후쿠시마 원전오염수 방류에 따른 환경침해의 국제사법적 쟁점에 관한 소고

Abstract

On August 24, 2015, it will have been one year since the Japanese government and the TEPCO commenced the release of contaminated water from the Fukushima Daiichi Nuclear Power Plant. To date, the total volume of nuclear-contaminated water released has reached 54,743 cubic meters. It will take time for the environmental damage caused by the discharge of nuclear-contaminated water to manifest in Korea. Should it do so and can it be proven, it is inevitable that international lawsuits will be filed to seek tort liability. In this case, international private law considerations are essential. This article examines the adjudicative jurisdictional and choice-of-law rules relating to tort liability in Europe and Japan. It then provides a brief overview of the current state of the private international law in Korea and offers a hypothetical response to the Fukushima contaminated water case. In the event of a trial in the Korean court, the question of jurisdiction is not without controversy. However, it is unlikely that there would be any significant difficulty in recognizing the Korean court’s jurisdiction. The governing law could be either Japanese or Korean law, depending on the parties' choice. It is determined that the decision regarding the applicable law for the trial is left to the discretion of the potential victims, the Korean people. However, it is also recommended that Japanese law could be given due consideration as a potential choice, given that the outcome of the trial in Korea should be recognised and enforceable in Japan. In this regard, a comprehensive substantive law analysis of the implications of opting for Japanese law as the governing law is essential. In light of the recent decision by the Japan's supreme court, which recognizes TEPCO's liability to its own citizens who are victims of the Fukushima nuclear disaster but denies liability to the Japanese government itself, it is evident that such a decision may have significant implications for Korean citizens' claims against the TEPCO. Nevertheless, a comprehensive examination of this subject matter is necessary to persuade the Japanese courts. Despite the existence of several international treaties pertaining to nuclear accidents and international environmental law, currently, there is no international convention in the field of private international law with respect to environmental law or nuclear accidents. It is therefore essential to have a comprehensive grasp of the jurisdiction and governing law pertaining to the country in which the international environmental dispute is filed, as well as the various treaties in the field of public international law.