ESTABLISHMENT OF AN EAST ASIAN NUCLEAR SAFETY AND LIABILITY
REGIME
By Prof. Dr. Chen, Chun-Sheng1
I
Introduction
After Fukushima Daiichi nuclear disaster, almost all of the countries which owned
nuclear reactors soon reviewed the security of all their nuclear power plants(NPP) in
operation and those under construction, and committed to pursue higher standards of nuclear
power plant safety and performance of nuclear power plant. However, many countries still
remain their nuclear development policies unchanged.
In East Asian countries, China has 11 nuclear reactors in operation and another 24 units
under construction. Korea has 21 nuclear reactors in operation, which represents
approximately 31.1% of the whole country’s power output and the number of units will be 34
before 2024. In Japan, it also possesses 50 operating nuclear units. And Taiwan now has
three nuclear power plants (NPP) including 6 operating units and 2 units still under
construction. There will be more than 100 units of NPP in these 4 East Asia countries.
Therefore nuclear safety is a matter of the utmost importance to the East Asia countries.
This article is going to discuss nuclear safety and third party liability in the 4 East Asia
countries, including China, Japan, Korea and Taiwan. In order to enhance the regulatory
framework for nuclear safety in East Asia, we will focus on the following issues:
A. An effective independence of the national regulatory authorities.
B. How to enhance transparency on nuclear safety matters.
C. From the viewpoint of the Precautionary Principle and Transparency to reinforce the
1
The author is professor, Department of Law, College of Law, National Taipei University (NTPU)
since 1990. He became Director at Department of Law, NTPU in 2006; Dean, Department of Law,
College of Law, NTPU(2008). He is Justice of Judicial Yuan, Taiwan, R. O. C. and adjunct professor at
NTPU since 2008. The author is responsible for the facts and opinions in this paper. The views
expressed in this paper are those of the author alone and not necessarily represent those of the Judicial
Yuan and NTPU.
1
monitoring and exchange of experiences.
D. In nuclear liability regime, all 4 countries, China, Japan, Korea and Taiwan are not
members of any nuclear liability regime (neither Paris Convention nor Vienna Convention
and nor CSC regime). How to solve the nuclear damage problems?
E. Is it necessary to establish an East Asian nuclear safety and liability regime?
II The nuclear safety in the 4 East Asia countries
A. An effective independence of the national regulatory authorities.
1. The nuclear safety system of China
After Fukushima Daiichi disaster, the energy policy in China does not change a lot,
According to the calculation in 2010, the nuclear power plants in China connected to the grid
generates 1.77 percent of the country’s electricity supply. The policy for the development of
using nuclear energy has been emphasized and the target of the developing the nuclear
industry has been declared in China’s 12th Five-Year Plan (2011-2015). In China’s 12th
Five-Year Plan (2011-2015), the goals for the nuclear units are to generate 40 million
kilowatts for the country’s electricity supply in 2015 and the generation will reach 70-80
million kilowatts in 2020. The goal, the power generation by the nuclear units would be 40
million kilowatts, is expected to produce 4 times of the amount of the power generated by
nuclear units in the past three decades just in five years, which has been deemed to be a great
advance for the nuclear energy industry in China. The priority for the development of nuclear
energy in China is to reform the nuclear safety regime to establish a national agency with
dependence, authority, expertise, and efficiency for regulating and monitoring nuclear safety2.
China has not yet enacted its own Atom Energy Act. There is only a draft of the Atom
Energy Act since 1984. However there are plenty of administrative orders (for example the
order promulgated by National Nuclear Security Bureau). After Fukushima Daiichi nuclear
disaster, the discussion about the contents of the Atom Energy Act’s draft is still continuing.
But the questions about : 1. the main purpose of the law shall be promotion or security? 2.
how to establish a system of supervision and management of nuclear security. 3. public
2
Fong Peng, Legislative problems of China’s nuclear energy policy, in: Taiwan Energy Law
Research Association(TELRA), The system of nuclear law I -- Safety Regulation of Nuclear Energy
and Damage Compensation for Nuclear Responsibility, Taipei, 2014, P. 219.
