Tsubasa Shinohara†

A. Introduction

The Treaty on Prohibition of Nuclear Weapon (TPNW) was adopted on 7 July 2017 by the United Nations conference to negotiate a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination from 27 to 31 March and 15 June to 7 July 2017. It has already entered into force on 22 January 2021 under Article 15 of the TPNW. It was signed by 86 and ratified by 56 states at the time of writing.[1] It must be noted that this treaty will play an important role in paving a way for the world of comprehensive elimination of nuclear weapons.[2]  

However, the TPNW has a huge gap between the nuclear weapon states (NWS) and non-nuclear weapon states (NNWS). In order to complement this gap, this article will consider a human rights approach to make a bridge between the NWS and NNWS. In particular, Article 6 of the TPNW required state parties to provide for individuals under its jurisdiction who are affected by the use or testing of nuclear weapons an adequate assistance, including medical care, rehabilitation and psychological support, and social and economic inclusion.[3] Furthermore, this provision imposes on state parties to take necessary and appropriate measures towards the environmental remediation of areas contaminated by activities related to the testing or use of nuclear weapons or other nuclear explosive devices.[4] In light of this provision, this article will consider some important cases concerning nuclear testing and nuclear power plants rendered by the European Court of Human Rights (ECtHR). Through this research, it would be able to clarify the ECtHR’s current position on nuclear-related issues and, thus, to develop insights into the analysis of nuclear issues from a human rights approach.

In light of the foregoing, this short paper will be divided into the following sections: After this introduction, it will provide five cases notes delivered by the ECtHR. On this basis, this article will describe the final remarks on nuclear testing and nuclear power plants from a human rights perspective.

B. Analysis of the ECtHR’s jurisprudence

1. L.C.B v. the United Kingdom

In L.C.B v. the United Kingdom,[5] the United Kingdom carried out a number of atmospheric nuclear tests for developing nuclear weapons at Christmas Island, in the Pacific Ocean and at Maralinga, Australia, involving over 20,000 servicemen during the period of services between 1952 and 1967 (L.C.B v. the United Kingdom, para. 10). The service personnel who participated in nuclear test service during the Christmas Island tests were ordered to line up in the open and to be exposed their eyes to the explosions and radioactive substances (para. 11). In this case, the applicant alleged that “the purpose of this procedure was deliberately to expose servicemen to radiation for experimental purposes” (para. 11). However, the British government denied his allegation because the service personnel “were sufficiently far from the centre of the detonations to avoid being exposed to nuclear radiation at any harmful level and the purpose of the line-up procedure was to ensure that they avoided eye damage and other physical injury caused by material blows about by the blast” (para. 11).

In this connection, the applicant’s father had engaged in the clean-up programme of the nuclear weapons tests during 1957 and 1958 at the Christmas Island (para. 12) and the applicant, born in 1966, was diagnosed as having leukaemia in 1970 (para. 13). She received a medical treatment until 10 years old, and she could not enjoy the primary school education and normal childhood activities (para. 14). In December 1992, a high incidence of cancers including leukaemia in the children of Christmas Island veterans was reported by the British Nuclear Tests Veterans’ Association (para. 16).

Under the circumstances, the applicant brought its complaint about a violation of Article 2 of the ECHR because the British government had failed (1) to “warn her parents of the possible risk to her health caused by her father’s participation in the nuclear tests” and (2) to “monitor her father’s radiation dose levels” (para. 24). In this regard, the Court observed that the scope of its jurisdiction was determined by the Commission’s decision on admissibility and thus it is impossible to invoke new and separate complaints not raised before the Commission (para. 35). Based on this understanding, the Court had no jurisdiction over the second claim because the applicant did not argue it before the Commission (para. 35).

Concerning the first claim, the Court had to decide whether the British government “did all that could have been required of it to prevent the applicant’s life from being avoidably put at risk” (para. 36). In this regard, the Court noted that the evidential records indicated that “radiation did not reach dangerous levels in the areas in which ordinary servicemen were stationed” and “the State authorities, during the period between the United Kingdom’s recognition of the competence of the Commission to receive applications on 14 January 1966 and the applicant’s diagnosis with leukaemia in October 1970, could reasonably have been confident that her father had not been dangerously irradiated” (para. 37). On that basis, it held that there was no violation of the applicant’s right on the grounds that, “given the information available to the State at the relevant time (…) concerning the likelihood of the applicant’s father having been exposed to dangerous levels of radiation and of this having created a risk to her health”, British authority could not “have been expected to act of its own motion to notify her parents of these matters or to take any other special action in relation to her” during that relevant period (para. 41).

