Soalan: Bincangkan setakat manakah undang-undang mengenakan tanggungan kerosakan nuklear nuclear di Malaysia + pengecualian tanggungan

Contents

I. Introduction....................................................................................................................1

II. When nuclear liability arised?........................................................................................2

III. Nuclear Liability in Malaysia.........................................................................................3

IV. Exception to liability......................................................................................................7

V. Conclusion......................................................................................................................9

I. INTRODUCTION

1986 Chernobyl accident proves that nuclear accident might cause damage of extreme

magnitude. The detrimental effects of such accident might extend into regions far beyond

territory of accident state which might cause damage to several states. In situation for

which highest standard of safety has been achieved, occurrence of nuclear and radiological

accidents cannot be completely excluded.

Therefore, legal regimes must be provided by legislators to compensate for nuclear

damage. First step is to determine whether the existing tort law governs the issue of

compensation for nuclear damage. States also recognized that possibility of trans-boundary

nuclear damage required international nuclear liability regime hence international nuclear

liability conventions come into picture to facilitate the bringing of actions and enforcement

of judgments without hindrance by national legal systems. For example, Vienna

Convention on Civil Liability for Nuclear Damage and Convention on Supplementary

Compensation for Nuclear Damage which provides additional compensation out of

international public fund.

State has 2 options for implementation for convention at domestic level. They may

transform content of convention into national liability law with advantage that national

legislative technique and language can be used. The other option is to implement the

convention directly as self-executing instrument. However, in Malaysia, we did not signed

any said conventions relating to liability of nuclear damage but we have our specific Act

name Atomic Energy Licensing Act 1984 to govern such matters

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II. WHEN NUCLEAR LIABILITY ARISED?

Obviously, the liability raised if nuclear installations causes nuclear incident which

produced nuclear damages.

A. DEFINITION OF NUCLEAR INSTALLATIONS (CONVENTION ON NUCLEAR

SAFETY )

Any factory using nuclear fuel for the production of nuclear material or any

factory for the processing of nuclear material, and any facility where nuclear

material is stored,

B. DEFINITON OF NUCLEAR ACCIDENT ( CONVENTION ON NUCLEAR SAFETY )

any occurrence, or any series of occurrences having the same origin that

causes nuclear damage but only with respect to preventive measures creates a

grave and imminent threat of causing such damage.

C. DEFINITION OF NUCLEAR DAMAGES

1963 VIENNA CONVENTION ON CIVIL LIABILITY FOR NUCLEAR DAMAGE

1. Form of damages

a) loss of life or personal injury

b) loss of or damage to property

c) damages which its extent will be determined by law of competent court : (non-exhaustive list)

(1) economic loss arising from damage referred to in 1 & 2

(2) the costs of measures or reinstatement of impaired environment

2. There must be a causal link between a certain nuclear installation

and a certain occurrence and the damage suffered.

a) The causal link has to be proved by the person claiming

compensation.

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b) The conventions do not contain any provisions regarding

causality; this issue is left to the law of the competent court (i.e. to

national law), so States may apply the principles of causality applied in

their national law.

MALAYSIAN ATOMIC ENERGY LICENSING ACT 1984

3. Non-nuclear damage deemed nuclear damage : Section 54

Whenever damage other than nuclear damage have been caused by a nuclear

incident such damage shall, to the extent that it is not reasonably separable

from the nuclear damage, be deemed to be nuclear damage caused by that

nuclear incident.

This provision is pari materia with Article 4(4) of Vienna Convention.

III. NUCLEAR LIABILITY IN MALAYSIA

Nuclear Liability in Malaysia governed by Atomic Energy Licensing Act 1948 (Act 1948).

In term of jurisdiction, Section 50 Provides that this Act shall not affect the liability in S.

46(2)(b) which liability for nuclear damage the conveyance in which the nuclear material

involved was carried at the time of the nuclear incident.

A. S. 47 (1) : CAUSE OF ACTION

A claimant shall fulfill at least one of the following causes of action to claim liability

against any person concerned to the nuclear damage

a) Such right to claim provided in a written contract between the

claimant and IO

b) against the person who has acted or omitted to act with intent

to cause nuclear damge; or

c) against the person who stole or unlawfully received the nuclear

material which subsequently causing the nuclear incident.

Note: Sub (a) and (b) are pari materia with Article 10 (a) and (b) of Vienna

Convention.

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B. INSTALLATION OPERATOR AND HIS LIABILITY

Nuclear installation must be operated by someone, that person called as

Intallation Operator (IO).

1. S. 42 (a): Definition of IO

a person licensed under this Act by the appropriate authority as the

operator of a nuclear installation;

2. S. 60 : IO must have financial security

In order to get license, IO must secures and maintains insurance or

other financial security covering his liability for nuclear damage under

this Act.

3. Who else considered as IO ?

S. 51 : Carrier of nuclear material or person handling radioactive waste

designated is IO

The appropriate authority may designate a carrier of nuclear material

or a person handling radioactive waste upon request from them

consented by the IO concerned. Upon such designation they shall be

considered as an installation operator for the purposes of this Part.