2
participation , remain un decided.3
2. Japan
According to the “Act for Establishment of the Nuclear Regulation Authority”(NRA Act),
which was promulgated on 27 June 2012, the Nuclear Regulation Authority(NRA) has been
established. The NRA is founded under the Ministry of the Environment (MOE) as its
external organs can perform its authority independently from not only MOE but also other
governmental agencies. This reform of the organization includes three major components: 1.
independence of the regulatory body, 2. integration of the nuclear regulations, and 3.
development of the human resources4.
3. Korea
For the economic development and the need of cheap and stable energy, Korea chooses
nuclear energy. In 2011, the nuclear units generated 31.1 percent of the country’s electricity
supply. The Korean government is planning to increase the percentage of the power supply to
48 in 2022. In the end of 2012, there are 21 nuclear reactors in operation in Korea.
In 2011 Korea revised the Atom Energy Act and separated the law of nuclear safety
regulation from the law of nuclear of development. Korea also set up Nuclear Safety and
Security Commission (NSSC) under the President after 311 Fukushima Daiichi nuclear
disaster, which originally incorporated into the Ministry of Education, Science and
Technology, to protect its independence5.
4. Taiwan
In January 2010 the Legislative Yuan passed a set of four laws paving the way for a
reform of the Executive Yuan that will reduce the number of cabinet level agencies from 37 to
29. The AEC and its affiliated agencies have been affected by this reform. However, the
Fukushima accident has prompted reconsideration of the importance of independency and
capability of the nuclear safety regulatory authority.
3
Fong Peng, supra, P. 218-222.
Jun Fukasawa and Momoko Okusaki, Reform of the Nuclear Safety Regulatory Bodies in Japan,
International Nuclear Law Association – 2012 Congress – 8 -- 11 October 2012-Manchester, England,
Page 5.
5
Park, Kuyn-Sung, Safety Regulation of Nuclear Energy in Korea, in: Taiwan Energy Law
Association, The system of nuclear law I -- Safety Regulation of Nuclear Energy and Damage
Compensation for Nuclear Responsibility, Taipei, 2014, P. 177-178.
3
4
(1)The draft separates the law of nuclear safety regulation from nuclear development and
reinforces the status of Atomic Energy Commission.
(2). Extends the Emergency Planning Zone (EPZ) to 8 kilometers
According to Article 2 of the Nuclear Emergency Response Act, the term ‘Emergency
Planning Zone’ (EPZ) refers to a zone where the emergency response plan must be carried out
and the public protective measures must be taken immediately upon the occurrence of a
nuclear accident. And in Article 3.2 of the Enforcement Rules for the implementation of the
Nuclear Emergency Response Act, the EPZ radius (with the nuclear reactor facility as its
center) shall be no less than five kilometers, and shall be defined on the basis of ‘village
(neighborhood) administrative areas’. The draft extends the Emergency Planning Zone (EPZ)
to 8 kilometers.
B. How to enhance transparency on nuclear safety matters.
Domestic (national)
1. Information Disclosure
It will be given an example of Administrative Procedure Act of Taiwan(APAT):
Administrative Procedure Act of Taiwan(APAT) was enacted in 2001, It has been 8 years
since the enforcement of this Act. Article 1: This Act is enacted to ensure that all
administrative acts are carried out in pursuance of a fair, open and democratic process based
on the principle of administration by law so as to protect the rights and interest of the people,
enhance administrative efficiency and further the people's reliance on administration.
Article 446:
All information held or kept in custody by an administrative authority shall in principle
be made public but may be restricted in exceptional cases, and the disclosure of and
restrictions on information shall, unless as herein prescribed, be separately provided by law.
The term "information" in the preceding paragraph includes documents, pictures and
graphics, records, photographs, video (or sound) recordings, microfilms, computer processed
data, and other documents and articles held or kept in custody by any administrative authority,
6
This article was abolished and replaced by Governmental Information Disclosure Act(2005), Article
7, 18.
4
which are intended to be listened to, read or examined or may be examined or apprehended
through technological means. Enactment of legislations in relation to disclosure of
information to the public and imposition of restrictions thereon by administrative authorities
shall be completed within two years after the promulgation of this Act.
Before the enactment of such legislations, the Executive Yuan shall, in conjunction with
authorities concerned, establish rules for the purpose of putting this provision into practice.
