https://orcid.org/0000-0003-1991-1923
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Abstract
This paper explores the legal policy of nuclear damage compensation laws. As a specialised sector of nuclear law, the legal regimes on nuclear civil liability aim to provide timely and effective compensation to third parties, while also addressing the special policy concern of ensuring the sustainable development of the global or national nuclear industry. The paper examines the international methods of establishing major principles of liability with the corresponding rules and regimes to balance the interests of the parties involved. Comparatively, there is great uncertainty surrounding Chinese rules and principles of nuclear liability. Therefore, this paper suggests accelerating the enactment of a Chinese law specifically addressing nuclear damage compensation, aligning it with the national strategy and prospects of civil nuclear energy in China. Additionally, issues closely related to nuclear damage compensation, such as nuclear insurance policies, operation and supervision of national public funds and the use of alternative dispute resolution to settle nuclear disputes, are also discussed.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1 Such discussion and assessment could be found, for example, in the following sources: IEEJ, ‘Impacts on Overseas Nuclear Power Development Policies by the Severe Accident at Fukushima Dahchi Nuclear Power Station’ (2011) <https://eneken.ieej.or.jp/data/3782.pdf> accessed 26 July 2023; WNA, ‘Anniversary: Reflecting on the Impacts of Fukushima Daiichi’ (2021) <www.world-nuclear.org/focus/fukushima-daiichi-accident/anniversary-reflecting-on-the-impacts-of-fukushima.aspx> accessed 26 July2023; NEA, ‘Fukushima Daiichi Nuclear Power Plant Accident, Ten Years On Progress, Lessons and Challenges’ (2023) <www.oecd-nea.org/jcms/pl_56742/fukushima-daiichi-nuclear-power-plant-accident-ten-years-on> accessed 20 June 2023; Lincoln Davies,‘Beyond Fukushima, Disaster, Nuclear Energy, and Energy Law’ (2011) 2011 BYU L. Rev. 1937
2 NEA, Legal Frameworks for Long-Term Operation of Nuclear Power Reactors (OECD Publishing 2019) 3
3 WNA, ‘World Energy Needs and Nuclear Power’ updated Oct. 2022 <www.world-nuclear.org/information-library/current-and-future-generation/world-energy-needs-and-nuclear-power.aspx> accessed 20 June 2023
4 ‘The conception of law as a means to social ends and not as an end in itself; so that any part needs constantly to be examined for its purpose, and for its effect, and to be judged in the light of both and of their relation to each other’. See Karl N. Llewellyn, ‘Some Realism About Realism – Responding to Dean Pound’ (1931) 44 Harv. L. Rev. 1222, at 1236.
Underlying any scientific study of the law … will lie one fundamental postulate that human laws are devices, tools which society uses as one of its methods to regulate human conduct and to promote those types of it which are regarded as desirable. If so, it follows that the worth or value of a given rule of law can be determined only by finding out how it works, that is, by ascertaining, so far as that can be done, whether it promotes or retards the attainment of desired ends.
See Walter W. Cook, ‘Scientific Method and the Law’ (1927) 13 A.B.A. J. 303, at 308.
5 OSTI.GOV, Technical Report: Theoretical Possibilities and Consequences of Major Accidents in Large Nuclear Power Plants (1957) <www.osti.gov/biblio/4344308> accessed 20 June 2023
6 Carlton Stoiber and others, Handbook on Nuclear Law (IAEA 2003), at 107
7 Ibid, 107–8
8 OECD, Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960, as amended by the Additional Protocol of 28 January 1964, by the Protocol of 16 November 1982 and by the Protocol of 12 February 2004 <https://oecd-nea.org/jcms/pl_79139/paris-convention-consolidated?preview=true> accessed 20 June 2023
9 OECD, Convention of 31 January 1963 Supplementary to the Paris Convention of 29 July 1960, as amended by the additional Protocol of 28 January 1964, by the Protocol of 16 November 1982 and by the Protocol of 12 February 2004 <https://oecd-nea.org/jcms/pl_81342/unofficial-consolidated-text-of-the-brussels-supplementary-convention-english-and-french?preview=true> accessed 20 June 2023
10 The 2004 Protocols to Amend the Paris Convention and Brussels Supplementary Convention entered into force on 1 January 2022. For the latest status of the two conventions, see, respectively, <https://oecd-nea.org/jcms/pl_31798/paris-convention-latest-status-of-ratifications-or-accession> and <https://oecd-nea.org/jcms/pl_31514/brussels-supplementary-convention-latest-status-of-ratifications-or-accessions> both accessed 20 June 2023
11 See art 21 of 2004 Protocols of the Paris Convention. The Brussels Supplementary Convention is open only to the contracting parties of the Paris Convention. See art 19 of 2004 Protocols of Brussels Supplementary Convention.
