment of many court decisions on compensation (the case of Gorokhov and Rusyayev v the Russian Federation (Application no 38305/02)), but also failure of the Russian authorities to provide apartments to the liquidators of the accident at the Chernobyl NPP (judgment of the ECtHR of 20 May 2010 in the case of Butenko and Others v the Russian Federation (Application nos 2109/07, 2112/07, 2113/07, 2116/07)). Mass appeals by citizens involved in the liquidation of the accident at the Chernobyl NPP to the ECtHR, on the one hand, again showed the indifference and neglect of the Russian state towards the people who sacrificed their health to reduce the adverse consequences of the accident caused by incompetence and mistakes of the officials, and, on the other hand, had a significant influence on the decisions of the Constitutional Court of Russia.
In particular, the Constitutional Court, considering in the Resolution of 19 June 2002 the constitutionality of statutory provisions on social protection of citizens exposed to radiation as a result of the Chernobyl disaster, cited the legal position of the ECtHR on compensation for harm caused by the disaster to the health of citizens expressed in its judgment of 7 May 2002 of the case of Burdov v Russia and established that the state is not entitled to refer to a lack of funds as the reason for non-payment of the debt according to the judgment.
In addition, the Constitutional Court referred to the issue of the rights of Chernobyl survivors in dozens of its other resolutions and decisions, which greatly contributed to the arrangement of conditions to address the issues of normal and effective exercise of the social rights of certain categories of persons in terms of pension provision, privileged allocation of residential premises, and targeted social assistance among others.
Similarly, Ukrainian citizens applied to the ECtHR with claims resulting from the Chernobyl accident. In the case of Naumenko v Ukraine (Application no 41984/98) the ECtHR ruled to compensate pain and suffering inflicted following the attempts of the authorities to deprive the applicant of the Chernobyl accident liquidator status. In the case of Khaynatskyy and Others v Ukraine (Application no 12895/08), the ECtHR in its judgment of 9 January 2014 obliged Ukraine to pay compensation to 250 citizens affected by the Chernobyl accident.
Political effects of the Chernobyl disaster and their impact on the collapse of the Soviet Union
The Chernobyl disaster was a terrible psychological trauma for the Soviet people. The reliable system for the protection of life and the health of citizens of the USSR, which was mentioned by the Soviet propaganda every day, suffered a colossal failure. As a result, for the first time the true extent of the problems of nuclear safety faced by the country was questioned. With the development of ‘glasnost’ (openness), the accident was presented as ‘a crime without punishment’ by journalists in a number of publications. The Kremlin and the communist authorities of Ukraine were considered the main perpetrators. In particular, well-known Ukrainian journalist Alla Yaroshinskaya believed that there were enough materials and evidence, including the report of the Office of the Prosecutor General of the USSR, to prove the guilt of the former party officials in concealing the truth about the Chernobyl disaster and its consequences for the countries of the former USSR and the world, to bring them to an international tribunal at the European Court of Human Rights. Besides the insufficient public awareness, she pointed out the drawbacks in the evacuation activities, hiding the strength of the true radiation doses received by the population and mentioned a number of other ‘scandalous facts’.
As official Soviet representatives in Europe and the US, as well as in the USSR, spoke little about the accident in public, information about it could only be obtained from European and American mass media. For more than two weeks after the accident the Soviet news from Chernobyl had a very optimistic tone, which affected the level of trust in the media.
The lack of official information about the level of radiation in the USSR also worked against the authorities themselves. Ordinary citizens and Western journalists had to obtain information from alternative sources, though not all of them were reliable and unbiased. The flow of unreliable information stopped only when the USSR began to arrange briefings and present information on events in Chernobyl to the IAEA.
