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Strict Liability and State Indemnification Under Japanese Law the New Space Activities Act Compared with the Scheme on Compensation for Nuclear Damages

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Strict Liability and State Indemnification Under Japanese Law the New Space Activities Act Compared with the Scheme on Compensation for Nuclear Damages Strict Liability and State Indemnification under Japanese Law The New Space Activities Act Compared with the Scheme on Compensation for Nuclear Damages Souichirou Kozuka∗ I. Introduction: The Enactment of the Space Activities Act II. The Enactment of the Space Activities Act 1. Background of the Space Activities Act 2. The Outline of the Space Activities Act III. Strict Liability and State Indemnification in Japan 1. Existing Legislation Featuring Strict Liability 2. Varieties among Strict Liability Statutes 3. State Indemnification under the Space Activities Act 4. Comparison with State Indemnification under the Law on Compensation for Nuclear Damages IV. Regulatory Competition in National Space Legislation V. Conclusion I. INTRODUCTION: THE ENACTMENT OF THE SPACE ACTIVITIES ACT Japan has been very restrictive in introducing strict liability rules in tort law. In the narrow meaning of the word, strict liability is a rule to impose liability solely based on the occurrence of damage.1 The Products Liability Law of 1994,2 for example, does not fall under this category because liabil- ity under that law depends on the finding of a defect in the product. Com- mon law countries have developed a doctrine whereby strict liability is appropriate when the cause of damage is an ultrahazardous or abnormally ∗ Professor, Faculty of Law, Gakushūin University, Tōkyō. The author’s research has been funded by the Nomura Foundation. 1 On the definition of “strict liability”, see B. A. KOCH / H. KOZIOL, Comparative Conclusions, in: Koch / Koziol (eds.), Unification of Tort Law: Strict Liability, 395 [2] (Kluwer Law International 2002). 2 For the Japanese Products Liability Law, see L. NOTTAGE, Product Safety and Liability Law in Japan (Routledge Curzon 2004). 4 SOUICHIROU KOZUKA ZJAPANR / J.JAPAN.L dangerous activity.3 A more or less similar concept has been adopted by civil law jurisdictions as well, as is documented.4 The concept itself is not unknown in Japan.5 In November 2016, the Diet approved the Act Concerning the Launch and Control of Satellites (hereinafter, the “Space Activities Act”). It in- cludes a provision imposing strict liability on the entity launching a satellite for damage inflicted on the surface of the Earth or to an aircraft in the air (see II.2. below). The Space Activities Act further provides for state in- demnification in the event damage occurring on the Earth’s surface exceed the insured amount. A careful study of this Space Activities Act is of inter- est: Firstly, it allows us to see on which exceptional occasions Japan intro- duces a strict liability rule. Secondly, a closer comparison of the Space Activities Act with existing strict liability statutes reveals that such statutes, in fact, vary significantly in their details. In particular, a comparison with the Law on Compensation for Nuclear Damages is useful in two regards. Firstly, it served as a model for drafting the Space Activities Bill. Secondly, and more importantly, the unfortunate incident of the Fukushima Daiichi Nuclear Power Plant after the Great East Japan Earthquake shows how the Law is applied in determining the liability of operators, in that case the Tokyo Electric Power Company (TEPCO). This article aims at studying the Space Activities Act from these perspectives. The article will proceed in the following order. First, it summarizes the background and outlines the Space Activities Act (II.). Next, strict liability and state indemnification under the Space Activities Act is compared rela- tive to other statutes (III.). Then, the reasons for the Space Activities Act’s adoption are examined in light of other countries’ national space legisla- tion, which allows us to identify a kind of regulatory competition (IV.). A brief conclusion will follow (V.). II. THE ENACTMENT OF THE SPACE ACTIVITIES ACT 1. Background of the Space Activities Act The Space Activities Act is not the first piece of legislation on space explo- ration in Japan. Besides the JAXA Law,6 which incorporates and governs 3 Restatement of the Law (Third) of Torts: Liability for Physical and Emotional Harm, § 20 (a). 4 Principles of European Tort Law, Art. 5:101; see also Draft Common Frame of Reference, VI. – 3:206. 