12 IAEA, The Vienna Convention on Civil Liability for Nuclear Damage, adopted 21 May 1963, entry into force 12 November 1977, <www.iaea.org/publications/documents/infcircs/vienna-convention-civil-liability-nuclear-damage> accessed 20 June 2023
13 IAEA, Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage, adopted 12 September 1997, entered into force 4 October 2003 <www.iaea.org/publications/documents/infcircs/protocol-amend-vienna-convention-civil-liability-nuclear-damage> accessed 20 June 2023
14 IAEA, Convention on Supplementary Compensation for Nuclear Damage, adopted 12 September 1997, entered into force 15 April 2015 <www.iaea.org/topics/nuclear-liability-conventions/convention-supplementary-compensation-nuclear-damage> accessed 20 June 2023
15 Articles 21 and 24 of the Vienna Convention 1963 once provided that it was open only to countries participating in the 1963 Vienna International Conference on Nuclear Damage, to the member states of UN and specialised agencies, and to the member states of IAEA. However, such provisions were deleted by the 1997 amendment.
16 To eliminate the applicable conflict of the two systems, the IAEA formulated the Joint Protocol on the Application of the Vienna Convention and the Paris Convention in 1988 (adopted 21 September 1988, entered into force 27 April 1992), which pointed out that the state parties could apply the conventions in a ‘choose one’ way, after an accident. <www.iaea.org/topics/nuclear-liability-conventions/joint-protocol-relating-to-application-of-vienna-convention-and-paris-convention> accessed 20 June 2023
17 NEA, Nuclear Liability <https://oecd-nea.org/jcms/pl_31319/nuclear-liability> accessed 20 June 2023
18 Marianna Novotna and Peter Varga, ‘International and Supranational Aspects of Nuclear Liability’ (2017) 15 Teises Apzvalga Law Review 38, at 42
19 OECD, Nuclear Liability, 2023 <https://oecd-nea.org/jcms/pl_31319/nuclear-liability>; Chen Gang and Zhao Wei, Laws and Regulations on Civil Liability for Nuclear Damage (China Law Publishing House 2018) at 100 (in Chinese)
20 See Michael G. Faure and Tom Vanden Borre, ‘Compensating Nuclear Damage: A Comparative Economic Analysis of the US and International Liability Schemes’ (2008) 33(1) William & Mary Environmental Law and Policy Review 219, at 241; Christian Raetzke, ‘Nuclear Third-Party Liability in Germany’ (2016) 97 Nuclear Law Bulletin 9, at 14; Masato Dogauchi, ‘The Aftermath of the Fukushima Dai-Ichi Nuclear Accident: How Japanese Lawyers Have Been Playing Their Roles with Regard to the Nuclear Damage’ (2018) 61 Japanese Yearbook of International Law 284, at 287
21 Novotna and Varga (n 18) 44
22 See Jing Liu and Michael Faure, ‘Compensation for Nuclear Damage: Comparison among the International Regime, Japan and China’ (2016) 16(2) International Environmental Agreements: Politics, Law and Economics 165, at 169; Liu Jiu, ‘The Development of International Legal Mechanism of Civil Liability for Nuclear Damage’ (2022) 5 Law Science Magazine 106, at 109 (in Chinese)
23 See, comparatively, art 9 of Paris Convention 1960 and art 9 of 2004 Protocol to Paris Convention 1960; art 4(3) of Vienna Convention 1963 and art 4.3 Vienna Convention 1997.
24 Art 3(5)(b) of CSC 1997:
Except insofar as the law of the Installation State may provide to the contrary, the operator shall not be liable for nuclear damage caused by a nuclear incident caused directly due to a grave natural disaster of an exceptional character.
