Highest legal authority in France: Exposure data withheld, nuclear victims too readily dismissed as "negligible risk" cases

Last week I wrote an overview of the history of French nuclear testing in the South Pacific, and this week's post adds to it with a recent announcement by the highest legal authority in France regarding the tendency of the victims compensation board to find that risks from nuclear tests were negligible. The Council of State (Le Conseil d’État) rebuked the authority (CIVEN) for withholding data and, in many cases, concluding without evidence that risk was negligible. As Bruno Barrillot, an expert on this issue, explained it previously (see last week's post), the new (2010) law for compensating victims seemed like it would provide long-awaited compensation for victims of the 1966-1996 testing period, but in actuality almost all applicants have been denied compensation. The government seems to be slowly moving in the right direction with this ruling, but this does not appear to be a complete solution, and it is, of course, too little and too late for many of the victims.
It is notable that the terms used in the ruling refer only to external radiation exposure. This is a recurring pattern throughout the world in all official programs dealing with the harm caused by military and civilian nuclear activities. The official criteria steadfastly ignore the issue of compensation for internal contamination caused by absorption of beta and alpha particles. These particles could damage health either by temporary or long-lasting presence in the body, so the degree of exposure is impossible to determine. Such testing, being very expensive and impractical, was seldom done on each possibly affected individual. In order to justly compensate people suffering from health effects, governments would have to presume causality without strong evidence, and internal contamination would have to at least start to have some mention in official discourse.

Communique issued by the French Council of State (Le Conseil d’État) on Ruling no. 378325 December 8, 2015

Compensation for Victims of Nuclear Tests

Translation of:

Indemnisation des victimes d’essais nucléaires

The Council of State has specified the conditions to be applied in the compensation program for victims suffering from illnesses resulting from exposure to ionizing radiation due to nuclear tests.

The Council of State has issued a statement for the first time regarding the application of the law of January 5, 2010, a law that covers compensation for the victims of nuclear testing. This law admits, in principle, that when a person suffers from a radiation-induced illness after having stayed during determined periods in French Polynesia or in Algeria, his or her illness is regarded as having been caused by exposure to ionizing radiation due to nuclear effects.* Such persons thus have a right to compensation because the state is responsible for their suffering. In each case, the law admits that this presumption of causality can be denied if, considering the nature of the illness and the conditions of exposure, it can be established that there is a negligible risk attributable to nuclear tests.

The Committee for Compensation for the Victims of Nuclear Tests (CIVEN—le comité d’indemnisation des victimes des essais nucléaires), is charged with ruling on applications for compensation. The Council of State has specified the criteria that CIVEN must use to evaluate the negligible character of the risk of developing an illness attributable to nuclear tests. The criteria take into account the latency period of the illness, the sex of the applicant, his or her age at the time of diagnosis, location at the time of the nuclear tests, the functions effectively performed by the applicant, the conditions of exposure, and the missions of his or her military unit at the time of the tests.

The Council of State also ruled that CIVEN should rely on the received dose of ionizing radiation, and it should release the results of contamination surveys to the persons concerned and to persons in a comparable situation to the claimants. When such information is not available in cases in which surveys would have been required, the Council of State found that the presumption of causality cannot be dismissed because it is impossible to establish in such cases that the risk was negligible.

* This may be an error in the French version of the text which uses the word effets (effects) when the context seems to require essais (tests, referring to nuclear tests).

About Le Conseil d’État (from the official English page):

Administrative tribunals settle disputes between a public body and a private entity or between two public bodies. The Conseil d'État has jurisdiction over disputes concerning public liberties, administrative police, taxes, public contracts, the civil service, public health, competition rules, environmental law, and urban and regional development just to name a few. The Conseil d'État, being the supreme administrative jurisdiction in France, is pivotal to maintaining the relationship between citizens and public authorities. Only an administrative judge can quash or reformulate the decisions made by authorities exercising executive powers such as the central administration or entities that exercise delegated powers. With the evolving politico-socio context, administrative law disputes have correspondingly increased by an average of 10% in recent years.