To sum up, it follows that the Court found that there was no violation of Article 2 of the ECHR due to the acts or omissions of the British government relating to nuclear testing sites (para. 41).

2. McGinley and Egan v. the United Kingdom

In McGinley and Egan v. the United Kingdom,[6] the United Kingdom carried out a number of atmospheric tests of nuclear weapons between 1952 and 1967 in the Pacific Ocean, at Christmas Island, and at Maralinga, Australia, involving over 20,000 servicemen (McGinley and Egan v. the United Kingdom, para. 9). The applicants, who participated in the military operation at Christmas Island in Pacific Ocean during that period, suffered from health problems after the service at the nuclear testing site (paras. 17-21 and paras. 36-38). They applied for service disability pensions or war pensions on the ground of their health problems related to the nuclear tests, but the British authority denied their applications due to a lack of evidence establishing that there was a link between their radiation-related health problems and the nuclear tests (paras. 22-33 and paras. 39-52).

On that basis, the ECtHR declared admissible the complaints of a violation of Article 6(1) (arguing that the a lack of access to relevant records following applicants’ medical conditions and the nuclear test constituted a denial of their effective access to court in the context of their applications for service disability pensions), Article 8 (alleging that non-disclosure of the documents amounted to an unjustifiable interference with their private life) and Article 13 of the ECHR (paras. 67-68 and 70). Among other things, this subsection will skim through the Court’s analysis of the part of Article 8 of the ECHR.

In this connection, the applicants argued that there was a violation of the rights to respect for their private and family lives under Article 8 of the ECHR due to the non-disclosure of the documents (para. 92). Article 8 of the ECHR imposes negative obligations refraining from arbitrary interference with individual private and family life by the public authorities, and positive obligations protecting them against such an interference (para. 98). To determine whether that positive obligation exists, the Court had to consider the “fair balance between the general interest of the community and the competing interests of individual or individuals, concerned” (para. 98).

In this regard, the ECtHR observed that, if the documents contained information in assessing radiation levels in the areas of aforesaid nuclear testing site, the applicants had an interest under Article 8 of the ECHR in obtaining access to such documents (para. 99). However, the British government argued that there was no national security reason for retaining information in relation to radiation levels on the nuclear testing site (para. 100). In this situation, the Court had to examine whether the British government complied with the positive obligation that, where the British authority carried out a dangerous activities, such as nuclear tests, that might give rise to hidden adverse effects on the health conditions of those involved in such activities, Article 8 of the ECHR required the British authority to provide an effective and accessible procedure for those who seek all relevant and appropriate information (para. 101). Consequently, the ECtHR held that there was a national rule stipulating a procedure for the applicants to request such documents and that no evidence that this procedure was not effective in securing disclosure of the documents concerned existed (para. 102).

Accordingly, the ECtHR concluded that the British government fulfilled its positive obligation under Article 8 of the ECHR and thus there was no violation of the applicant’s right due to the non-disclosure of the documents relating to nuclear testing (para. 103)

3. Athanassoglou and Others v. Switzerland

In Athanassoglou and Others v. Switzerland,[7] the applicants lived in the villages situated in zone 1 near the Beznau II nuclear power plant in Canton of Aargau (Athanassoglou and Others v. Switzerland, para. 9). On 12 December 1994, the Swiss Federal Council decided that it granted the Beznau II nuclear power plant an extension of its operation licence to a private company which had operated it since 1971 (para. 10). The applicants opposed to that decision because the Beznau II did not meet current safety standards on account of serious and irremediable construction defects leading to the greater risk of nuclear accident (paras. 11-12). However, the Swiss Federal Council rejected their objections (para. 13).

