An “insignificant risk”? French Court grants compensation to some victims of nuclear testing

[Maya Brehm, Member of the scientific committee of SAFNA]

Last Tuesday (13 January 2015), the Bordeaux administrative court of appeals recognized the right to compensation of nine victims of French nuclear weapons tests. The court rejected eight other claims for compensation.

The legal basis for these claims is the ‘Loi Morin’ of 5 January 2008. The law provides for an administrative procedure by which victims of French nuclear weapon tests can submit claims for compensation to a committee, the Comité d’indemnisation des victimes des essais nucléaire (CIVEN). The committee analyses the claim and recommends to the Minister of Defence whether to accept or reject it. The Minister’s decision can be appealed in a court of law.

Pursuant to the loi Morin, persons – military or civilian – who can prove that they had been present at a French nuclear weapon test site at a time when tests were carried out, and who are suffering from one of 18 radiation-induced illnesses [for the document in pdf, click here] benefit from a presumption that they are victims of French nuclear tests. This presumption can only be reversed if the Committee can prove that the exposure to ionising radiation in a specific case bore only a insignificant risk of causing the illness in question.

What constitutes an insignificant risk and how this is to be established has, thus, become the key point of contention in many cases. M. F., for instance, was an officer at the Centre d’expérimentation du Pacifique between 16 February 1968 and 24 August 1970. During that time, France carried out thirteen nuclear tests in the area. M.F. was diagnosed with kidney cancer in 1999. The CIVEN found that the likelihood that the nuclear tests were the cause of that cancer were negligible and recommended that the claim be rejected. In this case, the Bordeaux court on Tuesday decided to grant compensation, upholding an earlier decision of the Bordeaux administrative tribunal. In the Court’s view, the CIVEN had failed to prove that in this case the risk of developing kidney cancer was negligible, mainly because the State had not adequately monitored the risk of internal contamination to which the officer may have been exposed. The Court ordered the state to pay 1’000 Euros to the relatives of the victim. M. F. had died on 11 February 2012.

The French compensation program has been criticised for being largely ineffective. An estimated 150’000 persons potentially qualify as ‘victims’ under the law, but the CIVEN has reportedly granted only 17 of 931 claims received by December 2014.

Moreover, many victims do not consider that this form of ‘indémnisation’ constitutes recognition on the part of the state of the grave harm caused. As one French survivor put it: “L’indemnisation n’est pas le seul but, on veut la reconnaissance: beaucoup sont déjà morts dans l’oubli total.” (see here). 

France is not the only nuclear-armed state that has been reluctant to recognise the environmental and health effects of nuclear testing and its responsibilities to victims. Dedicated national laws (if they exist) may define potential beneficiaries narrowly and exclude entire victim categories, with discriminatory effect. There may be statutes of limitations and claimants may face important practical difficulties in establishing the required causal link between nuclear testing and long-term health effects. Many survivors, their families and communities, thus, still face important legal barriers to receiving compensation, let alone adequate reparation, i.e. recognition of wrongdoing on the part of the state and redress for the violation of victims’ rights.

An approach to nuclear disarmament that focuses on the humanitarian consequences of nuclear weapons also bringst the lived experiences of survivors to bear on the policy making process (source). At the Vienna Conference on the Humanitarian Impact of Nuclear Weapons (8-9 December 2014), the contributions by Hibakusha, survivors of the nuclear attacks on Hiroshima and Nagasaki, and victims of the effects of nuclear testing, ‘exemplified the unspeakable suffering caused to ordinary civilians by nuclear weapons’. (Chair’s summary).

In light of these presentations, the Austrian government came to the ‘inescapable conclusion’ that victims of nuclear weapons explosions and nuclear testing have experienced ‘unacceptable harm’ and that ‘the rights and needs of victims have not yet been adequately addressed’. (The Austrian Pledge). Austria committed to pursue effective measures ‘to fill the legal gap for the prohibition and elimination of nuclear weapons’.

The negotiation of an international treaty that comprehensively and unambiguously outlaws the testing, use and other activities involving nuclear weapons would make the plight of victims of all nuclear explosions more visible. Such a treaty should promote recognition of victims’ rights, including their right to adequate reparation, and include provisions on the duty to provide assistance to victims, survivors and their communities as, for instance, in the treaty banning cluster munitions. After all, the Comprehensive Nuclear Test Ban Treaty, Comprehensive Nuclear Test Ban Treaty, adopted in 1996, has still not entered into force, nor does it contain any provisions specifically addressing victims’ rights or victim assistance. In light of the unacceptable humanitarian consequences and associated risks posed by nuclear weapons, Austria invited all relevant stakeholders to cooperate in efforts ‘to close the legal gap’. Switzerland and other States intent on furthering nuclear disarmament and uphold the rights of victims should join the Austrian pledge without delay.

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