Article 457:
An administrative authority shall make public voluntarily the following information held
or kept in custody by it, except for those involving national secrets:
(1). Legal orders;
(2). Documents in connection with administrative guidance;
(3). Provisions with respect to requirements for granting of permits and/or approvals;
(4). Administrative programs, operational statistics and study reports;
(5). Budgetary documents and final reports;
(6). Public works and procurement contracts and documents concerning foreign
relations;
(7). Receipt and payment of grants in aid; and
(8). Minutes of meetings held by organizations of the council system.
The information required to be voluntarily disclosed under the preceding paragraph shall
be made known to the public in due time by publication in a government gazette or by other
appropriate means
Article 46:
The party or an affected person may apply to an administrative authority for examining,
transcribing, copying or taking photographs of relevant materials or records; provided that the
materials or records are necessary for claiming or protecting his legal interest.
An application made under the preceding paragraph to an administrative authority may
7
This article was abolished and replaced by Governmental Information Disclosure Act(2005), Article
7, 18.
5
not be denied except for information specified as follows:
(1). Drafts and other preliminary operational documents prepared before an
administrative decision is made;
(2). Information relating to national defense, military, diplomacy and any other general
official secrets, which is legally required to be kept in confidence;
(3). Information relating to personal privacy, occupational secrets and trade secrets,
which is legally required to be kept in confidence;
(4). Information [the disclosure of which] is likely to result in infringement of the right
of any third party; and
(5). Information [the disclosure of which] is likely to result in serious impairment to the
social security, public safety or the normal performance of any function in connection with
the public interest
2. Public Participation – An instance of construction license of nuclear spent fuel dry
storage facilities
Problem and solution of the procedure of hearing in applications for construction
license of nuclear spent fuel dry storage facilities
(1) The procedure of hearing in TPC’s applications for construction license of nuclear
spent fuel dry storage facilities and its solution8
According to the Radioactive Materials Management Law, applications for nuclear waste
disposal or storage sites should be reviewed through hearing proceedings. (Article 17)
On 26 June, 2007 Atomic Energy Council, Executive Yuan promulgated the“Hearing
Proceeding Guidelines for the Construction of Radioactive Material Facilities.” These
guidelines will be applicable in the approval procedures of TPC’s spent assemblies. The key
provisions of the guidelines include: (1) the source of these guidelines. According is the
Radioactive Materials Management Law. (2) the scope of the hearing proceedings. In addition
to the residence local to the potential sites, the regulatory authorities may, if deemed necessary,
invite the applicant and other necessary parties to participate in the hearing proceedings.
(3)the pre-hearing procedures. (4) the conducting of hearing proceedings. (5) subsequent
measures of the hearing proceedings. Furthermore, when deemed necessary, the hearing
authorities may hold preparatory meetings for determining (1) contentious issues (2) order of
proceedings (3) all relevant administrative matters.
8
Chen, Chun-Sheng, Disposal of radioactive waste and legal regulation, in: Utilization of nuclear
energy and legal regulations, 1995, P.219.
6
(2) Focal Points:
It should avoid that the operation of public hearing process turning into a matter of sheer
formality
If the public hearing process were to be incorporated into the approval-application
procedures such as those embodied in the Atomic Energy Act, controversies may arise where
special interest groups with political motivations may unduly delay the proceedings of the
public hearing process, and thus undermine the promotion of national energy policies.
Nonetheless, public hearing procedures may still serve the educational purpose and promote
the legitimacy in decision-making process of the national energy policies. Regarding the
educational purpose of public hearing, I mean that citizens’ group or environmental groups
may submit new information unique to the local environment, which is not attainable to the
regulatory authorities. These ‘prime facie’ evidential materials, unless validly repudiated by
other experts, can be conveyed to the regulatory authorities in the hearing proceedings.
(3) Recommendations:
Firstly, the hearing proceedings have to be ‘substantiated’ in a way to focus more on the
scientific scrutiny, to enhance the right to access to information, to recruit professionals with
various expertise such as nuclear engineering, nuclear radiology, agriculture, genetic science,
geology, law etc. These professionals should participate in all aspects of scientific scrutiny of
the hearing proceedings concerned.
Secondly, ensure that the process and outcome of the hearing process are open to the
local communities. There should be no undue limitations on the right to access to information.
And information should not be withheld from those experts representing local communities.
The proceedings should be impartial.
Thirdly, the person conducting the hearing proceedings should use sounds discretion to
mediate those opposite viewpoints, ask parties to submit additional materials and ensure that a
constructive dialogue is being conducted between local communities and nuclear facility
corporations.