As a result, the USSR totally lost the ‘informational confrontation’ battle in the coverage of the effects of the Chernobyl accident. The informational situation around Chernobyl became a powerful means of criticism of the USSR and its political order and thereby accelerated the fall of the communist regime. This was also facilitated by the fact that there was a slump in oil prices a few years before the accident at the Chernobyl NPP and the Soviet economy began to struggle economically. Inefficiency of the economy and government control in the USSR led to a recession in its agriculture, and the country began to undergo food difficulties. Empty shelves in shops and vouchers for food and some household products (for example, detergents) were observed by citizens of the Soviet Union in the context of the continuing dominance of the communist propaganda in all the media and the promises to solve all the complex social and economic problems as soon as possible due to the ‘advantages of socialism’.
As a result, the disaster at the Chernobyl NPP contributed to the development of civil society in Russia, Belarus and Ukraine, the emergence of political parties and movements that included environmental requirements in their programmes, and the formation of new areas of public discussion associated with expansion of political rights of citizens including the right to information. The level of the citizens’ confidence in the communist party ruling in the USSR dropped sharply after the accident, which, along with many other reasons, led to the collapse of the Soviet Union. It is beyond doubt that Chernobyl was not the primary cause of the collapse of the USSR; however, the history of overcoming its effects became a part of the history of the collapse of the Soviet Union.
‘Lessons of Chernobyl’ learned and not learned
We will identify some important lessons and conclusions to be drawn from the accident.
Following the invention of nuclear technology, construction of NPPs in advanced countries was vigorous. Worldwide, construction began on 161 new commercial reactors from 1961 to 1970, and 241 new reactors from 1971 to 1980. From the 1980s to the 2000s nuclear power plant construction declined. Construction began on only 87 new reactors from 1981 through 1990, 30 new reactors from 1991 through 2000 and 34 new reactors from 2001 through 2008. Two factors generally account for this decline. The first is the increasingly exorbitant costs of nuclear power plant construction. The problem is well illustrated by the construction of a nuclear power plant on Long Island, New York, which suffered huge cost overruns and was never licensed to operate. The second factor is public concern over nuclear power plant safety, which was greatly exacerbated by two serious reactor accidents, at Three Mile Island in Middletown, Pennsylvania and at Chernobyl, Ukraine. Over the past few years, in response to the Chernobyl accident, many central and eastern European nations have phased out some of their older, Soviet-era nuclear power plants, in several cases as a condition for joining the European Union.
Even EU countries and the US, still the leaders of ‘nuclear production’ of energy, are tending to suspend and even dismantle nuclear power plants, because the lifetime of any nuclear power plant is about 30 years; there is a problem of long-term environmentally friendly storage of radioactive waste; and the possibility of an accident. Experts believe that if the world community has more than 1,000 nuclear reactors, we should expect severe accidents every ten years. The trauma of Chernobyl means that open support for nuclear energy remains politically risky in many countries within the EU. This position is confirmed by public opinion polls in EU countries.
Although supporters of nuclear power emphasise that the reactor at Chernobyl was completely different from the reactors in US plants and, therefore, that the same sort of mass-damage accident could not occur in the US, opponents of nuclear power remain unconvinced. The new slogan ‘Chernobyl is everywhere’ became the mantra for the emerging anti-nuclear movement. A poll conducted in May 1986 found that 78 per cent of people opposed the building of more nuclear plants in the US.
However, discussions about the fate of NPPs are not over, despite the accident at the Chernobyl NPP or Fukushima-1 NPP. Though risks posed by NPPs are obvious, production of electricity at NPPs saves the environment as it avoids emissions of millions of tonnes of carbon dioxide into the atmosphere. Therefore, plans by Europe to reduce carbon dioxide emissions by 40 per cent without the use of NPPs by 2020 do not appear feasible, let alone the issue of considerably reducing dependence on Russian gas. Hence, it follows that the lesson of Chernobyl called ‘overcoming the psychological barriers to development of nuclear energy’ has been learned by mankind only partially; however, measures to improve the environmental safety of NPPs have been taken.
