Die Haftung für Nuklearschäden nach japanischem Atomrecht aus internationaler Sicht
Abstract
In ZJapanR/J.Japan.L. 31 (2011), Julius Weitzdörfer published a thorough treatise on the liability issues connected with the Fukushima nuclear accident. As a complement to his considerations, this article deals with the international aspects of the liability case.
Nuclear liability law is based on the international nuclear liability Conventions (i.e. the Paris Convention, the Vienna Convention, and the Convention on Supplementary Compensation for Nuclear Damage) and is thus a field of law that is internationally harmonized to a great extent. Japan is not a party to any of the Conventions, but those principles nevertheless became elements of the national legislation of Japan and of numerous other non-contracting states. Even without formal treaty obligations, the Japanese nuclear liability law forms an integral part of the international nuclear liability regime. Compensating Fukushima claims at the national Japanese level also means testing the international liability principles.
Among the leading international liability principles are a unified definition of the ‘nuclear incident’ that triggers liability, the principle of liability without fault on the part of the operator of a nuclear installation, and the principle of exclusive liability of the operator of a nuclear installation (legal channelling of liability). If one looks at the corresponding concepts of the Japanese law a little more closely, there might be doubts as to whether the Japanese legislator understands these principles identically to the international interpretation. In particular, the exclusive liability of the operator of a nuclear installation does not entirely exclude claims for compensation based on other liability provisions. But that is exactly the purpose of legal channelling of liability.
The exoneration under Japanese law from liability for damage caused by a grave natural disaster of an exceptional character is problematic. This exoneration and the exoneration from liability for damage due to hostilities, etc. are both legally unsound and, from a practical and political point of view, without any use. They should be deleted from both the Japanese law and the international conventions. The Japanese nuclear liability law, on the other hand, provides a claims handling procedure that might be used as an example at the international level. The law establishes a Claims Reconciliation Committee to optionally settle claims out of court. Especially in mass tort litigations, such a procedure might speed up the payment of compensation and contribute to regaining social and political peace.
There are signals that Japan will adhere to the Convention on Supplementary Compensation for Nuclear Damage in the near future. This would require its nuclear liability legislation to comply with the Annex to that Convention. It is questionable whether there is such compliance.