Fourthly, invite approved environmental groups and other interested parties.
(4) Conclusion: Strengthening the Public Communications
For promoting people’s trust upon the AEC’s(Atomic Energy Council) authority, public
participation would certainly be of a vital role. It has to be assured that the disposal storage of
the nuclear waste will not compromise public safety and health. Regarding the issue of public
communications, all application materials shall be displayed for exhibition 30 days after the
application is submitted and the exhibition should be lasting for at least 60 days. The rationale
underlying this rule is to provide forum where the public can submit to the AEC their
viewpoints, information materials, issues of concerns and recommendations relating to the
safety issue. In the period of exhibition, any individual, local groups, and NGOs may submit
documentations to the hearing authorities. The hearing proceedings is essential to the
approval procedures. Public communications and public participations are vital to the prudent
and just regulation of nuclear industry.
(B) International Level
3. Peer Reviews
Article 20 of The Nuclear Safety Convention provides for the parties to meet periodically
7
to review reports on measures they have taken to implement their international safety
obligations. By this process of ‘peer review’, each party shall have a reasonable opportunity
to discuss the reports submitted by other contracting parties and to seek clarification. The
purpose of the peer review allows experts ‘to identify problems, concerns, uncertainties, or
omissions in national reports, and focus on the most significant problems or concerns’.
4. Exchange of Regulatory Experiences
The process of peer review, mentioned above, are not meant to enable parties to review
the safety of individual installations, but to learn from each other by means of a ‘constructive
exchange of views’ after a ‘thorough examination of national reports’.
5. Notice of Emergency Situation
After the Chernobyl nuclear accident, the signature of the 1986 Convention on Early
Notification of a Nuclear Accident has been opened. It imposes on parties a duty to notify
other states which possibly be affected by transboundary releases of radiological safety
significance. The parties must supply information on the occurrence and means of minimizing
its radiological consequences to enable other states to take all possible precautionary
measures.
C. From the viewpoint of the Precautionary Principle9 and Transparency to reinforce
the monitoring and exchange of experiences.
1. The Precautionary Principle
a. Meaning of the Precautionary Principle and It’s Approach
According to 1992 Rio Declaration on Environment and Development
The Precautionary Principle means :
“In order to protect the environment, the Precautionary approach shall be widely applied
by states according to their capabilities. Where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as a reason for postponing
cost-effective measures to prevent environmental degradation.” (Principle 15)
b. The Level of the Precautionary Principle
Whether or not the Precautionary Principle can also apply to the field of nuclear law at
the domestic level? The answer is positive. It informs in Australia, France, Germany, the UK,
the European Union and certain other states at the domestic level. It has also been described
as a principle of international law or applied as such by the Supreme Courts of India and
Pakistan.10 How the precautionary principle is used in each of these countries will differ
according to the context and legal culture, however.
9
P. W. Birnie, A. E. Boyle and C. Redgwell, International Law & the Environment, third Edition, 2009,
P. 152 -- 164.
10
P. W. Birnie, A. E. Boyle and C. Redgwell, supra, P. 159.
8
It should not be assumed that national law and international law on the subject are
necessarily the same. The precautionary principle (approach) is not universally applied: states
have been selective, adopting it in the Climate Change and Biological Diversity Conventions,
but not in the 1994 Nuclear Safety Convention, the 1995 Washington Declaration on
Protection of the Marine Environment from Land-based Activities
c. Normative Character of the Precautionary Principle
Whereas Indian and Pakistani courts are prepared to apply the precautionary principle as
law that impose duties on governments and to spell out precise consequences, most national
legal systems view it only as a principle which governments and legislatures may lawfully
take into account or be guided by. It has thus been relied on by national courts when
considering the legality of laws or decisions or when interpreting and applying them, but not
normally as a legal obligation which can be used to direct or require stronger action by
governments.
d. The Reason Why to Apply the Precautionary Principle
More fundamentally, the consequences of applying a precautionary principle also differ
widely. As formulated in Principle 15 of the Rio Declaration, the precautionary principle
helps us identify whether a legally significant risk exists by addressing the role of scientific
uncertainty, but it says nothing about how to control that risk or what level of risk is socially
acceptable. Those are policy questions which in most societies are best answered by
politicians and by society as a whole, rather than by courts or scientists. Therefore in the stage
of risk management and risk communication applying precautionary principle is significant11.
e. How to Apply the Precautionary Principle to Nuclear Security?
