Nuclear Liability and Compensation Models after Chernobyl

Introduction

More than 30 years after the Chernobyl disaster, debates over radioactive contamination of land and human bodies are ongoing; in particular, debates regarding the question of how individual states and the international community should handle the disaster's legacy. The questions guiding this chapter emerged from discussions with nuclear professionals, lawyers, and social scientists in the aftermath of the Fukushima disaster, which, 25 years after Chernobyl, raised very similar issues: Who is, or should be, classified as a victim? What counts as damage? Who is responsible for compensation? These questions had been addressed before, in one way or another, but without having yielded “lessons learned,” let alone a set of consolidated guidelines. Too strong was the desire to brand Chernobyl as a “one-off,” something that would never happen again. This chapter tries to reconstruct where the post-Chernobyl debates came down on these questions and, more specifically, what model(s) were used to compensate victims.

The Soviet case is also a post-Soviet case, as the state in charge of the Soviet nuclear industry, including the Chernobyl nuclear power plant (NPP), ceased to exist in December 1991: five years after the worst nuclear accident at a commercial nuclear facility, multiple successor states inherited the disaster's legacy. This chapter, then, attempts more than simply to reconstruct “the Soviet response.” I have narrowed my analysis to the three Soviet successor states that were left with most of the contaminated territory, quantitatively and qualitatively, as well as most of the affected population. It is worth mentioning, though, that the Chernobyl mitigation work drew on professionals from the entire Soviet Union, and many “liquidators,” those who assisted in the emergency response operations on site, came from places across the vast Soviet lands.

Furthermore, in the process of creating compensation schemes for all of these liquidators, others who had suffered from radioactive fallout or had lived in contaminated territories also laid claim to nuclear victimhood. Different from the American, and to some extent Japanese, situations, Soviet and post-Soviet citizens rarely went to court—they relied on administrative settlement processes, even where distrust in the government was high. The post-Soviet period also witnessed a new wave of legal frameworks, both nationally and internationally, where Russia, Ukraine, and Belarus developed their own laws covering nuclear liability, and joined international conventions. All such frameworks typically cap financial responsibility, and carve out certain limitations of liability, e.g., in case of a natural disaster, war, or a terrorist attack.

It is not easy to find information on the legal status of nuclear installations during Soviet times, as this country no longer exists and most of its successor states have either joined international conventions or treaties, or otherwise adopted policies much more similar to US and/or European legal frameworks. I focus on Russia, Ukraine, and Belarus, which are the three states most severely affected by the fallout from Chernobyl, and the way these states modified or clarified policies taken during Soviet times and since the USSR disintegrated at the end of 1991. Among the sources I consulted are actual laws, international treaties and agreements, or references to them, as well as secondary resources in Russian- and English-language law journals.¹

In a nutshell, the compensation scheme implemented in the wake of the Chernobyl disaster in the Soviet Union fell back on compensation and social benefits frameworks well established in areas of civil law, such as social benefits for war veterans, low-income families, the elderly, disabled people, etc. The first comprehensive legal framework on Chernobyl was not articulated until 1991, and the law passed at that time has since been modified and updated multiple times to accommodate challenges to it, but also to reflect the fundamental changes affecting the political order and socio-economic situation in the successor states of the USSR. The first part of this chapter chronicles the main efforts to establish a legal framework for compensating individuals affected by the Chernobyl accident. The second part goes into some detail on definitions and differentiations that emerged as particularly problematic in the process of implementing the initial framework, as a result of challenges by both individual citizens and organizations, and of the Soviet Union's successor states trying to adopt or conform to existing international legislation on nuclear liability. In conclusion, I return to the fundamental questions this chapter seeks to address in the light of this history and definitional and practical challenges: who is a victim, what counts as damage, and who is responsible for compensation? As an appendix, I list the major decrees and laws discussed here.

Chronology of Legal Efforts to Deal with Chernobyl's Aftermath

When Chernobyl happened in April of 1986, the “method of compensating for radiation damage in the form of compensations and benefits for harm to property and health of the victims was not known to the acting legislature."² Alla Yaroshinksaya, an energetic politician and activist, writes that in 1986, “NOT A SINGLE legislative act existed in the USSR that could protect victims of possible nuclear accidents and incidents."³ One legal scholar concluded that, in fact, despite its military and peaceful nuclear programs, “the USSR was the only nuclear country in the world without its own laws regulating the use of nuclear energy and its safety,"⁴ in contrast to the US, France, or Britain. This may be the case as it relates to liability laws, but the nuclear industry did in fact develop its own internal safety regulations as early as 1957.⁵ Back then, they modeled regulations for the anticipated fleet of nuclear power plants on those already in force for conventional power plants. Nuclear industry regulations focused primarily on the construction and operation of nuclear power plants, whereas rules relating to guaranteeing the safety of the nuclear fuel cycle remained the task of a secret ministry, the Ministry of Medium Machine Building, which was also in charge of the Soviet nuclear weapons program.

