Die Haftung für Nuklearschäden nach japanischem Atomrecht – Rechtsprobleme der Reaktorkatastrophe von Fukushima I

Abstract

This paper is intended to give a first comprehensive overview of the legal problems and corresponding political implications of the largest liability case in Japanese history – the Fukushima Dai’ichi nuclear disaster. Starting with a survey of the relevant provisions of nuclear liability law, the paper draws upon legal precedents, Japanese legal scholarship and press reports, as well as the first report of the newly established Nuclear Damage Dispute Resolution Panel.
Amongst other issues, the paper attempts to establish who is liable by law, who will actually have to carry the burden of the damages estimated to be as high as 86 billion Euro, and which victims of the catastrophe (e.g. the evacuated population, affected fishermen, farmers or the power plant staff) can claim compensation. Other causes of action beyond nuclear liability law, e.g. from labour and social law, are also investigated. In particular, the question is asked whether the state could additionally be made liable because of insufficient nuclear energy supervision. Furthermore, it has to be clarified which damages can be compensated at all, such as loss of profits because of rumours. Despite the existing legal regulations, the government and the judiciary have to resolve a number of practical issues, including whether the earthquake can be considered an “extraordinary natural disaster”, which would lead to the exclusion of liability. Another pressing issue is how the claims of the thousands of evacuees can be handled in a swift and just manner and how financial means are found once the funds of the nuclear operator are exhausted.
Since the facts are as yet incomplete and political negotiations are still in process, one must currently rely on hypotheses, but even so it is possible to outline an extrajudicial procedure involving government-regulated preliminary compensation payments. Also with regard to material law, the legal solutions seem to be determined by politics to a considerable extent. Despite the unlimited liability of the nuclear operator under the code, the economic burden falls primarily on the treasury, which has entered indemnification agreements and is to pay state aid to the utility. Moreover, according to cabinet plans, electric power companies and financial institutions (as yet without a legal basis) are required to “voluntarily” contribute to a nuclear damage compensation fund established for the victims. The preliminary results, which are above all meant to serve as a stimulus for discussion, are finally assessed through a critical legal and economic lens. This assessment leads to comparisons to procedural and constitutional problems that have occurred during other crises, such as the oil spill in the Gulf of Mexico in 2010 or the moratorium on nuclear energy in Germany.