Soviets Probably Not Required to Pay Damages, Law Experts Say

Cases involving two British destroyers sunk by mines in the Corfu Channel off Albania, a Canadian smelter that spewed sulfur dioxide over Washington state and damage done to Canada by debris from a Soviet satellite all could be cited in legal attempts to win compensation from the Soviet Union as a result of radioactive fallout from the Chernobyl nuclear disaster.

But international law experts said last week that they see crucial distinctions between these cases and the Chernobyl accident that make prospects seem slim for nations to recover damages from the Soviets. They held out the possibility, however, that the Kremlin may agree to compensation simply to try to build its image.

For one thing, the Soviet Union was not a party to treaties or conventions that led to settlements in the 1940s smelter case and the 1978 incident in which radioactive pieces of a Cosmos satellite fell on Northern Canada.

For another, the Soviet Union has never agreed to compulsory jurisdiction of the World Court in The Hague, which is officially known as the International Court of Justice.

Last October, the United States stopped recognizing such jurisdiction, under which nations can sue or be sued even if the defendant country objects. The action resulted from the court’s decision in 1984 to consider Nicaraguan charges that U.S. aid to the rebels violated international law.

“Apart from specific treaties, countries have not been held responsible for trans-border pollution,” said Phillip Trimble, an international law professor at the UCLA Law School. “Many international lawyers would like to say that countries are responsible, but that principle is not established as a matter of law.”

But Edith Brown Weiss, an international law professor at Georgetown University, contended that, under the general principles of international law, a nation has an obligation to give “timely and adequate notice” of such incidents as the Chernobyl accident, providing “enough information for other countries to assess the risk and take protective steps.”

That notion flows from the 1949 Corfu Channel decision by the World Court, Weiss said. In that case, the court held that Albania should pay damages to Britain for the destruction in 1946 of two destroyers in the Ionian Sea because Albania failed to warn Britain of the mine field.

The “classic trans-border pollution case--and there are not many--is Trail smelter,” said John Lawrence Hargrove, executive director of the American Society of International Law. In that case, a special tribunal decided in a series of rulings in the 1940s that Canada had a duty to protect the United States from injurious consequences of actions taken inside Canada.

The damage occurred in the 1930s from a zinc and lead smelter that operated near Trail, British Columbia, which emitted sulfur dioxide from two 409-foot-high smokestacks.

The tribunal, created under a convention the United States and Canada had signed in 1935, “told Canada to clean up,” Trimble said.

The incident of the Cosmos satellite dropping radioactive debris on Canada was governed by the 1972 Convention on International Liability for Damage to Space Objects, to which both countries were parties, Weiss said.

In 1980, two years after the incident, the Soviets paid Canada $3 million--one half of the amount Canada had sought.