The issue of harmonizing Soviet nuclear safety laws with international regulations was raised in the early 1970s and resulted in a regulatory document, OPB-73, in 1974.⁶ However, this document focused on design, construction, and operation of nuclear power plants, not on severe accident mitigation or compensation. The first independent nuclear oversight committee was created only in 1983, and even then Soviet nuclear safety regulation relied on oversight and supervision, not licensing and setting norms. After the Three Mile Island accident, Soviet specialists revised the initial nuclear safety document, and although the new legislative document OPB-82 was submitted in 1984, it was not approved, let alone implemented, in time to prevent Chernobyl. This meant that after the disaster, there was no legal basis on which affected individuals could demand legal settlement from the government.⁷ What did exist at the time of the Chernobyl disaster was legislation on social benefits and (financial and other) compensation, including “benefits and payments for war veterans, disabled persons and pregnant women, among others."⁸ These civil laws became the model for crafting a Chernobyl compensation legal framework.

1986-1991: Immediate Post-Chernobyl Legislation

The first legal action after the April 1986 disaster was the adoption of a joint decree of the Communist Party's Central Committee and the Council of Ministers of the USSR, which back then was the usual mechanism for government decision-making. The decree was adopted 12 days after the accident, on May 7, 1986, “On terms of payment and material provision of employees of enterprises and organizations in the Chernobyl nuclear power plant zone.” According to legal scholar Milan Zgersky, it became “the first document regulating the relations between the USSR government and the Chernobyl NPP."⁹ A number of other such joint decrees were issued, and to some extent implemented, in the years following the accident.¹⁰

By 1990, a year before the Soviet Union fell apart, three different, independent programs were put in place: a Ukrainian program, a Belarusian program, and one for a single region (Bryansk) in Russia.¹¹ These programs were based on two approaches to mitigate the consequences of the Chernobyl disaster: one focused on the decontamination of territories, the other on social protection, where the latter supplemented the former. Privileges and compensations were determined according to the levels of radioactive contamination in the territories. The amounts of compensations and premiums were based on different principles in the laws of Russia, Ukraine, and Belarus. In Russia, it was linked to the minimum wage, in Ukraine it was based on a person's base salary, and in Belarus it was a monthly premium based on a specific indexation. Other privileges and compensations were similar across the three states, with Ukraine establishing additional privileges and compensations for health care workers and educators.¹²

Only on April 25, 1990, four years after the accident, and at least in part as a consequence of public hearings about the accident, a Government Expert Commission elaborated, and the Supreme Soviet of the USSR adopted, the first Union-wide, comprehensive legal program on the “Liquidation of the Consequences of the Chernobyl Disaster."¹³ This program put the Soviet Council of Ministers in charge of drafting an actual “Law on the Chernobyl Catastrophe” by the end of the year 1990, in which the legal status of disaster victims was to be clearly defined (both participants in the mitigation work and evacuees), the legal status of the disaster area was to be determined, and all activities related to residence, activities, and state administrative bodies in the affected areas were to be regulated.¹⁴

It took until almost five years after the disaster, 1991, for the Soviet Union to finally adopt “fully adequate legislative acts regulating the responsibility of the government for the damage inflicted to the citizens as a result of the activities of a nuclear enterprise."¹⁵ These laws were:

• the Law of Belarusian SSR “On the Social Protection of Citizens Affected by the Catastrophe at the Chernobyl NPP” from 12 February 1991

• the Law of the Ukrainian SSR “On the Status and Social Protection of Citizens Affected by the Accident at the Chernobyl NPP”

• the Law of Russian Federation “On the Social Protection of Citizens Affected by Radiation as a Consequence of the Accident at the Chernobyl NPP” from 15 May 1991, and

• the Federal Law “On the Social Protection of Citizens who Suffered as a Consequence of the Chernobyl Catastrophe” from 12 May 1991.

Zgersky notes that these laws applied to the affected population and only indirectly addressed ecological problems: “However, in comparison to the legal vacuum that in fact existed during five years after Chernobyl, these laws were a significant step forward."¹⁶ These laws used the radiation dose with a threshold of average effective dose not to exceed 1 mSv (0.1 rem) per year, as well as residence in contaminated territories for defined periods, as the main criteria for deciding about protective measures, benefits, and compensation for damages to the population.¹⁷ The above-mentioned Federal Law from May 1991 featured the exact “system of social guarantees,” differentiating twelve categories of citizens entitled to compensation and benefits, and setting compensation rates. Yaroshinskaya writes, however, that the law was inefficient as compensation payments were concerned, and was modified for the first time in June 1992 and many more times since then.

The Chernobyl Law and the 1990s Economic Crisis: Post-Soviet Challenges to the Nuclear Legal Framework

The adoption of actual laws on compensation for people affected by the Chernobyl catastrophe coincided with a severe economic crisis in the former Soviet Union, and was followed by the disintegration of the entire political system of the region.¹⁸ This meant not only that compensation payments were delayed, irregular, or partial because the authorities had no funds from which to pay out compensation, but also that many of the benefits set up for the social and economic system of the Soviet Union (free public transport, assigned government housing, access to free quality health care, etc.) were either no longer available or had lost their value.