The emergence of the issue of environmental refugees was associated with resettlement of the population from the zone of the Chernobyl NPP immediately after the disaster. The term ‘environmental refugees’ was first coined in 1985 in official documents of the UNEP (the UN Environment Programme); one of its most successful definitions was put forward by E El-Hinnawi. He defines them as those people who have been forced to leave their traditional habitat, temporarily or permanently, because of a marked environmental disruption (natural and/or triggered by people) that jeopardised their existence and/or seriously affected the quality of their life. By ‘environmental disruption’ he meant any physical, chemical and/or biological changes in the ecosystem that render it temporarily or permanently unsuitable to support human life.
This definition covers the first mass environmental migration in the history of mankind, when first 49,614 persons were evacuated from the zone which came under radioactive contamination after the accident at the Chernobyl NPP, then 41,792 persons in Ukraine and 24,725 in Belarus (116,231 persons in total) from the 30km zone around the NPP six to 11 days later. Finally, in 1986-87, 70,483 persons in Ukraine, 78,600 in Russia and 110,275 in Belarus were evacuated from the territories with the contamination density over 15 Ci/km2. The total number of people forced to leave their homes because of the accident at the Chernobyl NPP and radiation contamination was more than 350,000.
It appears that, in order to guarantee the rights of environmental refugees, it is necessary to develop an international mechanism of rights protection which ensures the rights and freedoms of these displaced persons, as well as of the residents of their host countries. At the moment, the scientific doctrine includes various features of environmental refugees and their classifications. However, achievements of the above scientific doctrine are used little in international law. There is no common internationally recognised definition of environmental refugees as would be necessary for an effective regime for their protection.
The 1951 Refugee Convention, the fundamental international legal instrument in the field of regulation of the legal status of refugees and protection of their rights and freedoms, unfortunately, does not meet the realities of the modern day. The problem is that the states that signed this treaty precisely recognised the fact that any person who ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it’ may be recognised as a refugee.
Four main elements may be derived from this definition. First, a person is outside the country of his origin; secondly, he is unable to avail himself of the protection of his country or to return there; thirdly, such inability or unwillingness is attributed to a well-founded fear of persecution; fourthly, this fear of persecution is based on reasons of race, religion, nationality, membership of a particular social group or political opinion.
Hence, it follows that the above definition of ‘refugees’ excludes people who are outside their country of origin by reason of environmentally hazardous conditions caused by natural factors or human activity related to the environment. Keane assumes that, since the 1951 Convention did not initially include the concept of ‘environmental refugees’, it cannot be reasonably interpreted in our time to cover this category of persons.
In this regard, there are various proposals for development of legally binding international instruments on the status of environmental refugees in scientific literature. The first step here would be a regional agreement between the states with a high risk of emergence of refugees. Further, either an amendment to the 1951 Convention Relating to the Status of Refugees to include the concept of ‘environmental refugees’ or the development of a separate protocol to the United Nations Framework Convention on Climate Change establishing mechanisms for protection of the rights of environmental refugees would be possible. The proposal for development of a universal international instrument regulating various aspects of environmental migration is of no less interest. We believe that the most successful variant of legal regulation for the protection of the rights of environmental refugees could be the preparation of a special international treaty on guarantees of the rights of environmental refugees, which would take into account the complex environmental specifics of this phenomenon. Discussions of the wording of this international instrument could include the experience of Russia, Ukraine and Belarus in receiving environmental refugees from the area of the accident at the Chernobyl NPP. Within the framework of this treaty we propose to develop a classification of ‘ecological disaster zone’ created by national authorities in accordance with the criteria established by the treaty.
The emergence of territories in which accommodation poses a hazard to life and human health and other live organisms as a result of a man-made disaster or other causes requires not only settlement of social issues and arrangement of environmental migration. These areas also need a clear legal status as well as a detailed plan of measures for restoration of the destroyed ecological systems. This special status was developed by environmental legal science long ago in the countries of the post-Soviet space and is partially reflected in the legislation.
