Transcript International after

Consequences of Fukushima accident
on international framework for
nuclear liability and compensation
Open lecture, Higher School of Economics, National Research University, Moscow
7. June 2011
Dr. Jakub Handrlica LL.M.
Law School, Charles University in Prague, Czech Republic
Email: [email protected]
Content of presentation
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1. Nuclear incident and nuclear damages
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2. Existing nuclear third party liability treaties
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3. Nuclear third party liability in Japan
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4. Consequences of the Fukushima accident
1. Nuclear incident and nuclear damages
(1)
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from the early beginnings of peacefull use of nuclear energy, the
international legal framework on nuclear liability tryed to
balance 3 rather different interests:
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1. protection of potentional victims of a large scale accident
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2. support of a new and prospective energy sector
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3. interests of nuclear suppliers (in particular the US industry)
1. Nuclear incident and nuclear damages
(2)
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What kind of damages can occur as consequence of a nuclear
incident?
Personal injuries
Medical examination expenses
Evacuation expenses
Menthal suffering
Damage to property
Lost of income
Costs of measures of reinstatement of impaired environment
Costs of preventive measures
etc.
2. Existing nuclear third party liability
treaties (1)
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Overview of international organisations, active in the field of
nuclear liability:
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Organisation for Economic Cooperation and Development /
Nuclear Energy Agency (OECD/NEA)
(originally: European Nuclear Energy Agency)
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International Atomic Energy Agency (IAEA)
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European Atomic Energy Community (Euratom)
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International Maritime Organisation (IMO)
2. Existing nuclear third party liability
treaties (2)
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International treaties of the „first generation“:
1. Convention on Third Party Liability in the Field of Nuclear
Energy of 1960 (Paris Convention)
2. Convention on the Liability of Operators of Nuclear Ships of
1962 (Nuclear Ships Convention)
3. Convention Supplementary to the Paris Convention of 29th
July 1960 on Third Party Liability in the Field of Nuclear Energy
of 1963 (Brussels Suppelementary Convention)
4. Convention on Civil Liability for Nuclear Damage of 1963
(Vienna Convention)
5. Convention relating to Civil Liability in the Field of Maritime
Carriage of Nuclear Material of 1971
2. Existing nuclear third party liability
treaties (3)
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International treaties of the „second generation“:
1. Joint Protocol Relating to the Application of the Vienna
Convention and the Paris Convention of 1988 (Joint Protocol)
2. Protocol to Amend the Vienna Convention on Civil Liability
for Nuclear Damage of 1997(1997 Protocol)
3. Convention on Supplementary Compensation for Nuclear
Damage, Supplementary Compensation Convention of 1997
(Convention on Supplementary Compensation)
4. Protocol to Amend the Paris Convention Third Party Liability
in the Field of Nuclear Energy of 2004 (2004 Protocol)
5. Protocol to Amend the Brussels Supplementary Convention of
2004 (2004 Protocol)
2. Existing nuclear third party liability
treaties (4)
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Basic principles of existing nuclear liability treaties:
Strict (absolute) liability
Exclusive liability of operator (legal channeling)
Liability limitation
Congruence principle (mandatory insurance)
Very restricted exonerations (war, grave natural disaster etc.)
Exclusive jurisdiction of the competent court
Time limitations for claims
2. Existing nuclear third party liability
treaties (5)
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Improvements in the treaties of “second generation”:
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More money available
1997 Protocol> liability limit 300 millions SDR, 2004 Protocols>
together 1,5 billions EUR
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More victims compensated
also victims from the non/contracting non/nuclear states and
non>contracting states offering reciprocity
More damage compensated
environmental damages, economical loss, preventive measures
etc.
3. Nuclear third party liability in Japan (1)
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Japan (similarly to India, China, Canada etc.) is not contracting
party to any international nuclear liability convention
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Japanese legislation on nuclear liability:
the Act on Compensation for Nuclear Damage
the Act on Indemnity Agreements for Compensation for Nuclear
Damage
Order for the Execution of the Act on Compensation for Nuclear
Damage
Order for the Execution of the Act on Indemnity Agreements for
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Compensation of Nuclear Damage
3. Nuclear third party liability in Japan (2)
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Japanese legislation anchored basically similar basic principles
as the international conventions:
The operator is strictly and exclusively liable for nuclear
damages
The liability is not limited in amount
The operator is obliged to financially secure its liability up to a
certain amount (for nuclear power plants JPY 120 billion which
equals EUR 1.05 billion).
Where nuclear damage exceeds the financial security amount,
the Government may help a nuclear operator to compensate the
damage
Japan’s Civil Code provides that all rights of action are fully
extinguished 20 years following the date of the tort
3. Nuclear third party liability in Japan (3)
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Questions, which need to be answered very soon:
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Who will be liable for damages arising as consequence of
Fukushima accident?
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Section 3 of the Compensation Act provides:
“Where nuclear damage is caused as a result of reactor operation etc. during
such operation, the nuclear operator who is engaged in the reactor operation
etc. on this occasion shall be liable for the damage, except in the case where the
damage is caused by a grave natural disaster of an exceptional character or by
an insurrection”.
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How the transboundary damages will be handled?
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Japan is not a contracting party to any of the international nuclear liability
conventions. Should there be claims brought forward from outside Japan
claimants will have to rely on general tort law with the burden to establish fault
etc.
4. Consequences of the Fukushima accident (1)
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Status quo of the “second generation” international
treaties:
Joint Protocol entered into force in 1992, it has currently 26
contracting parties (however, important European nuclear
states - France, Belgium, United Kingdom – did not ratify)
1997 Protocol entered into force in 2003, it has currently 9
contracting parties (however, only 2 of them – Argentina and
Romania – are nuclear states)
Convention on Supplementary Compensation did not entered
into force yet
2004 Protocols did not entered into force yet
4. Consequences of the Fukushima accident (2)
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Facing the Fukushima accident, two basic questions are arising:
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international (worldwide) vs. regional (or bilateral)
nuclear liability relations ??
most recently: Euratom is interested in being more active in the
field
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state responsibility and compensation vs. liability of
operator??
take into consideration competition law – related aspects of
nuclear subsidies
Thank you for your invitation and attention!!
Dr. Jakub Handrlica LL.M.
Law School, Charles University in Prague, Czech Republic
Email: [email protected]