Domestic Legislation in view of Physical Protection

throughout its lifetime.²³⁹ However, the Convention has yet to address how to help the poor countries on that. On the other hand, the Regulation Act not only includes the aforementioned requirements,²⁴⁰ but also provides that ―to newly establish school, works, jail, hospital, long term nursing institute, recuperation and convalescent institute (charity) for the aged‖ within the low population zone, ―protective measures shall be provided.‖²⁴¹ This provision is very good because the vulnerable groups are more susceptible to the ionizing radiation, but such measures have yet to be seen in the Convention. Therefore, the Convention should take this provision into account, letting all the nuclear power countries around the world aware of this equitable measure.

3.2.2. Domestic Legislation in view of Physical Protection Convention Table 12 compares the Atomic Energy Law with the Convention on the Physical Protection of Nuclear Material and Nuclear Facilities in view of the objectives, implementation, assisting measures and equity.

239 International Atomic Energy Agency, supra note 6, at Article 19.

240 Nuclear Reactor Facilities Regulation Act, supra note 156, at Article 5.4.

241 Ibid., Article 4.

Atomic Energy LawConvention on the Physical Protection of Nuclear Material and Nuclear FacilitiesPromote the research and development of nuclear science and technology, theexploitation of nuclear resources, and the peaceful utilization of nuclear energy. Let each country recognize the potential benefits to be derived from the peacefulapplication of nuclear energy.Achieve and maintain worldwide effective physical protection of nuclear materialused for peaceful purposes and of nuclear facilities used for peaceful purposes.

Materials within certain limited quantity may be exempted from control.

EquitableMeasures All equipment that have to be imported for nuclear research, development, mining,production and protection shall be exempted from customs duties. The criminals under this Convention shall be guaranteed fair treatment at all stagesof the proceedings.

Source: Objectives

International Atomic Energy Agency (1979). Convention on the Physical Protection of Nuclear Material and Nuclear Facilities. Vienna, Austria: International Atomic Energy Agency. ImplementingMeasuresThe commencement, alternation, stoppage or resumption of the production ofnuclear material shall be reported to the Atomic Energy Council for approval.

Table 12. Comparison between the Atomic Energy Law and the Convention on the Physical Protection of Nuclear Material and Nuclear Facilities AssistingMeasures Any import or export of nuclear source material must be approved by the AtomicEnergy Council.

Any transfer and abandonment of radioactive material or of equipment capable ofionizing radiation as well as the disposal of radioactive waste are subject toapproval of the Atomic Energy Council. Every country must immediately inform other countries any theft, robbery or otherunlawful taking of nuclear material.This Convention has no right to require a State Party to provide the nuclear materialcriminal proceedings information.

The table compares the Atomic Energy Law with the Convention on the Physical Protection of Nuclear Material and Nuclear Facilities in terms of the objectives, implementing measures,assisting measures, and equitable measures.

Atomic Energy Law (1971). (原子能法(1971)。) Each country shall maintain an appropriate physical protection regime to protectagainst theft and other unlawful taking of nuclear material in use, storage andtransport.

The following sections will examine the four categories and distill the good practices from either side. Hopefully with the comparison, both the Atomic Energy Law and the Physical Protection Convention could incorporate the good points from the counterpart and improve as a whole.

3.2.2.1. Objectives

As described in Table 12, the Physical Protection Convention aims to let each Contracting Party recognize ―the potential benefits to be derived from the peaceful application of nuclear energy‖²⁴² and to ―achieve and maintain worldwide effective physical protection of nuclear material used for peaceful purposes and of nuclear facilities used for peaceful purposes.‖²⁴³ On the other hand, the Atomic Energy Law aims to ―promote the research and development of nuclear science and technology, the exploitation of nuclear resources, and the peaceful utilization of nuclear energy.‖²⁴⁴ With the comparison, it is obvious that the objectives of the Physical Protection Convention are clear and reasonable, but the objectives of the Atomic Energy Law are too broad and impractical. Thus, it is suggested that in Article 1 of the Atomic Energy Law, the promotions on the ―research and development of nuclear science and technology‖ and ―exploitation of nuclear resources‖ shall be deleted because the Atomic Energy Law must focus on the protection of domestic nuclear materials and facilities.