25 Article 3(1) of the Law on Compensation for Atomic Energy Damage in Japan stipulates that operators may be exempted from liability for damage caused by natural disasters of exceptional character.
26 See Liu and Faure, ‘Compensation for Nuclear Damage’ (n 22) at 175
27 Guo Nana, ‘Nuclear Liability of the Operator: A Case Study of Fukushima Nuclear Accident’ (2019) 5 Journal of Japanese Legal Studies 39, at 57
28 Marija Ampovska, ‘Participation by Developing Countries in the Convention on Supplementary Compensation for Nuclear Damage: A Western Balkans Perspective’ (2016) 7 Balkan Social Science Review 31, at 34
29 See Faure and Vanden Borre (n 20) at 244
30 See Hu Bangda, ‘Between Safety and Development: The US Experience of Nuclear Energy Legal Regulation and Its Implications’ (2018) 30(1) Peking University Law Journal 208, at 208
31 Christian Raetzke, ‘Nuclear Third-Party Liability in Germany’ (2016) 97 Nuclear Law Bulletin 9, at 20; Liu and Faure, ‘Compensation for Nuclear Damage’ (n 22) at 173
32 Liu and Faure, ‘Compensation for Nuclear Damage’ (n 22)
33 Art 3 of the 2004 Protocol of the Paris Convention
34 Ibid
35 Art III.1.a of the CSC 1997; art V.1.a &b of Vienna Convention 1997
36 Art III.1.b of the CSC 1997
37 Art 6 (f) of the 2004 Protocol of the Paris Convention; art X of Vienna Convention 1997; art 10 of ANNEX the CSC 1997
38 Art IX (1) of the CSC1997
39 Art IX (2) of the CSC1997
40 For example, the maximum amount of operators’ nuclear liability has risen from 15 million euros in Paris Convention 1960 to 700 million euros[AQ5] in 2004 Protocol to Paris Convention 1960.
41 Initially, the Paris Convention 1960 and the Vienna Convention 1963 compensated for the ‘loss of life or personal injury’ and ‘loss or damage of property’. Since 1997, the Vienna System added ‘the environmental loss or damage’ with certain limitation, which in turn influenced the Paris System and most national laws on nuclear damage compensation and lead to a broader scope of legal nuclear damage. Nevertheless, there are exceptions. For example, the law of Taiwan does not recognise environmental damage, and the law of the United Kingdom does not recognise the unattributable environmental damage, pure economic loss and cost of preventive measures.
42 The grave natural disaster with an exceptional character has been excluded as a legal exemption by most conventions. See Section 2.2.1 para 1.
43 Yun Zhou and others, ‘Is China Ready for Its Nuclear Expansion?’ (2011) 39 Energy Policy 771, at 772–3
44 See IAEA, ‘PRIS Report: Country Nuclear Power Profiles – China’ (2022) <https://cnpp.iaea.org/countryprofiles/China/China.htm> accessed 20 June 2023
45 See CNEA, ‘National Nuclear Power Operation 2022’ (2023) <https://china-nea.cn/site/content/42324.html> accessed 20 June 2023
46 See China State Council, 14th Five-Year Plan for National Economic and Social Development and the Long-Term Plan for 2035, 13 March 2021 <http://www.gov.cn/xinwen/2021-03/13/content_5592681.htm?pc> accessed 20 June 2023
47 Peng Feng, ‘A Reflection on the Legislation of China’s Atomic Energy’ (2011) 69 (18) J of Shanghai Univ (Social Sc. Edition) 69, at 73 (in Chinese)
48 Art 93 of Nuclear Safety Law: ‘Nuclear Accident’ refers to any radioactive, toxic, explosive or other hazardous accident or series of accidents occurring in the nuclear installation or during the transport of nuclear materials into or out of a nuclear installation.
49 Art 1 of Nuclear Safety Law 2018,
The law is developed for purposes of guaranteeing nuclear safety, preventing and responding to nuclear accidents, safely using nuclear energy, protecting the safety and health of the general public and workers, protecting the eco-environment, and promoting sustainable economic and social development.