Based on the fact, the applicants claimed that they did not have effective access to a court under Article 6(1) of the ECHR due to the Federal Council’s decision on 12 December 1994 because “it had not open to them under Swiss law to seek judicial review contesting the lawfulness of the decision of the Federal Council of 12 December 1994” (para. 35). In addition, they also argued that there was no effective remedy enabling them to complaint of a violation of their right to life under Article 2 and their right to respect for physical integrity under Article 8 of the ECHR (para. 56).

 Regarding Article 6(1) of the ECHR, the Court arrived at the same conclusion as the Balmer-Schafroth and Others v. Switzerland stating that “the connection between the Federal Council’s decision and the domestic-law rights invoked by the applicants was too tenuous and remote” because “the facts of the present case provide an insufficient basis for distinguishing it from the Balmer-Schafroth and Other case” (Athanassoglou and Others v. Switzerland, para. 51; Balmer-Schafroth and Others v. Switzerland [GC], para. 45). To be precise, the Court particularly indicated the following:  

“The Court considers … that how best to regulate the use of nuclear power is a policy decision for each Contracting State to take according to its democratic processes. (…) What Article 6 § 1 requires is that individuals be granted access to a court whenever they have an arguable claim that there has been an unlawful interference with the exercise of one of their (civil) rights recognised under domestic law. In this respect, Swiss law empowered the applicants to object to the extension of the operating licence of the power station on the grounds specified in section 5 of the Federal Nuclear Act. It did not, however, give them any rights as regards the subsequent extension of the licence and operation of the station beyond those under the ordinary Civil Code for nuisance and de facto expropriation of property (…). (Athanassoglou and Others v. Switzerland, para. 54)

Therefore, it held that “[i]t is not for the Court to examine the hypothetical question whether, if the applicants had been able to demonstrate a serious, specific and imminent danger in their personal regard as a result of the operation of the Beznau II power plant, the Civil Code remedies would have been sufficient to satisfy these requirements of Article 6 § 1 (…)” (para. 54).

In conclusion, the Court found Article 6(1) of the ECHR inapplicable to this case (para. 55). In the same line, it also ruled that Article 13 was not applicable to this case did not need to examine whether “the Civil Code action relied on by the Government would have provided an effective remedy for the purpose of Article 13” in light of the applicants’ argument of a violation of Articles 2 and 8 of the ECHR (para. 60).

4. Burmych and Others v. Ukraine

The five applications in Burmych and Others v. Ukraine case[8] were lodged with the ECtHR under Article 34 of the ECHR (Burmych and Others v. Ukraine [GC], para. 1) by four Ukrainian nationals, who worked as a Chernobyl relief worker and/or lived in the area of radioactive contamination as a result of the accident of Chernobyl nuclear power plant (paras. 45-70), and a private joint-stock company (Izolyatisiya, PAT), registered in Ukraine (paras. 71-85). In particular, regarding nuclear-related complaints in this case, each Ukrainian district court ordered the Labour and Social Welfare Department in Ukraine to pay for each applicant damages caused by the Chernobyl nuclear disaster in light of the relevant Ukrainian law, but that order remains unenforced (paras. 71-85).

 Based on the fact, the applicants claimed the followings complaints: (1) A violation of their rights under Article 6 of the ECHR and Article 1 of Protocol No. 1 to the ECHR because of non-enforcement or delayed enforcement of the final judgments in their favour delivered by Ukrainian domestic courts and (2) a violation of Article 13 of the ECHR due to a lack of effective remedy in the Ukrainian domestic law (para. 130 and paras. 136-139). This case was understood as a part of repetitive cases arising from non-implementation of previous judgments against the Ukraine, and the Court rendered the pilot-judgment that obliges the Ukraine government to deal with such repetitive cases of violations of the ECHR.

 In this case, the Court observed that the Ukraine government had failed to execute the pilot judgment (regarding the pilot judgment’s purpose and effect, see para. 159) by the Court as in the case of Yuriy Nikolayevich Ivanov v. Ukraine on 15 October 2009[9] because it had received a massive influx of applications arguing that the systemic problem of non-enforcement of domestic judicial decisions have still remained unresolved (paras. 144-156). Under this circumstance, the Committee of Ministers indicated that “the situation in Ivanov-type cases where general measures have not been implemented within a reasonable time creates a serious threat to the Convention system” (para. 170). In the present case, the Court considered that “the failure of the [Ukrainian government] to implement the pilot judgment has for many years resulted in a constant and increasing inflow of applications where the Court’s only role has been to continually repeat its finding of a Convention violation made in the Ivanov Judgment …” (para. 170). Furthermore, it observed that “nothing is to be gained, nor will justice be best served, by the repetition of its findings in a lengthy series of comparable cases, which would place a significant burden on its own resources, with a consequent impact on its considerable caseload” (para. 174). Therefore, it decided to consider a question whether it was justified to continue examination of Ivanov-type applications by the Court in light of Articles 19 and 46 of the ECHR (para. 175).