In determining whether and how to apply ‘precautionary measures’, states have evidently
taken account of their own capabilities, their economic and social priorities, the
cost-effectiveness of proposed measures, and the nature and degree of the environmental risk
when deciding what preventive measures to adopt.
2. Transparency (the Formation of Policy about Risk Management)
(1) As formulated in Principle 15 of the Rio Declaration, the precautionary principle
helps us identify whether a legally significant risk exists by addressing the role of scientific
uncertainty, but it says nothing about how to control that risk or what level of risk is socially
11
Matsumoto, The present situation and subject of risk regulation of nuclear energy, Osaka Law
Review, Vol. 63, No. 5, 2014, P. 1458 – 1460.
9
acceptable.12 Those are policy questions which in most societies are best answered by
politicians and by society as a whole, rather than by courts or scientists. Then it is significant
for the Information Disclosure and public participation.
(2) In this sense the precautionary principle may be relied upon by decision-makers and
courts in much the same way that they may be influenced by the principle of sustainable
development.( compound disaster )(needs Precaution.)
(3) (Unexpected.)risk : for example, asbestos is proof against fire, but now is forbidden
because its poison.; Risk management perspectives on the Y2K problem.
D. Nuclear Damage Compensation in East Asia -- In nuclear liability regime, all of the
4 countries, China, Japan, Korea and Taiwan are not members of any nuclear liability
regime (neither Paris Convention nor Vienna Convention and nor CSC regime). How to
solve the nuclear damage problems?
1. Nuclear Damage Compensation in East Asia: China, Japan, Korea, and Taiwan.
(1). China
For nuclear damage compensation, China has not yet join any international
agreements regarding nuclear liability such as “Vienna Convention,” “Paris Convention,” and
“Convention on Supplementary Compensation for Nuclear Damage (CSC).” Moreover, China
has not yet enacted any domestic laws regarding the nuclear liability. The mainly legal
resources are “Official Reply (guidance) of the State Council of the People’s Republic of
China the state council concerning the issues of managing nuclear liability of cooperating
companies, 1986” and “Official Reply (guidance) of the State Council of the People’s
Republic of China the state council concerning the issues of nuclear damage compensation,
2007.” The main content of the Reply in 2007 includes: 1. The operator of nuclear units shall
take the responsible to fully compensate for the damages, including injury, death, property
loss, and environmental damage, caused by nuclear accidents; 2. The maximum amount of
nuclear damage compensation paid by the operators is 300 million RMBs, by other operators
for single accident is 100 million RMBs, and by the government is 800 million RMBs; 3. The
liability for the operator to compensate cannot be exempted under the extraordinary natural
disaster.
However, the Reply does not prescribe the application of laws and the jurisdiction of the court.
It is not clear that who should be responsible for the damage over 300 million RMBs. Finally,
it does not require the operator to have the compulsory liability insurance for the nuclear
damages. All of these are expected to be included into the bill of Atom Energy Law.
12
P. W. Birnie, A. E. Boyle and C. Redgwell, supra, P. 161.
10
(2). Japan:
The basic structure of the Nuclear Damage Compensation Law in Japan is: 1. In pursuant of
the Article 3, paragraph 1, for nuclear damages caused by the operation of nuclear units, the
operator shall be responsible for the compensation (strict liability, concentrated liability,
unlimited liability). For nuclear damage, it means that the effects caused by the radiation of
the nuclear fuel or by the nuclear fission process of nuclear matters. 2. For compensating the
nuclear damage, the operator shall be responsible for having the insurance of nuclear damage
(the private insurance contract) and the recover damage contract (the governmental
compensating contract). 3. If the compensation liability is more than the compensating
measures, the Japanese government will provide assistance. If the nuclear damage is caused
by the extraordinary natural disasters, the government also needs to adopt some certain
reactions.
(3). Korea:
The Nuclear Damage Compensation Law has been enacted in 1969. After amended in
2001, the main content of the law includes: 1. The adoption of limited liability, changing from
the unlimited liability under the Nuclear Damage Compensation Law of 1969 to the 30
million KRWs, as the maximum amount of compensation, for special drawing right (SDR).