In addition to the economic recession, Yaroshinskaya points out severe problems with corruption. For example, the first attempt to collect money to assist Chernobyl victims, still in Soviet times, was the so-called Special Chernobyl Account #904, set up by the Soviet government. As it became known subsequently, the government embezzled the funds to fly in paid consultants who penned dubious reports about the radiological situation in the affected territories.¹⁹ Other instances of corruption involved the blatant misuse by local authorities of funds allocated to resettlement or decontamination work. Overall, with declining government investments, many of the planned projects were left unfinished, forcing some of the evacuated population to return to “dirty” territories for job opportunities.²⁰ As a result of these economic challenges and rampant corruption, the Chernobyl Laws were often left unclaimed, and “millions of people are suffering in the affected territories under conditions that protection measures for the environment are not carried out in necessary scales, and the ecosystems are not rehabilitated to the full extent."²¹

Apparently as a direct consequence of creating a legal framework for compensating nuclear disaster victims, public debate challenged how these laws applied only to those affected by Chernobyl. In the following years, the laws were amended to include victims of other incidences of fallout, most prominently the population near the nuclear test site at Semipalatinsk in Kazakhstan where the Soviet Union had conducted a large number of above- and below-ground nuclear weapons tests. The other prominent site that claimed the status of “affected population” under the Chernobyl laws were those living in the area of Cheliabinsk, in the Russian Urals. Home to the Soviet Union's most important plutonium manufacturing facility, as well as other facilities devoted to the most toxic parts of the nuclear fuel cycle (reprocessing, storage), this area had experienced massive radioactive contamination over the course of its history. For example, the first Soviet plutonium producing reactors there were cooled with water from the Techa river, and after passing through the core, that water had been released back into the river; radioactive waste had also been dumped in that same river, in most cases without informing the affected local population (historian Kate Brown has documented the largely unsuccessful resettlement and decontamination efforts there in her 2013 book Plutopia). In the period after Chernobyl, but before the disintegration of the Soviet Union, another serious accident that had been classified as secret at the time, came to light: in 1957, a nuclear waste storage facility near Cheliabinsk had exploded, showering the area with radioactive debris.²² The local population, at the time left ignorant, learned about the causes of their various illnesses during the early 1990s and successfully mounted a challenge to be considered as “individuals affected by nuclear accidents,” with grave consequences for the emerging post-Chernobyl legal framework.²³

At the same time as some tried to expand the Chernobyl legislation, others criticized it. The central point of criticism became the problem of dose evaluation, which the entire system was based upon: “how to evaluate delivered dose, as well as to determine the consequences, in consideration of peculiarities of release and migration of radionuclides, irradiation duration, dose rate, etc."²⁴ Zgersky argues that the original Chernobyl legislation relied on imperfect underlying dose estimates that neglected the following complicating factors:²⁵

• the radiation risk to the population may vary greatly

• calculating averages misses the wide variation in exposure, especially when based on infrequent monitoring²⁶

• the existing dosimetric and epidemiological data is insufficient to specify dose distribution, or biological effects, to name but a few factors

• humans vary in their sensitivity to radiation.

Similarly, and as will be discussed in more detail below, this “dose approach” replaced the “aerial [or territorial] approach,” both of which relied on ill-defined terms and concepts that did not take into account the complexity of how radioactive isotopes decay, move, and change properties depending on their location.

Given these problems with defining the scope of the population entitled to compensation under the new laws, it is not surprising that in the mid-1990s, members of the Russian parliament (the Duma) were trying to reduce the privileges for affected citizens, resulting in a struggle between the parliament and the President of the Russian Federation; the aforementioned definitional problems were at the core of this struggle, which ended without resolution. According to Zgersky, the struggle boiled down to the “question about the criteria that should be the basis to provide privileges to inhabitants living in the contaminated territories, the level of soil contamination or the value of irradiation dose."²⁷ Below, I briefly recount the original territorial organization of affected areas, and how this classification varied as early as 1991 and 1992 among the three republics most affected by fallout from the Chernobyl disaster. I've also tried to summarize these differences in a preliminary table that compares criteria and levels of contamination (Table 1).

Russia

In Russia, initially only one region around Bryansk was singled out as “affected” by Chernobyl-related radioactive contamination, though it became known only years after the accident that as many as 16 additional regions within the Russian Federation suffered from fallout-related ecological problems.²⁸ A government decree from December 25, 1992, “On the Regime of Territories Exposed to Radioactive Contamination in Consequence of the Accident at the Chernobyl NPP,” following a special article of the Law “On Social Protection of Citizens…” (from 15 May 1991), defined different zones and how they should be governed (the description below closely follows Zgersky's analysis).²⁹ In Russia, four zones were defined, with boundaries that could be revisited once every five years:

1. The restricted zone. This was the 30-kilometer zone around the NPP that authorities first set up in 1986-1987, which was later referred to as the evacuation zone from 1988 until the adoption of the 1991 Law. The population was evacuated from these territories in 1986 and in subsequent years.

2. The resettlement zone. This was the part of the territory of the Russian Federation outside the restricted zone (Table 1), which was also evacuated. It was defined based on soil contamination density by caesium-137, strontium-90, plutonium-239 or plutonium-240 (for threshold values please refer to Table 1).

