Liability on Environmental Damage from Nuclear Activity in Indonesia

1. Liabilityon Environmental Damage from Nuclear Activity in Indonesia Yanti Fristikawati Faculty of Law Atma Jaya Catholic University of Indonesia

2. NUCLEAR REGULATORY SYSTEMin Indonesia • Regulatory control of nuclear energy utilization is needed to protect the safety of worker, public and environment. • The control is performed by Nuclear Energy Regulatory Agency (BAPETEN) through 3 main regulatory functions: • regulation, • Licensing, and • inspection. • However, to increase the effectiveness of regulatory activities, BAPETEN also conducts the regulatory assessments.

3. Indonesia and Nuclear facilities Indonesia has 3 nuclear research reactor TRIGA MARK II RESEARCH REACTOR-1965 Bandung KARTINI RESEARCH REACTOR Yogya-1967 Siwabessy Reactor Serpong near Jakarta -1987 Indonesia use nuclear in the field of: • Medical • Industry • Agriculture • Research

4. Indonesia Energy Policy Presidential Regulation No. 5 year 2006 on National Energy Policy The Regulation indicates the target of energy mix until 2025 and the share of nuclear energy is about 2% of primary energy or 4% of electricity (4000 MWe)

5. Target of National Energy Mix 2025 Biofuel > 5 % Geothermal > 5 % Nuclear, Hydro, Solar, Wind And biomass >5 % Liquefied Coal >2 % YEAR 2005 Oil : 54.76% Natural Gas : 22.24% Coal : 16.77% Hydro : 3.72% Geothermal : 2.48%

6. Nuclear Power Plant The government plans to build Nuclear Power Plant by 2025. Feasibility studies are expected to be completed in 2015 November 2013 the Research & Technology Ministry (RISTEK) affirmed its intention of building a small (eg 30 MWe) power reactor, at an unspecified place, possibly from 2015.

7. International Regulations • Convention on the Physical Protection of Nuclear Materials,1986, ratified by Presidential Decree Number 49 Year 1986 ; • Convention on Early Notification of a Nuclear Accident, 1986, ratified by Presidential Decree Number 81 Year 1993 ; • Convention on Assisstance in the Case of the Nuclear Accident or Radiological Emergency, 1986, ratified by Presidential Decree Number 82 Year 1993 ; • Treaty on the South East Asia Nuclear Free Zone, signed at Bangkok on December 15, 1995, ratified by Act Number 9 Year 1997 ; • Convention on Nuclear Safety, Vienna 1994, ratified by Presidential Decree Number 106 Year 2001 ;

8. 6. Convention on Supplementary Compensation for Nuclear Damage, Vienna October 6, 1997 7. Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, Vienna October 6, 1997; 8. Agreement between the Republic of Indonesia and the International Atomic Energy Agency on the Application of Safeguards in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons, Vienna July 14, 1980 (INFCIRC/283); and 9. Additional Protocol to the Agreement between the Republic of Indonesia and the International Atomic Energy Agency for the Application of Safeguards in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons, Vienna September 29, 1999.

9. Principles on Nuclear liability • Strict liability of the nuclear operator  • Compensation without discrimination based on nationality, domicile or residence • Mandatory financial coverage of the operator's liability  • Exclusive jurisdiction (only courts of the State in which the nuclear accident occurs have jurisdiction) • Limitation of liability in amount and in time

10. Strict Liability Strict liability means that the victim is relieved from proving fault. In the case of an accident the operator (power plant, enrichment/fuel facility, reprocessing facility) is liable whether or not any fault or negligence can be proven. This simplifies the litigation process, removing any obstacles, especially such as might exist with the burden of proof, given the complexity of nuclear science. In layman’s terms: strict liability means a claimant does not need to prove how an accident occurred.