3.2.2.2. Implementing Measures

In terms of the implementing measures, the Physical Protection Convention provides that each State Party shall establish, implement and maintain an appropriate physical protection regime applicable to nuclear material and nuclear facilities under its jurisdiction with the aim of protecting against theft and other unlawful taking of nuclear material in use, storage and transport.²⁴⁵ Following this provision, the Atomic Energy Law regulates that

―Import or export of nuclear source material, unless approved by the Atomic Energy Council and implemented in compliance with related laws, is not allowed.‖²⁴⁶ In this aspect, there is good consistency in between the Convention and the Law because the Convention requires each country to prohibit the unauthorized retrieval of nuclear materials under the domestic framework while the Law provides just that. Even so, there is a potential threat under this framework because it is not suitable that the Convention encourages each country to develop its own regulatory framework. As a matter of fact, ―Governments and international organizations, including the International Atomic Energy Agency (IAEA), were largely ignorant of Iraqi intentions and capabilities.‖²⁴⁷ Moreover, ―it is widely acknowledged that several states in the Middle East, notably Algeria, Iran and Libya, are moving toward nuclear weapons capability, as is North Korea.‖²⁴⁸ Therefore, in addition to the regulatory framework of each country, there must be an inspection system incorporated into the Physical Protection Convention in the

242 International Atomic Energy Agency, supra note 120, at Preamble.

243 Ibid., Article 1A.

244 Atomic Energy Law, supra note 157, at Article 1.

245 International Atomic Energy Agency, supra note 120, Article 2A.

246 Atomic Energy Law, supra note 157, at Article 21.4.

247 Deutch, J. M. (1992). The New Nuclear Threat. Foreign Affairs, 71 (4), 120-134.

248 Ibid., 121.

future. If a Member State does not comply with the inspection, there should also be sanctions defined in the Convention.

On the other hand, the Atomic Energy Law provides that ―Radioactive materials within certain limited quantity may be exempted from control with the exact amount to be set forth by the Atomic Energy Council.‖²⁴⁹ This is a good provision because if the competent authority needs to keep track of every bit of nuclear material, it may result in governmental wastes²⁵⁰ and in turn compromise the ability of the Atomic Energy Council to effectively govern the nuclear reactor facilities. Even so, the quantitative regulations must be defined carefully by the authority based on scientific evidence. As for the states with nuclear proliferation concerns like Iraq, Iran, Algeria, Libya and North Korea,²⁵¹ such provisions are definitely inappropriate.

3.2.2.3. Assisting Measures

When it comes to the assisting measures, the Physical Protection Convention provides that ―a State Party shall take appropriate steps to inform as soon as possible other States, which appear to it to be concerned, of any theft, robbery or other unlawful taking of nuclear material or credible threat thereof, and to inform, where appropriate, the IAEA and other relevant international organizations.‖²⁵² This is an important provision because a prompt notification will greatly enhance the chance of success through international cooperation. Unfortunately, the relevant provisions have yet to be seen in the Atomic Energy Law, so the competent authority in Taiwan should establish such reporting systems as soon as possible.

On the other hand, as Table 12 shows, the Atomic Energy Law provides that ―The commencement, alternation, stoppage or resumption of the production of nuclear source material shall be reported to the Atomic Energy Council for approval.‖²⁵³ Furthermore, ―any transfer and abandonment of radioactive material or of equipment capable of ionizing radiation as well as the disposal of radioactive waste are subject to approval of the Atomic Energy Council, and to audit, inspection may be made by the Atomic Energy Council.‖²⁵⁴ From this regard, although there is no reporting mechanism defined in the Law as mentioned earlier, the Law indeed clearly regulates that any physical protection issues related to nuclear materials must be strictly monitored by the competent authority. Moreover, taking into account that Taiwan is not facing the nuclear proliferation issue, the lack of international reporting system in the Atomic Energy Law as mentioned before shall not be an urgent problem.

3.2.2.4. Equitable Measures

As for the equitable measures, the Physical Protection Convention provides that ―Any person regarding whom proceedings are being carried out in connection with any of the offences set forth in this Convention shall be guaranteed fair treatment at all stages of the proceedings.‖²⁵⁵ With this

249 Atomic Energy Law, supra note 157, at Article 26.11.

250 Fan and Ban, supra note 197.

251 Deutch, supra note 247, at 121.

252 International Atomic Energy Agency, supra note 120, at Article 5.

253 Atomic Energy Law, supra note 157, at Article 21.2.

254 Ibid., Article 26.5.

255 International Atomic Energy Agency, supra note 120, at Article 12.

foundation, Article 14.3 of this Convention, specifying that ―nothing in this Convention shall be interpreted as requiring that State Party to provide information concerning criminal proceedings arising out of such an offence,‖²⁵⁶ shall be abolished. That is because the provision that allows a State Party not to provide the criminal proceedings information could be understood as a resolution to avoid disputes, letting the signatories more willing to approve this Convention. Even so, since the human rights of the suspects during the proceedings have already been guaranteed, such resolution would be redundant. Instead, the uncovering of the criminal proceedings information is likely to make the Convention more effective.

On the other hand, the Atomic Energy Law provides that ―All equipment that have to be imported for nuclear research, development, mining, production and protection, as well as for use relating to nuclear power generation shall, according to rules stipulated by the Executive Yuan, be reduced of or exempted from customs duties.‖²⁵⁷ This measure has yet to be seen in the Convention, but it is indeed a good method to enhance nuclear safety as elaborated in Chapter 3.1.2.4. Thus, the Physical Protection Convention is suggested to take this approach into consideration.

3.2.3. Domestic Legislation in view of Joint Convention and Marine