3. The residence zone with the right for resettlement. This zone, outside the restricted and the resettlement zones, was also determined based on the density of soil contamination with long-lived radionuclides (below the limits set for the resettlement zone).

4. The residence zone with privileged socio-economic status. Not subject to evacuation or resettlement, people living in this part of the territory of the Russian Federation were considered entitled to special benefits as a result of measurable radioactive soil contamination density.

UKRAINE

The legal status of contaminated territories in the Ukraine followed a similar model as in Russia, dividing them into zones:³⁰

1. The restricted zone. The area from which residents were evacuated in 1986.

2. The zone of mandatory resettlement. This was a territory intensely contaminated with long-lived radionuclides, and—here is one difference with the Russian system—where the individual effective equivalent radiation dose was calculated as being 0.5 rem/year (or 5 mSv/year) higher than the pre-accident dose.

3. The zone of guaranteed voluntary resettlement. Individuals living in this zone were entitled, but not forced, to resettle; again, the demarcation follows soil contamination density and a calculated individual effective equivalent radiation dose of 0.1 rem/year (or 1 mSv/year) above the pre-accident dose.

4. The zone of intensified radio-ecological control. This was a territory delineated by soil contamination density and a calculated individual effective equivalent radiation dose of 0.05 rem/year (or 0.5 mSv/year) in excess of the pre-accident dose. People living in this zone were not subject to evacuation or mandatory resettlement, but to increased dose monitoring.

It is important to note that Ukraine declared independence in 1991, and defining territories and populations affected by Chernobyl became a crucial part of defining the new nation state. This process allowed Ukrainian leaders to castigate Soviet mismanagement of safety in the nuclear industry, and to demonstrate a responsive, responsible Ukrainian government assisting those affected by the catastrophe.³¹ “Ukraine has used the legacy of Chernobyl as a means of signaling its domestic and international legitimacy and staking territorial claims. … Ukraine's response to the Chernobyl legacy is unique in that it combines humanism with strategies of governance and state building, market strategies with forms of economic and political corruption."³² As a consequence, Ukraine's social welfare system expanded in the years following independence, which ran counter to Western prescriptions for a smooth transition to market economics.³³

Belarus

The Republic of Belarus, after declaring independence in August of 1991, adopted its own special law, “On the Legal Regime of Territories Exposed to Radioactive Contamination as a Consequence of the Catastrophe at the Chernobyl NPP,” on November 12, 1991. The law was intended to ameliorate the impact of radioactive contamination on the population and ecosystems, by instituting measures to recover and protect the environment. As in Russia and Ukraine, the law regulates the regime of residence, as well as economic and scientific activities in these territories. Zgersky notes that the division into zones in Belarus differs from Ukraine and Russia, and is based fundamentally on the damage inflicted by radiation on the public.

1. Zone of evacuation (restricted zone). This is the territory around the Chernobyl NPP, from which the population was evacuated in 1986, the 30-kilometer zone around the plant and additional lands contaminated by strontium-90 (exceeding 3 Ci/km²) and plutonium-238, 239, 240, and 241 exceeding 0.1 Ci/km². It is notable that these values are significantly higher than in Russia or Ukraine.

2. First priority resettlement zone. This is territory with extreme soil contamination density that neither Russia nor Ukraine had to consider.³⁴ The fact that this zone is not labeled a “mandatory evacuation zone” or similar indicates not only what later became clear, namely the inability of the state to live up to its compensation promises, but also a tendency in Belarus specifically to downplay and even deny radioactive contamination effects on its territory and population.³⁵

3. Zone of subsequent resettlement. This is a territory with a soil contamination density similar to the “mandatory resettlement” zone in Ukraine and the “resettlement zone” in Russia, but based primarily on average individual effective doses of 0.5 rem/year (5 mSv/year) or higher—even where soil contamination levels were lower.

4. Zone with the right for resettlement. This is all territory where the average individual effective equivalent dose exceeds 0.1 rem/year (or 1 mSv), with or without radioactive soil contamination.

5. Zone of residence with recurring radiation control. All territories where the average individual effective equivalent dose may not exceed 0.1 rem/year (or 1 mSv/year), with or without radioactive soil contamination.

Petryna notes that although 23% of the territory of Belarus was considered contaminated as a result of Chernobyl, the Belarusian government “has tended to suppress or ignore scientific research; it downplays the extent of the disaster and fails to provide enough funds for the medical surveillance of nearly two million people who live in contaminated areas."³⁶

Table 1: Comparative Chart of Categories Used to Determine Affected “Zones”