4. Liability of IO

S. 43 (1): IO will be liable it is proven before the court that nuclear damage

has been caused by a nuclear incident in

a) in his nuclear installation;

b) involving nuclear material coming from his nuclear installation

AND occuring before another IO has taken charge of the nuclear

material; OR

c) involving nuclear material sent to his nuclear installation, AND

occurring , after he has taken charge of the nuclear material:

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Section 43 (2) : Liability of IO (specific in the course of carriage )

IO will be liable if it is proven before the court that the damage has been

caused by a nuclear incident involving nuclear material in the course of

carriage

a) to his nuclear installation from a place outside Malaysia from

the time that the conveyance enters Malaysia; or

b) from his nuclear installation to a place outside Malaysia up to

the time that the conveyance leaves Malaysia

Section 43(3) : IO will not be liable under Section 43(2) if:

a) there is any any bilateral or multilateral arrangement to the

contrary between the Gov of Malaysia and the government of the

country related to the carried nuclear material or

b) there is any applicable provision in force to the contrary

in an international convention which signed by Government of

Malaysia and the government of the country related to the nuclear

carried material

where there is arrangement or convention to the contrary in force, the liability

of the installation operator and all other persons shall be determined in

accordance with the contrast one.

5. S. 45: Nature of Liability (Absolute and Exclusive)

The liability of the installation operator for any nuclear damage shall be

absolute unless any provided exception in this Act applied.

This provision is in line with Article 4 (1) of Vieanna Convention.

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C. SECTION 44 (1) : LIABILITY OF TRANSPORTER FOR NUCLEAR DAMAGE

FROM NUCLEAR MATERIAL IN TRANSIT

Where nuclear material is being carried through Malaysia in transit on its way to its

intended destination outside Malaysia and a nuclear incident occurs in Malaysia, the

person licensed to transport the nuclear material by the competent authority in the

country from which the nuclear material is being carried out of shall be liable for any

nuclear damage caused.

D. EVALUATION OF NUCLEAR DAMAGE

1. S. 57 : Investigation of Nuclear Incidents

(1) Any nuclear incident shall be reported to the Board. The IO shall provide

the Board with all information which it requires with a view to evaluating the

extent of nuclear damage involved.

(2) The Board shall make an investigation of

the cause & the extent of the nuclear damage of the nuclear incident &

to the extent that the Board deems it to be in the public interest,

the Board’s findings may be made available to the public and to the parties

involved

2. S . 58 : Compulsory Examination and treatment

After the occurrence of a nuclear incident, the Board may

require any person suspected or likely to be affected by exposure to

ionizing radiation to be medically examined

cause a post-mortem examination to be made on anyvcorpse where the

death is suspected to have been caused by a nuclear incident or

exposure to ionizing radiation.

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E. GOVERNMENT’S INTERVENTIONS

1. S. 48 : Government’s right to claim compensation for nuclear

damage to environment

Where there is any nuclear damage to the environment, Government of

Malaysia shall make a claim for compensation if there is any segment of the

environment that is damaged is within the jurisdiction of the Government of

Malaysia

2. S. 61 : Government’s right to indemnify the claim of nuclear

damage

The Government of Malaysia may, indemnify the IO’s liability to the extent

that the yield of insurance or other financial security is inadequate to satisfy

such claims provided , shall not in the aggregate exceed the maximum amount

established under section 59 for any one nuclear incident.

IV. EXCEPTION TO LIABILITY

A. S. 46 (1) : WAR

no person shall be liable for any nuclear damage caused by a nuclear incident

directly due to an act of armed conflict, hostilities, civil war, insurrection.

The provision is pari materia with Article 4(3)(a) of Vienna Convention.

B. S. 46 (2) (A): HIS OWN NUCLEAR INSTALATIONS

IO is not liable if the nuclear damage occurred in his nuclear installations

C. S. 49: NEGLIGENCE

If the IO proves that the nuclear damage resulted wholly or partly either from

the gross negligence of the claimant who has intent to cause damage, the court

may relieve the IO from paying compensation in respect of the damage

suffered by the claimant.

The same exception provided in Article 4(2) of Vienna Convention.

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D. FORMS OF LIMITATION

1. Amount of claim

a) S. 59 : the liability of an IO for nuclear damage shall be limited

to an amount equivalent to 50 million ringgit for any one nuclear

incident. The amounts shall not include any interest or costs awarded

by the court in actions for compensation for nuclear damage.

In contrast, Article 7 (1) (a) of 1998 Protocol to Amend the 1963

Vienna Convention on Civil Liability for Nuclear Damage (“1998

Protocol”) provides the liability of IO may be limited by the

Installation State for any onenuclear incident not less than 300 million

SDR

b) S. 65 : When it appears that the nuclear damage may exceed the

limit of liability, and upon application by the Government of Malaysia

where it intends indemnify, the court may issue such orders to assure

the equitable distribution of compensation, including orders

apportioning the payments to be made to claimants.

2. S. 63 : Prescription of time

rights to compensation under this Act shall cease after twenty years from the

date of the nuclear incident UNLESS the claimants may amend his claim to

take into account any aggravation of the damage, even after the expiry of that

period AND final judgment has not been entered in the case.

In contrast, Article 8 of 1998 Protocol provides Claims for compensation for

nuclear damage must be submitted within 30 years in the event of personal

injury and within 10 years in the event of other damage

3. S. 64 : Prescription of time with respect to nuclear material stolen,

lost, jettisoned or abandoned

the period within which to bring actions for compensation pursuant to section

63 shall be computed from the date of that nuclear incident and not from the

date such nuclear material had been stolen, lost, jettisoned or abandoned.

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V. CONCLUSION

Even though Malayasia did not ratify any international conventions concerning liability of

nuclear damages, there are some provisions pari materia with those conventions. As such,

it proves that Malaysia does not absolutely disregard the conventions because most of the

contradict provision concerning matters such as the extent of limitation of claim and

limitation of liability in order to suit with local circumstances.

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