 In conclusion, the Court held that, as in the case of Ivanov pilot judgment, the allegations in this case could be recognised as a question of execution under Article 46 of the ECHR and “the Convention aims are not best served by continuing to deal with post-Ivanov cases” (para. 202). In other words, the Court concluded that “the continued examination of the case is not justified within the meaning of Article 37(1) (c)” (para. 202). Therefore, it decided to strike out the applications in question (para. 208)

5. National Movement Ekoglasnost v. Bulgaria

In National Movement Ekoglasnost v. Bulgaria,[10] the applicant association founded in 1992 and registered in Sofia, claimed complaints of a violation of its right to peaceful enjoyment of its possessions guaranteed by Article 1 of Protocol No. 1 to the ECHR on the grounds that the Bulgarian courts ordered the applicant to pay an excessive legal costs for a nuclear power plant in reopening proceedings of civil trial (National Movement Ekoglasnost v. Bulgaria, para. 58).

 Concerning the admissibility criteria ratione personae, the Court noted that “a legal entity … may submit an application to it, provided that it is a non-governmental organisation within the meaning of Article 34 of the Convention” (para. 61). In this case, it observed that there was no indication that the applicant was not considered as a “non-governmental organisation under Article 34 of the ECHR and thus, the application in question must be declared admissible (paras. 61-62).

 On the merits, the Court then considered whether there was any interference by a public authority with the peaceful enjoyment of the applicant’s possessions in light of Article 1(1) of Protocol No. 1 to the ECHR (paras. 68-72). If so, it examined whether the interference was lawful, pursued a legitimate aim and was proportionate to that legitimate aim (paras. 73-84). In this regard, the Court confirmed that the costs order by the Bulgarian authority was lawful and pursued a legitimate aim (paras. 73-74). However, it decided that the Bulgarian authority had failed to a fair balance between the demands of the general interest of the community and the requirement of protecting the individual’s fundamental rights despite that the state should be accorded a wide margin of appreciation in regulating their systems of allocation of costs in judicial proceedings (para. 83). This was because the Bulgarian authority failed to provide “sufficient and relevant reasons so as to ensure that those fees were actually fair and justified as required by domestic law” (para. 83).

In conclusion, the Court concluded that there was a violation of Article 1 of Protocol No. 1 (para. 84) on the grounds that the applicant association suffered an individual and excessive burden due to the costs order by the Bulgarian authority (para. 83)

C. Final Remarks

This article considered five important cases concerning nuclear testing and nuclear power plants rendered by the ECtHR. Finally, it will indicate a position of the ECtHR on the nuclear testing and nuclear power plants and describe the final remarks on this issue from a human rights perspective.

Regarding the nuclear testing case, in the L.C.B v. the United Kingdom and McGinley and Egan v. the United Kingdom, the ECtHR did not find a causal link between the health problems and exposure to nuclear radiation caused by the nuclear testing. Therefore, it held that there was no violation of the rights of victims under Articles 2, 3, 6 (1), 8, 13 of the ECHR. In other words, the ECtHR considered that victims may claim a violation of Articles 2, 3, 6(1), 8, 13 of the ECHR if they successfully establish a link between the health problems and exposure to nuclear radiation caused by the nuclear testing. This logic would be reinforced by Article 6(1) of the TPNW because the states parties must provide adequate assistance for victims who were affected by the use or testing of nuclear weapons. However, it is important to note that the NWS does not sign and ratify the TPNW so that victims cannot reply on the TPNW to defend their position before the ECtHR.