Russia	Ukraine	Belarus
Restricted zone (also called evacuation zone) where population has been evacuated from according to the norms of radiation safety in 1986 and in subsequent years	Restricted zone (evacuated in 1986)	Zone of evacuation (restricted zone) Soil contamination of Sr-90 >3 Ci/km2 and Pu-238, 239, 240, 241 >0.1 Ci/km2
		First priority resettlement zone Soil contamination of Cs-137 > 40 Ci/km2, Sr-90 >3 Ci/km2, or Pu-238, 239, 240, 241 >0.1 Ci/km2
Resettlement zone (outside restricted zone) Soil contamination of Cs-137 >15 Ci/km2, or Sr-90 >3 Ci/km2, or Pu-239, 240 >0.1 Ci/km2	Zone of obligatory resettlement Soil contamination of Cs >15 Ci/km2 or Sr >3 Ci/km2 or Pu >0.1 Ci/km2 and higher AND Individual effective dose >0.5rem/yr greater than pre-accident dose	Subsequent resettlement zone Soil contamination of Cs-137 15-40 Ci/km2, or Sr-90 0-3 Ci/km2, or Pu-238, 239,240, 241 0.05-0.1 Ci/km2 AND/OR Individual effective dose >0.5 rem/yr
Residence zone with right for resettlement Soil contamination of Cs-137 5 to 15 Ci/km2 and other long-lived radionuclide contamination	Zone of voluntary resettlement Soil contamination of Cs 5 to 15 Ci/km2, or Sr 0.15 to 3 Ci/km2, or Pu 0.0.1 to 0.1 Ci/km2 AND Individual effective dose >0.1 rem/yr greater than pre-accident dose	Zone with right for resettlement Individual effective dose >0.1 rem/yr AND/OR Soil contamination of Cs-137 5-15 Ci/km2, or Sr-90 0.5-2 Ci/km2, or Pu-238, 239, 240, 241 0.02-0.05 Ci/km2
Residence zone with privileged social-economic status Soil contamination of Cs-137 from 1 to 5 Ci/km2	Zone of intensified radio-ecological control Soil contamination of Cs 1 to 5 Ci/km2, or Sr 0.02 to 0.15 Ci/km2, or Pu 0.005 to 0.01 Ci/km2 AND Individual effective dose >0.05 rem/yr greater than pre-accident dose	Zone of residence with recurring radiation control Individual effective dose may not exceed 0.1 rem/yr AND/OR Soil contamination of Cs-137 1-5 Ci/km2, or Sr-90 0.15-0.5 Ci/km2, or Pu-238, 239, 240, 241 0.01-0.02 Ci/km2

Post-Soviet Developments: Harmonizing with International Nuclear Liability Laws

The Soviet Union did not pay any compensation for trans-border loss or harm caused by the Chernobyl accident, nor did any of its successor states, which it justified with the fact that the Soviet Union had not been party to any international convention that would have held it responsible.³⁷ This was also the conclusion reached by European countries and their legal advisors when it came to deciding whether or not to demand state level compensation from the Soviet Union for the contamination of territories beyond the boundaries of the USSR.

Anisimov and Ryzhenkov point out that environmental law and human rights legislation developed only gradually in the post-Soviet space. They argue that while environmental laws did exist in the Soviet Union, “they were either declarative…or referred to the protection of certain [specific] natural resources (land, water, forests, etc.) and complexes (reserves, natural monuments, etc.)"³⁸ Given the complex relationship between contaminated territories and affected populations, the authors propose an interesting connection between environmental liability and human rights, invoking “environmental refugees,” a term coined in 1985 (prior to Chernobyl), as a possible label for those forced to resettle as a result of the Chernobyl disaster, a point I will return to in the conclusion.

The abovementioned difficulties of post-Soviet states to effectively compensate citizens affected by Chernobyl—including the financial crisis, corruption, and the overall decline of organized governance in the disintegrating Soviet Union, came to a head in 2000. One citizen, A. T. Burdov, filed a complaint with the European Court of Human Rights (ECtHR) “in accordance with Article 34 of the European Convention on Human Rights."³⁹ The ECtHR issued a pilot judgment of Burdov (No. 2) v Russia in 2009, effectively requiring the Russian Federation to adopt a legal remedy, which was created in 2010. “The judicial precedence thus established led to mass appeals by citizens affected by the Chernobyl accident to the ECtHR."⁴⁰ The matters concerned compensation payments, the privileged allocation of residential premises, pension provision, targeted social assistance etc.

Also at least indirectly as a consequence of the ECtHR ruling, the Russian Constitutional Court in 2002 established that “the state is not entitled to refer to a lack of funds as the reason for non-payment of the debt."⁴¹ Of course, it is also safe to assume that this did not change the reality of citizens not receiving their full compensation payments on time, or on a regular basis.

Definitions and Differentiations

The emerging legal frameworks in the post-Soviet space considered two kinds of measures: territorial decontamination and rehabilitation on the one hand, and social benefits such as access to “clean " food, new living space, public transport, health care, scholarships etc., and compensation for harm to health and/or loss of income on the other.⁴² In addition to public works projects to construct new housing and infrastructure such as hospitals, schools, and nurseries, a “National Radiation and Epidemiological Registry” and the “Russian Medico-Dosimetric Registry” with regional branches were set up to contain “information on more than 600,000 people."⁴³ While none of these measures were expected to last longer than a few years, the authorities soon found that the changes in both the radiation and the socio-economic situation necessitated continued “modifications and additions to the existing normative and legal basis” even beyond the year 2000.⁴⁴

