Terrorist Attacks on Nuclear Power Plants from a Legal Point of View

Berlin, 13.12.2001

Since the terrorist attacks in the USA on September 11th, 2001, such attacks - especially involving the use of aeroplanes - have also been discussed as a threat scenario for nuclear facilities. The various legal questions arising in this connection were answered by Prof. Dr. Fritz Ossenbühl in a lecture given at an event hosted by the Informationskreis Kernenergie in Berlin today (December 13th). For many years, Professor Ossenbühl was director of the Institute for Public Law at Bonn University which specialises in the fields of constitutional and administrative law as well as constitutional liability law. He is also a full member of the North Rhine-Westphalian Academy of Sciences. Professor Ossenbühl summarised the results of his considerations in six points:

  1. Shutting down nuclear power plants in the case of an aeroplane attack can only be deliberated as a sovereign measure if it is suitable to reduce the damage that is expected.

  2. An order for shutdown requires legal authorisation. Contrary to the opinion of the Federal Ministry for the Environment, Section 19 para. 3 of the Atomic Energy Act (AtG) does not qualify as a legal basis in this respect. The AtG does not contain any basis for a shutdown in the event of an aeroplane attack because the protection against aeroplane attacks is not part of the physical protection programme required by law and thus stands outside the purpose of the AtG.

  3. Since aeroplane attacks are not included in the regulations of the Atomic Energy Act as concerns plant safety, the nuclear regulatory authorities are not responsible in this case. Who is rather more in charge according to Section 19 para. 4 AtG in connection with the laws of the Länder governing their law and order forces are the general police and other authorities for the maintenance of public order which can order a shutdown in the event of an existing hazard due to the general police blanket clause.

  4. The police and other authorities for the maintenance of public order are outside the federal executive administration provided for facility law according to Article 85 of the Federal Constitution and are therefore not subject to directives by the Federal Environment Ministry.

  5. A demand to retrofit the existing nuclear power plants against aeroplane attacks can only be made if this will be financed from government funds.

  6. If the danger (the defence against or reduction of which is the aim of the shutdown) does not materialise, the utilities - not having been the ones to have caused the disturbance - are entitled to compensation for the losses incurred by shutdown.


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