For example, according to Article 67 of the Law of the Republic of Belarus ‘On Environmental Protection’ of 17 July 2002, No 126-Z, certain areas of the territory of the Republic with irreversible changes to the environment as a result of economic or other activity jeopardising the life and health of citizens and leading to upsetting the natural balance, destruction of natural ecological systems, degradation of components of the natural environment are declared as ecological disaster zones by the President. In these zones operation of industrial and other facilities is temporarily suspended, construction, reconstruction and commissioning of new buildings and structures are prohibited; natural management is limited; measures for restoration of the environment are taken.
Article 65 of the Law of Ukraine ‘On the Protection of the Natural Environment’ of 25 June 1991, No 1264-XII stipulates a similar status of environmentally critical zones; however, there is no practice of creation of these zones in the post-Soviet space. In Russia neither the status of this special ecological zone (ecological disaster zone) nor a separate law establishing the procedure for rehabilitation of such an area has been adopted.
This issue is still subject to an in-depth theoretical study. However, it can be argued that ecological disaster zones are those parts of an area in which economic or other activities (accidents) lead to profound irreversible changes to the environment resulting in significant deterioration of the health of the population, disturbance of the natural balance, destruction of natural ecological systems, degradation of flora and fauna. There are a number of objective reasons hampering, both earlier and now, the process of declaring certain territories of the Russian Federation ecological disaster zones:
- lack of a federal law on ecological disaster zones containing clear legal regulation of the mechanism of creation of these zones and peculiarities of the legal status of these areas;
- areas of concern must be allegedly rehabilitated, first of all, with the use of funds of the federal budget, budgets of other levels, as well as funds of those directly responsible for the environmental degradation. However, representative bodies of all levels, and especially the State Duma of the Federal Assembly of the RussianFederation, do not tend to include in the budgets additional expenditures, which will be rather significant.
For these reasons, no area in Russia nowadays has the status of ecological disaster zone. The practice is to adopt programmes for restoration of certain polluted areas, as well as payment of social benefits to citizens affected by ecological disasters. For example, the Law of the Russian Federation of 15 May 1991, No 1244-1 ‘On Social Protection of Citizens Exposed to Radiation as a Result of the Chernobyl Disaster’ covers areas affected by the accident and damaged by radioactive contamination. Zones with a special legal status are distinguished in these areas, which leads to a number of legal consequences. For example, activities with a negative effect on the environment are restricted or prohibited; social benefits are granted to the affected persons according to administrative procedures (rather than by judicial means), etc. Thus, in fact (due to legal consequences), a part of the country affected by the accident at the Chernobyl NPP is an environmentally unfavourable (ecological disaster) zone; however, legally the status specified still in the Law of the RSFSR ‘On the Protection of the Natural Environment’ of 19 December 1991 (currently ineffective) did not apply to it. The most promising way to solve this complicated and tangled issue is to adopt a federal law on ecological disaster zones.
Extreme natural and anthropogenic rather than ecological disasters are sometimes understood as emergencies; these disasters relate to explosions of gas pipelines, trains, fires, earthquakes, droughts, etc, which are attended to with the participation of the Ministry of the Russian Federation for Civil Defence, Emergencies and Elimination of Consequences of Natural Disasters (EMERCOM). This activity is regulated by the Federal Law of 21 December 1994, No 68-FZ (as amended on 2 May 2015) ‘On Protection of Population and Territories from Emergency Situations of Natural and Anthropogenic Character’. It is necessary to clearly understand the similarity and the difference between emergency under the jurisdiction of EMERCOM and emergency resulting in formation of an ecological disaster zone.
The similarity between the mentioned emergencies consists in the fact that in both cases there is a loss of stability in natural areas which can be eliminated only by means of tough administrative measures that may result in restriction of citizens’ rights and freedoms (for example, in the field of land use). Moreover, both cases include adverse changes in the environment, namely, the result of impact of certain factors on ecosystems is the same. The differences between the mentioned emergencies consist in the peculiarities of the process which leads to this outcome.
First, the difference in time of emergency. Usually, emergencies of natural and anthropogenic character are caused by short-term catastrophes and natural disasters; environmental emergencies or ecological disasters are related to accumulation of environmental consequences, namely, sustained influence of anthropogenic factors. As with any rule, there are exceptions: the accident at the Chernobyl NPP.