Because the Soviet state owned the Chernobyl nuclear plant, it was considered “the cause of the harm” and the Chernobyl legislation would go on to feature a number of similarities to existing laws meant to care for citizens:

The State as the constitutional guarantor and owner of the nuclear power plant, and not the perpetrator of the damage, is responsible for the radiation damage done. The method of compensating for the radiation damage in the form of compensations and benefits for damage done, the [Chernobyl] law provides guarantees and benefits according to labor law, social security, tenancy and tax law, protection of health and environment and other measures required for the victims to lead a normal life.⁴⁵

The norms of the social security law were designed to help the elderly, the disabled, households who had lost the main breadwinner, the unemployed, families with children, and individuals with income below the poverty line, and provided free medical care, free social services, and some other privileges, including educational benefits for children. Both the Chernobyl legislation and the social security law similarly concern somewhat “incapacitated citizens,” are mandatory, feature similar periods of validity, and share certain procedural relations. In summary, “[t]he legal relations between the victims and the State according to the law are similar to the alimentary character of the social security norms, and the government is responsible for providing the appropriate benefits and compensations."⁴⁶

The sources of the compensation are “special means provided in the federal budget, along with medical insurance and pension funds,” as well as workers’ compensation funds—all of which have been stretched thin in the years since the disaster.⁴⁷ Important differences between the Chernobyl law and social security law include that Chernobyl compensation is also paid to healthy people who are not incapacitated but who had to evacuate as a result of the accident. These individuals obtain “benefits and compensation for actual or possible harm to their health."⁴⁸

As can be seen from the establishment of evacuation zones, the “aerial [territorial] approach” dominated early Chernobyl legislation. And yet, it soon became clear that this approach could not adequately handle individual exposure to radiation, in part because the soil contamination was not the only factor determining effective dose. Gerasimova writes, for example, that in 1996, the threshold for intervention was set at extra exposure dose above 1 mSv/yr, but that this threshold was actually in conflict with the earlier law from 1991, which took surface contamination with cesium 137 as the criterion to decide about mandatory implementation of rehabilitation measures.⁴⁹ These conflicting concepts constitute “a serious obstacle for completing the elimination of accidents consequences in the territories of the greater part of contaminated regions."⁵⁰ Furthermore, both approaches, the aerial and the dose approach, required constant, comprehensive, and reliable monitoring, which was nearly impossible given the lack of infrastructure and personnel, and due to the difficulty of tracking the transient population of those subject to resettlement. Indeed, people rarely stayed where they were resettled to, especially given the challenges of finding jobs in their new environments.

Conclusion

This chapter has touched on the many nuances of nuclear liability that have come to light in the post-Chernobyl period. The disaster's occurrence at a time of extraordinary economic, political, and social turmoil contributed to the confusion of the legal framework that may have worked out very differently had, for example, the Soviet system persisted longer. Many of the benefits, privileges, and compensation alike might have been enough in a system with full employment, state-owned housing, state-run medical and educational systems, and a controlled currency. The simultaneous transition to separate nation states, a market economy, and a democratic political system made many of the benefits originally granted to “affected citizens” irrelevant or useless; the economic crisis caused states to cut expensive resettlement projects, decontamination and recovery activities, and medical as well as territorial monitoring for radiation.

As a consequence, the one factor already hardest to quantify in the process, that of socio-psychological trauma, was probably amplified and exacerbated in the process. Gerasimova wrote in 2002 that the socio-psychological factor was “characteristic of any extreme situation. It should be noted that in the case of radiation accidents the unfavorable psychological effect was severely aggravated by insufficient and sometimes distorted information on [the] actual radiation situation and possible radiation impact upon human health."⁵¹ The newly uncensored press in the post-Chernobyl period, with its myriad voices, cannot but have confused Soviet citizens who for over 70 years were used to one version of the news, however doubtful and tainted. Coupled with the invisibility of radiation and the elusive character of epidemiological causation, the psychological side of this disaster and its traumatizing effect on generations of newly independent, formerly Soviet, citizens, is completely missing from the literature and, at least so far, from the legal stage.

Several legal authors consulted for this report took the compensation paid out after Fukushima as a watershed moment to conclude that “the economic losses as a result of a nuclear incident may be not only huge, but extraordinary."⁵² Kozheurov concludes that the sums paid out by the Japanese government and TEPCO as compensation for an accident that, at least officially, had only 1/6 of the radioactive emissions of Chernobyl demonstrate that the amounts currently set aside for severe accident compensation—not mitigation, just compensation—“are clearly insufficient."⁵³ As a consequence, if the extent of nuclear harm may amount to several times the sums established in the Vienna Convention, the main burden for compensation (and mitigation) will rest on the state, regardless of who owns a nuclear power plant.⁵⁴

Returning to the initial question of what compensation scheme the Soviet government modeled its post-Soviet nuclear liability framework on, we can see that any post-Chernobyl compensation was based on privileged access to a state-controlled system of housing, medical care, education, transportation, and other social services, similar in most ways to existing social security law. However, the overall framework for this system collapsed at the same historical moment as the Soviet state finally articulated a legal framework for post-Chernobyl nuclear compensation.