But, if the damage is caused by the operator with intent for his action or inaction, the limited
liability does not apply. 2. Adding subjects for nuclear damage compensation, involving fees
for recovering the environmental damages and fees for prevention (including the damages and
additional losses caused by the preventive measures). 3. Enlarging the scope of geography
and EEZ for application and adopting the doctrine of reciprocity for the accidents happening
outside Korea. 4. Deleting the subject under the exempting clause for compensating
obligation, the extraordinary natural disaster. 5. The new rules for extinctive prescription and
limitation period. There were no rules for extinctive prescription and limitation period in the
past. After amending, the limitation period for sickness, injury or death is 30 years, and others
are 10 years.
(4). Taiwan
In Taiwan for the purpose to reform the nuclear liability system, a draft of the act on
compensation for nuclear damage raises the amount of financial security for compensation
and extends the time limit for latent injuries13.
13
See Cherng, Ming-Shiou, The international nuclear liability system and evaluation of the new draft
of the Nuclear Damage Compensation Law Taiwan, in: Taiwan Energy Law Research Association
(TELRA), The system of nuclear law I -- Safety Regulation of Nuclear Energy and Damage
Compensation for Nuclear Responsibility, Taipei, 2014, P. 376 – 390.
11
a.
According to Article 24 of the Nuclear Damage Compensation Law (promulgated
and became effective on 26 July 1971), the liability of a nuclear installation operator for
nuclear damages arising out of each single nuclear incident shall be limited to four billion two
hundred million NTD (equivalent to USD $ 140,000,000). New draft increases this amount
from NTD $4,200,000,000 to NTD $ 15,00,000,000 (equivalent to USD $ 500,000,000).14
b.
According to the Nuclear Damage Compensation Law, Article 28:
Claims of compensation for nuclear damage shall be extinguished if an action is not
brought within three years after knowledge of the damage and of the nuclear installation
operator liable for the damage; however the period shall in no case exceed ten years from the
nuclear incident.
c. The draft changes the period from 「within three years after knowledge」 to
「within ten years after knowledge」;「 no case exceed ten years from the nuclear incident」
 to「no case exceed thirty years from the nuclear incident」
2. How to solve the nuclear damage problems among the 4 countries?
For the nuclear damage compensation in East Asia, the complete legal system, including the
jurisdiction and the applicable law, shall be ensured. Although all of these four countries,
discussed above, are not members of any nuclear liability regime (neither Paris Convention
nor Vienna Convention and nor CSC regime), we should make an agreement with each other
upon the general understanding of legal terms, such as the definition of damage and
compensation, and some other legal principles. Moreover, we also need to develop the system
of CSC in the near future.
III. Is it Necessary to Establish an East Asian Nuclear Safety and Liability Regime
The probability, necessity, and reasons of the establishment of the nuclear damage
compensation regime in East Asia15
1. In reality, once the domestic nuclear damage compensation involves foreigners, every court
in different countries would apply different laws and make different verdicts. Hence, just like
the international nuclear liability convention, it is necessary to establish a worldwide and
uniform regime for nuclear damage liability based on the relationship of convention16. As the
14
Nuclear Damage Compensation Law Draft(2011)
See also Stephen G. Burns, A Global Nuclear Liability Regime: A Journal or a Destination?
International Nuclear Law Association – 2012 Congress – 8 -- 11 October 2012-Manchester, England,
Page 6.
16
See Nobert Pelzer, Die Haftung für Nuklearschäden nach japanischem Atomrecht aus internationaler
Sicht, Zeitschrift für Japanisches Recht 32 (2011), S. 100.
12
15
same reason, there is also the necessity to establish the nuclear damage compensation regime
in East Asia. Furthermore, before the establishment of the worldwide and uniform regime for
nuclear damage liability, it will be quite practical to construct the regional regime of safety
and liability and the nuclear damage compensation regime in East Asia can be a good starting
point.
2. Vienna Convention, Paris Convention, and Convention on Supplementary Compensation
for Nuclear Damage (CSC) all embrace the uniform liability principle. Not only for the
members of these international conventions, but the non-contracting parties can also adopt the
uniform liability principle into the domestic legal system. Therefore, although the four
countries in East Asia are not contracting parties to these three main conventions of nuclear
liability, they can follow the principle as well. As the result, it is possible to have the nuclear
liability regime in East Asia.