11. Indonesian Regulations • Act Number 10 Year 1997 on Nuclear Energy. • GR(Government Regulations) No. 43/2006 on Reactor Licensing • GR No. 63/2000 on Safety and Health Against the Utilization of Ionizing Radiation, revised by • GR No. 33/2007 on Ionizing Radiation Safety and Radioactive Sources Security • GR No. 134/2000 on Tariff of Nuclear Licensing • GR No. 26/2002 0n Transport Safety of Radioactive Materials • GR No. 27/2002 on Radioactive Waste Management

12. NUCLEAR REGULATORY SYSTEM in Indonesia • Regulatory control of nuclear energy utilization is needed to protect the safety of worker, public and environment. • The control is performed by Nuclear Energy Regulatory Agency (BAPETEN) through 3 main regulatory functions: • regulation, • Licensing, and • inspection. • However, to increase the effectiveness of regulatory activities, BAPETEN also conducts the regulatory assessments * Sukarman (BAPETEN)

13. Indonesian Act Number 10, 1997 on “Nuclear Energy” Article 28 The nuclear installation operator shall be liable for nuclear damage suffered by the third party that is resulted from any nuclear incident occurs in that nuclear Vienna Convention (The operator of a nuclear installation shall be liable for nuclear damage upon proof that such damage has been caused by a nuclear incident)

14. More than one operator Article 30 (1) Where the liability of nuclear damage under Article 28 engages more than one nuclear installation operator and it is impossible to exactly determine the part of nuclear damage caused by each of the nuclear installation operator, all of the operator shall be jointly liable (2) The liability of each nuclear installation operator under clause (1) shall not exceed the liability of each operator.

15. Nuclear Transportation Article 29 (1) In the event of nuclear incident occurs during the transportation of nuclear fuel or spent fuel, the nuclear installation consignor shall be liable for the nuclear damage suffered by third party. (2) The nuclear installation consignor under clause (1) may transfer the liability to the nuclear installation consignee or the management carrier, if there is a written agreement.

16. Obligation ReleivedArticle 33 (1) If the nuclear installation operator having paid the compensation under Article 28 is capable of proving that the nuclear damage was resulted from the intent of the third party suffering the damage, then the operator may be relieved wholly or partly from the obligation to pay compensation (2) The nuclear installation operator under clause (1) shall have a right of recourse of the liability she paid to the third party who act intentionally.

17. No Liability No liability shall attach to a nuclear installation operator for nuclear damage caused by a nuclear incident directly due to an act of international or non-international armed conflict, or a grave natural disaster exceeding the limit of safety requirement design established by the Regulatory Body

18. The liability amountArticle 34 (1) The maximum limit of liability of the nuclear installation operators shall be Rp 900.000.000.000,00 nine hundred billion rupiahs for each nuclear incident, either in nuclear installation or in transportation of nuclear fuel or spent fuel. (2) The limit of liability under clause (1) is established by Presidential Decree. (3) The liability pursuant to clause (1) and clause (2) are merely for nuclear damage, not including interest and Court fee. (4) The maximum limit of liability under clause (1) may be reconsidered through the Government Regulation.

19. The right to claimArticle 39 (1) The right to claim the compensation due to nuclear incident shall be extinguished if such claim is not brought within 30 (thirty) years from the date of the statement issuance by the Regulatory Body, pursuant to Article 38. (2) If a nuclear damage caused by a nuclear incident involving nuclear materials that are stolen, lost, or abandoned, then the period established for applying the claim for compensation pursuant to clause (1) shall be accounted from the date of nuclear incident, provided that the period shall not exceed 40 (forty) years since the nuclear materials was theft, lost, or abandoned.

20. (3) The right to claim the compensation pursuant to clause (1) and (2) shall be brought within a period of 3 (three) years from the date on which the person suffers the nuclear damage had knowledge or should have had knowledge of the nuclear damage and the nuclear installation operator liable for the damage, provided that the period established pursuant to clause (1) and (2) shall not be exceeded.

21. Government Regulation  No. 26/2002on SAFETY IN THE TRANSPORTATION OFRadioactive Substances Article8 The sender is responsible for any losses  suffered by the carrier and/or other  parties as a result of non-complience-with the provision of Article 7 paragraph (1) clause a.

22. CONCLUSION The use of nuclear energy in Indonesia is for peace purposes, but the nuclear incident could be happened from nuclear activities. the operator is liable to pay compensation. The regulation applied for this situation is Vienna Convention on the Civil Liability for Nuclear Damage, 1963, which is already ratified by the government of Indonesia, and the Indonesian Act number 10, 1997 on The “Nuclear Energy”.

23. The limitation of liability is applied and the operator has to closed the insurance

24. THANK YOUTERIMA KASIH