Furthermore, the criteria established to determine who counted as “affected” by the consequences of Chernobyl proved to be preliminary, changing, and contestable, both within and beyond the Soviet Union's socio-economic framework. Aerial monitoring of territorial contamination levels required tools, labor, and scientific expenditure that existed perhaps only on paper, and that was even more true for monitoring dose rates and systematically cataloguing health effects. The initial attempts to cover up the disaster and to falsify records crippled many later efforts to calculate averages, which in turn turned out to be problematic. Tensions and contradictions between laws such as the above-mentioned territorial versus dose criteria were no doubt used to justify inaction, but they also ironically made it possible for affected citizens to plead (literally) refugee status in the ECtHR.

In this context, Anisimov and Ryzhenkov propose an update of the 1951 Refugee Convention and wish to expand it to “ecological disaster zones” that so far lack a clear legal status, not to mention “a detailed plan of measures for restoration of the destroyed ecological systems."⁵⁵ They argue that a nuclear disaster exceeds the authority of disaster response authorities (e.g., the Russian Ministry for Extreme Events, EMERCOM) and that territories affected by radioactive contamination should be legally treated as “ecological disaster zones” with uninhabitable environments that transcend EMERCOM's responsibility and capability, and that produce “environmental refugees."⁵⁶

To conclude, evidence from the Chernobyl nuclear catastrophe suggests that nuclear liability is at best an emerging area, and that the financial resources set aside to assist a population in case of a severe nuclear accident is likely to be a drop in the ocean in terms of what will be needed to reliably scrutinize and remedy territorial contamination, and to monitor and ameliorate health effects. This raises disconcerting questions about the economic feasibility of nuclear energy. Ultimately, a “one-size-fits-all” legal framework for compensation in case of a severe nuclear accident may run the risk not only of justifying an industry too expensive to operate, but also of setting parameters too rigid to allow for the uncertainties of what is known, how it is known, and how it can possibly be governed, both within individual states and across borders.

---

List of Major Decrees and Laws

USSR

Law of the Russian Federation from 15 May 1991, No. 1244-I, “On the Social Protection of Citizens Affected by Radiation as a Consequence of the Catastrophe at the Chernobyl Nuclear Power Plant” (Закон РФ от 15 мая 1991 г. N 1244-I “О социальной защите граждан, подвергшихся воздействию радиации вследствие катастрофы на Чернобыльской АЭС”).

Government Decree from 25 December 1992, “On the Governance of Territories Exposed to Radioactive Contamination as a Consequence of the Accident at the Chernobyl NPP.”

Ukraine

Law of Ukraine from 19 December 1991, No. 2001-12, “On the Status and Social Protection of Citizens who Suffered as a Result of the Chernobyl Catastrophe” (Закон Украины “О статусе и социальной защите граждан, пострадавших в результате чернобыльской катастрофы”).

Kazakhstan

Law of the Republic of Kazakhstan from 18 December 1992, No. 1787-XII, “On the Social Protection of Citizens who Suffered as a Result of the nuclear tests at the Semipalatinsk Nuclear Testing Site” (“Закон Республики Казахстан “О социальной защите граждан, пострадавших вследствие ядерных испытаний на Семипалатинском испытательном ядерном полигоне”).

Belarus

Law of the Belorusian Republic from 22 February 1991, No. 635-XII, “On the Social Protection of Citizens who Suffered from the Catastrophe at the Chernobyl Nuclear Power Plant” (Закон Республики Белорусь “О социальной защите граждан, пострадавших от катастрофы на Чернобыльской АЭС”).

Russia

Law of the Russian Federation from 12 July 1995, “On the Social Protection of Citizens Affected by Radiation as a Consequence of the Catastrophe at the Chernobyl Nuclear Power Plant” (Закон РФ “О социальной защите граждан, подвергшихся воздействию радиации вследствие катастрофы на Чернобыльской АЭС”).

---

---

1. I also interviewed a Ukrainian civil servant who used to work in the nuclear industry and later transferred into the Ukrainian government apparatus, and who was involved with Chernobyl compensation issues both personally and from a policy-maker's standpoint, to correct and clarify my conclusions. ↩︎

2. Bychkova 1999, 526 Bychkova even claims that as late as 1999, despite the programs since designed to assist victims of the disaster, “there are no laws in current legislation that regulate the responsibility for injury caused by a nuclear accident.” ↩︎

3. Emphasis in original. Yaroshinskaya 1998, 257 ↩︎

4. Zgersky 1998, 266 ↩︎

5. Schmid 2015, 43 ↩︎

6. Anisimov, Pavlovich, and Ryzhenkov 2016, 270 ↩︎

7. Zgersky 1998, 266 ↩︎

8. Anisimov, Pavlovich, and Ryzhenkov 2016, 274 ↩︎

9. Zgersky 1998, 266 ↩︎

10. Yaroshinskaya 1998, 266 Yaroshinskaya claims that these decrees were secret, but at least general versions (possibly lacking some details) were in fact published at the time. ↩︎