Secondly, the difference in means of elimination of the consequences of emergencies. EMERCOM takes urgent actions for emergency recovery, while this is not enough for dealing with ecological disaster zones. It is necessary to fundamentally change the approaches to management of economic activities of companies and organisations of all forms of ownership in the region (municipality), which makes it possible to reduce the extent of adverse effects on the environment, to ensure conditions for protection of environmental rights of the population and to take measures aimed at gradual improvement of the environment. Consequently, terms for remediation of an environmentally unfavourable zone are comparable with the terms of its formation.
Thirdly, the difference in methods of management of emergency recovery. Recovery of emergencies of natural and anthropogenic character should include primarily administrative methods. Recovery of environmental emergencies should include not only administrative but also economic methods, as it is possible to overcome this type of emergency only by way of settlement of economic issues, including conversion of ‘environmentally unfriendly’ production facilities and elimination of environmental damage caused earlier.
Fourthly, the legal status of areas. Areas will be granted the status of ecological disaster zones by means of adoption of a regulatory legal act of a federal agency with establishment of limits and specific features of the legal regime on the basis of a state environmental expert report. Areas affected by emergencies of natural and anthropogenic character are not granted the special legal status.
Meanwhile, along with the issue of national legislation development, a separate task is to develop a classification of ecological disaster zone in international law, which will make it possible to ensure effective prevention of negative trends within the correspondent environmentally hazardous territories and to develop clear criteria of environmental threat, in the case of which citizens can move in the territory of their country or to another country having obtained the status of environmental refugees. Put simply, if, at the moment a national authority creates an ecological disaster zone (according to the criteria established by the international and intrastate rules of law), a certain citizen is within the boundaries of this ecological disaster zone (and he can give documentary evidence), on leaving this zone within the territory of his country, this person may claim benefits and compensations stipulated by the national legislation.
If a person leaves the country for a Member State of the international treaty the person may claim the status of environmental refugee. On the one hand, development of this international document could strengthen the guarantees of environmental human rights in the event of major ecological accidents and disasters, and, on the other hand, conclusion of this treaty by Russia, Belarus and Ukraine would make it possible to coordinate the efforts of all the three countries in the area affected by radiation, as well as optimise financial costs of restoration of the destroyed areas.
Considering the fact that ecological disaster zones and specially protected areas are two sides of the same coin (namely, areas with a ‘non-standard’ level of quality of the environment—either very good or very bad), we could use the experience in creation of specially protected natural areas by two or more bordering states. In particular, under the Agreement between the Government of the Russian Federation and the Government of the People’s Republic of China of 25 April 1996, the joint reserve, Lake Khanka, was created in the border regions of Russia and China, the territory of which includes wetland ecosystems.
Conclusion
The ecological disaster at the Chernobyl NPP has been a common ‘open wound’ for the peoples of Ukraine, Belarus and Russia as well as many other members of the international community for 30 years now. There are still questions about the causes and effects of the disaster and problems with the provision of medical aid and compensation to the citizens affected by the accident. Legal issues associated with development of the categories of ‘environmental refugees’ and ‘ecological disaster zone’ are still to be solved. However, it is quite obvious that the disaster united the world community, which provided substantial assistance to the Ukrainian state in the construction of the containment at the destroyed nuclear power plant. It also promoted generalisation of the experience in medical aid to the affected persons and development of social legislation. The Chernobyl disaster led to increased activity within the environmental rights movement and emergence of special procedures for prevention of accidents in energy facilities including nuclear power plants in all the laws of the republics of the former USSR.
The future of nuclear energy will become clear soon; it will either be manifested in the construction of new nuclear power plants or in the cessation of this construction and gradual shutdown of the operating nuclear power plants. Meanwhile, it appears that, despite learning the main lesson of the accident, which is that ignoring the safety rules must not be allowed, the accident at the Fukushima-1 NPP showed that mankind still has some work to do, and that not all the lessons of Chernobyl have been learned.