50 See Liu Jing and Michael Faure, ‘Compensating Nuclear Damage in China’ (2012) 11 Wash. U. Global Stud. L. Rev. 781, at 794–797
51 According to art 2 of Law on Legislation 2015, formal legal sources in China include laws, administrative regulations, local statutes, autonomous regulations and statutes.
52 According to the judicial explanation of the Supreme People’s Court of PRC (SPC), the normative documents can only be applied as a source of argument, if being determined to be necessary and effective by the courts, See Supreme People’s Court of PRC, ‘Provisions of the Supreme People’s Court on the Citation of Laws, Regulations and Other Normative Legal Documents in Judgment Documents’ (2009) <www.court.gov.cn/fabu-xiangqing-73.html> accessed 25 June 2023
53 In 1986, the foreign suppliers were concerned about the Chinese nuclear liability framework, during contract negotiations for the construction of the Daya Bay power plant in 1985. In response to this concern, the Ministry of Nuclear Industry, the National Nuclear Safety Bureau, and the State Council Atomic Energy Board requested the CNSC to issue instructions of the major principles and rules of nuclear liability. Then, the CNSC issued its answer and opinion, which was the1986 Reply. In 2007, China planned to introduce Generation III technologies from AREVA and Westinghouse. The concerns of foreign suppliers rose again, resulting in the publication of the 2007 Reply. See Liu (n 50) 794–795. [AQ8]
54 Rule 2 of the 1986 Reply
55 Rule 2 of the 2007 Reply; Rule 2 of the 1986 Reply
56 Rule 9 of the 2007 Reply
57 Art 90(2) of the Nuclear Safety Law of 2018
58 Rule 3(1) of the 1986 Reply
59 Rule 7 of the 2007 Reply. The 2007 Reply set caps depending on operators: the operators of nuclear power plants, and the operators of spent fuel storage, transportation, and post-treatment are liable up to RMB 300 million; other operators are liable up to RMB 100 million.
60 Estimated with the exchange rate at the time of writing, the amount of the Paris System (700 million euro) is 18 times than that of China, and the amount of the Vienna System (300 million SDR) is 9.4 times than that of China.
61 Rule 3(2) of the 1986 Reply
62 Rule 7 of the 2007 Reply
63 See China National Energy Administration, ‘Implementation Plan of Working Mechanism for Scientific Development Coordination of Nuclear Power Enterprises’ (2013) <http://zfxxgk.nea.gov.cn/auto91/201310/t20131030_1717.htm> accessed 25 June 2023
64 See China Nuclear Insurance Pool, ‘Nuclear Insurance Policy’ (2012) <http://www.chinapool.org.cn/zghbxgtt/gywm10/hbxyw90/2022010703522277824/index.html> accessed 25 June 2023
65 Damage caused by war, insurrection, grave natural disasters, and terrorism are excluded by the insurance policy: ibid
66 See Hu Bangda, ‘The Construction of Administrative Mediation Mechanism for Nuclear Damage Compensation Disputes in China: Based on the Investigation of Japan’s Legislation and Practice’ (2022) 28(5) J Cent South Univ (Social Sciences) 29, at 33–34 (in Chinese)
67 As of the end of 2016, the Nuclear Power-Related Damage Claim Resolution Center, established in 2011 to handle the disputes arising from the Fukushima Daiichi accident, achieved full resolution in nearly 16,000 cases, which may be seen as a demonstration of the potential for ADR. Daniel H. Foote, ‘Japan’s ADR System for Resolving Nuclear Power Related Damage Disputes’ 12 2017.11东京大学法科大学院口一ビュ一, <http://www.sllr.j.u-tokyo.ac.jp/12/papers/v12part07(foote).pdf> accessed 20 June 2023
68 For the definition of ‘Administrative Mediation’, see <https://govt.chinadaily.com.cn/s/201804/02/WS5b78858b498e855160e8f60e/administrative-mediation.html> accessed 25 June 2023
69 For example, the disputes arising from the damage caused by the Fukushima Daiichi accident have not yet been fully resolved, and the Japanese government’s decision to dump nuclear wastewater from the accident into the ocean is causing panic around the world, and challenging the legal regimes on nuclear liability.
70 Lu Wei-wei, ‘Implication of International Legislation on Nuclear Damage Compensation on China’ (2017) 35(3) Journal of Hainan University 128 (in Chinese)