11. Yaroshinskaya 1998; Zgersky 1998 These laws were for the social-economic protection of the citizens of Russia (“On Social Protection of Citizens Affected by Radiation in Consequence of the Accident at the Chernobyl NPP”), of the Ukraine (“On Status and Social Protection of Citizens Affected by the Accident at the Chernobyl NPP”), and of Belarus (“On Social Protection of Citizens Affected by the Catastrophe at the Chernobyl NPP”). ↩︎

12. Zgersky 1998, 269 Zgersky notes that the amounts of compensations and premiums suggests that Russia put more emphasis on resettlement than Ukraine and Belarus. ↩︎

13. Yaroshinskaya 1998, 258; Zgersky 1998, 266 The “Supreme Soviet” was the highest legislative authority in the USSR. ↩︎

14. Zgersky 1998, 266-7 ↩︎

15. Zgersky 1998, 267 ↩︎

16. Zgersky 1998, 267 ↩︎

17. Yaroshinskaya 1998, 258 ↩︎

18. Anisimov, Pavlovich, and Ryzhenkov 2016, 275; Yaroshinskaya 1998, 260 ↩︎

19. Yaroshinskaya 1998, 262 ↩︎

20. Gerasimova 2002, 262 Gerasimova states that between 1992 and 1999, Russia spent the equivalent of two billion USD on various programs related to the Chernobyl disaster. ↩︎

21. Zgersky 1998, 270 ↩︎

22. Anisimov, Pavlovich, and Ryzhenkov 2016, 275; Gerasimova 2002, 108 ↩︎

23. Zgersky 1998, 270 According to Zgersky, this “trend to spread the ‘Chernobyl law’ onto other regions of Russia that have been affected by radiation impacts” is problematic because “a direct application of the articles of the ‘Chernobyl Law’ for these situations is inadmissible.” ↩︎

24. Zgersky 1998, 269 ↩︎

25. Zgersky 1998, 269-70 ↩︎

26. For more on the lack of, and underfunding of monitoring, see Kuchinskaya 2014 Olga Kuchinskaya, The Politics of Invisibility: Public Knowledge about Radiation Health Effects after Chernobyl (Cambridge, MA: MIT Press, 2014). ↩︎

27. Zgersky 1998, 270 ↩︎

28. Zgersky 1998, 268 ↩︎

29. Zgersky 1998, 268-9 ↩︎

30. Zgersky 1998, 267 ↩︎

31. Petryna 2013, 5 Petryna writes in 2002 that the Ukrainian citizens “legally designated as poterpili (sufferers) number 3.5 million and constitute a full 5 percent of the Ukrainian population” (4). ↩︎

32. Petryna 2013, 5 I don't have comparable evidence on Russia or Belarus, but Petryna writes that the compensation payments for Chernobyl victims in Ukraine are financed by a new state-wide 12% Chernobyl tax. ↩︎

33. Petryna 2013, 25 ↩︎

34. I literally flagged these levels as a typos initially, they were so high. ↩︎

35. Petryna 2013, 5 ↩︎

36. Petryna 2013, 5 For more details on scientific research into the Chernobyl disaster in Belarus, and the ongoing efforts by the government to silence it, see Kuchinskaya 2014 ↩︎

37. Kozheurov 2014, 100 ↩︎

38. Anisimov, Pavlovich, and Ryzhenkov 2016, 270 ↩︎

39. Anisimov, Pavlovich, and Ryzhenkov 2016, 275, citing ECtHR from 5/7/2002 “Burdov v. Russia” [complaint No. 59498/00]). ↩︎

40. Anisimov, Pavlovich, and Ryzhenkov 2016, 276 ↩︎

41. Anisimov, Pavlovich, and Ryzhenkov 2016, 276 ↩︎

42. Some of the sources I consulted elaborate distinctions between “liability” and (various shades of) responsibility (absolute, objective, etc.), as well as industrial activities characterized as “toxic” or “noxious” (i.e., dangerous per se) as opposed to “hazardous” (which include danger only when operated beyond design parameters). I refer the legally competent readers to the references section. ↩︎

43. Gerasimova 2002, 109 ↩︎

44. Gerasimova 2002, 110 ↩︎

45. Bychkova 1999, 528 ↩︎

46. Bychkova 1999, 527 ↩︎

47. Bychkova 1999, 527 ↩︎

48. Bychkova 1999, 528 ↩︎

49. Gerasimova 2002 ↩︎

50. Gerasimova 2002, 111 I'm not entirely clear how exactly this affects the implementation of these laws. Presumably people living in contaminated territories can be assumed to have received effective doses of over 1 mSv/year, although the reverse is not necessarily true (people having received an excess dose may live in territories more or less contaminated by long-lived radionuclides). In practice, I suspect, the issue was more mundane: bureaucrats inferred one law to block the implementation of the other. ↩︎

51. Gerasimova 2002, 110 ↩︎

52. Khlestova 2015, 129, my translation. ↩︎

53. Kozheurov 2014, 103-4 ↩︎

54. Kozheurov 2014, 139 ↩︎

55. Anisimov, Pavlovich, and Ryzhenkov 2016, 280 ↩︎

56. Anisimov, Pavlovich, and Ryzhenkov 2016, 282 ↩︎