5 See, for example, Y. SHIOMI, Sekinin shutai e no kiseki no seitōka [Justification for attributing liability to a person], in: NBL No. 1056 (2015) 10. Nr. / No. 43 (2017) LIABILITY FOR SPACE ACTIVITIES AND NUCLEAR DAMAGES 5 the Japanese space agency known as JAXA (Japan Agency for Exploration of Aerospace), the Basic Space Law7 was enacted in 2008. The Basic Space Law is one of the “basic laws” that are often enacted when a comprehen- sive set of policies for an emerging sector is perceived as necessary.8 Pur- suant to the ordinary format of such basic laws, the Basic Space Law stipu- lates six guiding principles of Japan’s space policy, namely: peaceful use of outer space; improvement of the lives of the citizenry; advancement of industries; development of human society; international cooperation; and consideration of the environment (Arts. 2–7).9 Thereafter, the Basic Space Law provides that the national government is responsible for calibrating these guiding principles through the establishment and implementation of a comprehensive set of policies (Art. 8). There are eleven items listed as requiring the formulation of such policies (Arts. 13–23). These policies shall be compiled to form the Basic Space Plan, which is to be promulgated by the Strategic Headquarters for Space Development (Art. 24);10 the Stra- tegic Headquarter is headed by the Prime Minister and constituted by all the government ministers (Arts. 27–30). The last provision of the Basic Space Law requires the government to enact a statute necessary for imple- menting international agreements, including the regulation (permission and supervision) of space activities by non-governmental entities (Art. 35). The second paragraph of the same provision states that such legislation should be carried out “to advance the national interests of Japan in international society and to contribute to the promotion of Space Development and Use 6 Law No. 161 of 2002. Prior to 2003, when three agencies were integrated into JAXA, the primary space agency in Japan was NASDA (National Space Develop- ment Agency), incorporated by the NASDA law (law No. 50 of 1969). 7 Law No. 43 of 2008. 8 A recent example of such basic law is the Basic Ocean Law (law No. 33 of 2007). See N. OKUWAKI, The Basic Act on Ocean Policy and Japan’s Agendas for Legisla- tive Improvement, in: Japanese Yearbook of International Law 51 (2008) 164; S. KOZUKA / H. NAKAMURA, The Law Applicable on the Continental Shelf and in the Exclusive Economic Zone: The Japanese Perspective, in: Chircop et al. (eds.), Ocean Yearbook 25 (Nijhoff 2011) 357. 9 English phrasings are taken from the translation available on the website of JAXA at http://stage.tksc.jaxa.jp/spacelaw/country/japan/27A-1.E.pdf. 10 The first Basic Space Plan was published in 2009, which was succeeded by the second Basic Space Plan of 2013. The 2013 version was replaced by the Basic Space Plan of 2015, adopted by the Strategic Headquarters in January 2015 and ap- proved by the Cabinet in April 2016. English translations of these Basic Plans are available on the website of the Cabinet Administration Office at http://www8. cao.go.jp/space/plan/keikaku.html. 6 SOUICHIROU KOZUKA ZJAPANR / J.JAPAN.L by the private sector.” The Space Activities Act has been enacted in re- sponse to this provision of the Basic Space Law. The relationship between the two laws becomes apparent if one focuses on the fact that the Bill that later became the Basic Space Law was pre- pared by the members of the Diet.11 This suggests that the Basic Space Law reflects the political aims as to how Japan’s space policy should be formu- lated, while the implementation of these policies has been left in the hands of the administration with the drafting of the Bill of a Space Activities Law. Furthermore, the administration was tasked with incorporating into the Bill an industrial policy facilitative of the space industry. This can be contrasted with the Basic Space Law’s direct reference to national security implica- tions. Carefully woven into the “etc.” of the second guiding principle – Art. 2 being titled “Improvement of the lives of the citizenry, etc.” – the Basic Space Law authorizes the use of space “to increase [sic] national security of Japan,”12 subject to constitutional limitations, of course.13 Thus, there is a declared political will to make use of space for (defensive) na- tional security purposes and to entrust the administration with the formula- tion of industrial policy for this sector.14 2. The Outline of the Space Activities Act The Space Activities Act is a combination of regulatory and liability rules15. On the regulatory side, it requires a license from the government for two types of space activity conducted by a private entity, and it provides for special liability rules for damage that such an activity causes on the surface of the Earth. The introduction of the license regime is meant to implement the obligation under the Outer Space Treaty16 to subject activities of non- governmental entities in outer space to “authorization and continuing su- 11 This is rather exceptional for bills submitted to the Japanese Diet. On this point, see J.A.A. STOCKWINN, Governing Japan (Blackwell Publishing 2008) 162. 12 Art. 3 of the Basic Space Law. 13 See the requirement to be “in accordance with the pacifism of the Constitution of Japan” in Art. 2 of the Basic Space Law. 14 For the meaning of the Basic Space Law, see S. AOKI, Current Status and Recent Developments of Japan’s National Space Law and its Relevance to Pacific Rim Space Law and Activities, in: Journal of Space Law 35 (2009) 363.
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