3. The legal systems of atom energy law in these four countries in East Asia are almost the
same as the international legal system for nuclear damage liability17 (including Strict liability,
Exclusive liability, Provision of financial security, Unity of jurisdiction, Non-discrimination,
Principles). However, because of non-contracting parties to those international conventions,
the four countries are not restricted by those conventions. Hence, the international community
should invite them to join and then legally obey the regulations of the international nuclear
liability conventions. Before that, it might be the prerequisite that these four countries can
establish their own legal system of nuclear damage compensation in East Asia through
multilateral agreements. Of course, the range of compensation, the exemption, extinctive
prescription and limitation period, and the jurisdiction still need to be further discussed by the
four countries. If these subjects are different from the domestic legal system of each country,
the principle of reciprocity, as the solution, can be applied.
4. China and Taiwan signed a bilateral Nuclear Power Safety Agreement in October 2011 for
promoting cross-Strait cooperation in the monitoring of nuclear power safety, and to
safeguard the health of both the environment and residents on both sides. China and Taiwan
signed a bilateral Nuclear Power Safety Agreement in October 2011 for promoting
cross-Strait cooperation in the monitoring of nuclear power safety, and to safeguard the health
of both the environment and residents on both sides. This cross-Strait Nuclear Power Safety
Agreement came into force on 29 June 2012. The Mainland China’s Association for Relations
Across the Taiwan Straits (ARATS) and Taiwan’s Straits Exchange Foundation (SEF) are
prepared to implement the agreement, according to an ARATS statement.
17
Nobert Pelzer, a.a.O., S. 101f.
13
In addition to the signing of the nuclear power safety agreement with Mainland China,
Taiwan should try to pursue cooperation with other East Asian countries with nuclear power
plants such as Japan and Korea. Finally, for the nuclear safety and nuclear damage
compensation, we need to reconcile the close relationship between domestic law and
international law. Hence, establishing the legal regime of the nuclear safety and nuclear
damage compensation in East Asia will be the necessity for us.18
IV. CONCLUSION
The Following Issues in the Aftermath of Fukushima Daiichi Disaster:
The Perspective of Nuclear Safety and Liability Regime in East Asia
1. The regulatory agency of nuclear safety shall be independent from other governmental
authorities, kept separate from the agency promoting the use of nuclear energy, and delegated
more power for further regulation.
2 From the perspective of the domestic nuclear safety regulation, atom energy law and
environmental protection law shall be reconciled under enforcement and compliance19. Taking
the legal application as an example, if something has been regulated under the atom energy
law, environmental protection law might not apply in the same situation.
3 For the nuclear damage compensation in East Asia, the complete legal system, including
the jurisdiction and the applicable law, shall be ensured. Although all of these four countries,
discussed above, are not members of any nuclear liability regime (neither Paris Convention
nor Vienna Convention and nor CSC regime), we should make an agreement with each other
upon the general understanding of legal terms, such as the definition of damage and
compensation, and some other legal principles. Moreover, we also need to develop the system
of CSC in the near future.
4 The main reason why Fukushima Daiichi disaster happened is because of earthquake and
tsunami. Therefore, the issue of how to distinguish between the damage from the nuclear
accident and the damage from earthquake and tsunami, including the issues of compensation,
would be worth to discuss.
See Chen, Chun-Sheng, Taiwan’s nuclear energy and energy security, INLA WG1 on Nuclear
Safety- Licensing and Decommissioning, 18 October 2013,Paris, Page 6.
19
Shigeru Takahashi, Reform of the system of nuclear safety regulation after Fukushima Daiichi
Disaster, in: Taiwan Energy Law Research Association (TELRA), The system of nuclear law I -- Safety
Regulation of Nuclear Energy and Damage Compensation for Nuclear Responsibility, Taipei, 2014, P.
113 – 114.
14
18
5 There is also a need to make clear that the relationship of the nuclear damage
compensation law and the civil law20.
6 For the nuclear safety and nuclear damage compensation, we need to reconcile the close
relationship between domestic law and international law. Hence, establishing the legal regime
of the nuclear safety and nuclear damage compensation in East Asia will be the necessity for
us.
20
Toyohiro NOMURA, Japanese Law of Liability for Nuclear Damage and its Evolution after the
Fukushima Accident, International Nuclear Law Association – 2012 Congress – 8 -- 11 October
2012-Manchester, England, Page 1-3.
15