 Concerning the nuclear power plants case, the ECtHR considered different legal issues in each case cited in this article. Although it did not take account of any nuclear issues in Burmych and Others v. Ukraine and National Movement Ekoglasnost v. Bulgaria cases,  the Court indicated a future risk and damage due to the nuclear power plant in Athanassoglou and Others v. Switzerland case. Furthermore the ECtHR clearly stated that it did not examine the hypothetical question whether, if the applicants had been able to demonstrate a serious, specific and imminent danger in their personal regard as a result of the operation of nuclear power plant. In other words, it can be considered that the Court might examine whether there is a violation of human rights due to the nuclear power plant’s accident like the accident of Fukushima nuclear power statation[11] because it is not “hypothetical” but “real” question that has occurred.[12] Therefore, it appears that the human rights issues raised by the nuclear power plant need to be real, not hypothetical.

 After the analysis of the ECtHR’s jurisprudence, a question that may arise is whether how the TPNW will influence the interpretation of the ECHR. As had been mentioned above, Article 6(1) and (2) of the TPNW imposes the states parties to provide adequate assistance for victims and to take necessary and appropriate measures towards the environmental remediation of areas contaminated by activities related to the testing or use of nuclear weapons or other nuclear explosive devices. However, the NWS (France and the United Kingdom) does not sign and ratify this treaty and, thus, the ECtHR will be immediately affected by the TPNW’s obligations. In this situation, it should be considered that the impact of the TPNW on the ECtHR would be small. It is further worth noting that member states to the Council of Europe,[13] except for Austria, Ireland and Malta that ratified the TPNW, had not joined the TPNW and, thus, the ECtHR does not need to consider the TPNW in its proceedings.

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[1] See https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVI-9&chapter=26 (Accessed 3 December 2021, all online sources in this article were accessed on the same date).

[2] See Rietiker, D and Mohr, M. (2018), A short commentary article by article (April 2018), IALANA & SAFNA, pp. 12-15, available at https://www.ialana.info/2018/04/article-by-article-treaty-on-the-prohibition-of-nuclear-weapons/; See also Casey-Maslen, S. (2019), The Treaty on The Prohibition of Nuclear Weapons: A Commentary, Oxford University Press, 2019, pp. 134-173.

[3] Article 6(1) of the TPNW.

[4] Article 6(2) of the TPNW.

[5] L.C.B v. the United Kingdom, no. 798/1001, Judgment of 9 June 1998, ECtHR.

[6] McGinley and Egan v. the United Kingdom, no. 10/1997/794/995-996, Judgment of 9 June 1998, ECtHR (revised judgment, nos. 21825/93 and 23414/94 published on 28 January 2000).

[7] Athanassoglou and Others v. Switzerland, no. 27644/95, Judgment of 6 April 2000, ECtHR; See also Balmer-Schafroth and Others v. Switzerland [GC], no. 6/1996/686/876, Judgment of 26 August 1997, ECtHR.

[8] Burmych and Others v. Ukraine [GC], nos. 46852/13 et al. Judgment of 12 October 2017, ECtHR.

[9] Concerning this case, see Burmych and Others v. Ukraine [GC], paras. 11-44; Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, Judgment of 15 October 2009, ECtHR.

[10] National Movement Ekoglasnost v. Bulgaria, no. 31678/17, Judgment of 15 December 2020, ECtHR.

[11] From a human right’s perspective, Rietiker, D. (2019), “The UN Convention on the Rights of the Child celebrates its 30th anniversary: An instrument that remains relevant, including to assess the right to health after the 2011 Fukushima disaster”, SAFNA, published on 24 November 2019, available at https://safna.org/2019/11/24/the-un-convention-on-the-rights-of-the-child-celebrates-its-30th-anniversary-an-instrument-that-remains-relevant-including-to-asses-the-right-to-health-after-the-2011-fukushima-disaster/.

[12] See World Nuclear Association (2020), “Fukushima Daiichi Accident”, updated in May 2020, available at https://www.world-nuclear.org/information-library/safety-and-security/safety-of-plants/fukushima-daiichi-accident.aspx.

[13] Regarding all member states to the Council of Europe, see https://www.coe.int/en/web/tbilisi/the-coe/objectives-and-missions?desktop=true.

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† Ph.D. Candidate, University of Lausanne, Switzerland; tsubasa.shinohara@unil.ch.