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Revisiting the Convention on Nuclear Safety: Lessons Learned from the Fukushima Accident

  • Aleksandra ČAVOŠKI (a1)
Abstract

The Fukushima nuclear accident raised questions about the implementation of the Convention on Nuclear Safety by the Japanese government and identified the need to reassess the obligation of each contracting party deriving from the Convention and IAEA safety standards. The author analyzes several major deficiencies such as the lack of independence and effectiveness of the regulatory body, the failure to evaluate all relevant site- and design-related factors, and design and construction of the installation, as well as the emergency response, in order to determine the failure of the Japanese government to comply with the Convention and exercise the obligation of due diligence. As a result, the author demonstrates the fulfilment of two elements of state responsibility for nuclear damage. The author also establishes the ineffectiveness of the Convention's preventive monitoring mechanisms and recommends the introduction of a stronger monitoring regime and highlights the need to amend the Convention safety rules.

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Teaching Fellow, Law School, University of Birmingham, Visiting Professor at the Washington and Lee University, School of Law (August 2011 to January 2012).

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1. International Atomic Energy Agency, “IAEA International Fact Finding Expert Mission of the Nuclear Accident Following the Great East Japan Earthquake and Tsunami: Preliminary Summary” (1 June 2011), online: IAEA 〈http://www.iaea.org/newscenter/focus/fukushima/missionsummary010611.pdf〉.

2. Ibid., at 4.

3. See also The National Diet of Japan, Official Report of the Fukushima Nuclear Accident Independent Investigation Commission” (1 October 2012), online: NAIIC 〈http://www.nirs.org/fukushima/naiic_report.pdf〉 at 16. The Independent Investigation Commission appointed by the National Diet was even more critical, calling the disaster a manmade disaster that was the result of collusion between the government, the regulators, and TEPCO, and a lack of governance by said parties.

4. Convention on Nuclear Safety, 17 June 1994, 1963 U.N.T.S. 293 (entered into force 24 October 1994) [NSC]. There are seventy-five contracting parties to the Convention and Japan is one of them.

5. See US Senate Committee on Energy and Natural Resources, Nuclear Power Plant Tragedy in Japan Briefing, 29 March 2011. Washington: Government Printing Office, 2011 [US Senate Briefing]; European Commission, “Joint Declaration/Press Statement on Comprehensive Risk and Safety Assessments of Nuclear Plants (‘stress tests’)” (23 June 2011), online: EC 〈http://ec.europa.eu〉; European Union: European Commission, Communication from the Commission to the Council and the European Parliament on the Interim Report on the Comprehensive Risk and Safety Assessments (“stress tests”) of Nuclear Power Plants in the European Union, 24 November 2011.

6. IAEA, “Summary Report of the 5th Review Meeting of the Contracting Parties to the Convention on Nuclear Safety” (4−14 April 2011), online: IAEA 〈http://www-ns.iaea.org〉 at 3.

7. See supra note 1 at 2.

8. UN Office for the Coordination of Humanitarian Affairs, Japan: Earthquake & Tsunami, Situation Report No. 7 (18 March 2011), online: OCHA 〈http://reliefweb.int〉.

9. World Nuclear Association, “Fukushima Accident 2011” (November 2011), online: WNA 〈http://www.world-nuclear.org/info/fukushima_accident_inf129.html〉.

10. IAEA, “Report of Japanese Government to IAEA Ministerial Conference on Nuclear Safety—Accident at TEPCO's Fukushima Nuclear Power Stations” (7 June 2011), online: IAEA 〈http://www.iaea.org/newscenter/focus/fukushima/japan-report/〉 [Report of Japanese Government]. According to this report, the tsunami caused the inundation of 561km2 of land and the destruction of 475,000 residential buildings. Approximately 460,000 households suffered from gas supply shortages, approximately 4,000,000 households lost electricity and almost all phone lines were down.

11. International Food Safety Authorities Network, “Information on Nuclear Accidents and Radioactive Contamination of Foods” (30 March 2011)

12. See supra note 1 at 2.

13. Fukushima Dai-ni 1, 2, 3, 4, Tohoku's Onagawa 1, 2, 3, and Japco's Tokai operating units were also successfully shut down.

14. Three other reactors that did not melt are now in cold shutdown.

15. Supra note 1 at 2.

16. RAMSEYER Mark J., “Why Power Companies Build Nuclear Reactors on Fault Lines: The Case of Japan” (2012) 13 Theoretical Inquiries in Law 457

17. See “How Does Fukushima Differ From Chernobyl” BBC (16 December 2011), online: BBC 〈http://www.bbc.co.uk/news/world-asia-pacific-13050228〉. So far 370,000 terabecquerels (as of 12 April) of radiation were realized. At Chernobyl 5.2 million terabecquerels were realized.

18. See NSC, supra note 4.

19. KAMMINGA Menno, “The IAEA Convention on Nuclear Safety” (1995) 44 International and Comparative Law Quarterly 872 at 875

20. NSC, supra note 4.

21. Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, 5 September 1997 (entered into force 18 June 2001), online: IAEA 〈http://www.iaea.org/ns/tutorials/regcontrol/refs/13jointconv.pdf〉.

22. Kamminga, supra note 19 at 875

23. IAEA, “IAEA Safety Standards: The Global Reference for Protecting People and the Environment from Harmful Effects of Ionizing Radiation” (June 2009)

24. BIRNIE Patricia, BOYLE Alan, and REDGWELL Catherine, International Law & The Environment, 3rd ed. (New York: Oxford University Press, 2009) at 495496

25. NSC, supra note 4, art. 1(i).

26. Birnie, Boyle, and Redgwell, supra note 24 at 497

27. IAEA, “Factsheets & FAQs: Nuclear Safety” (16 June 2011)

28. NSC, supra note 4, art. 6.

29. Kamminga, supra note 19 at 875

30. Birnie, Boyle, and Redgwell, supra note 24 at 501

31. NSC, supra note 4, art. 7(1).

32. IAEA, “IAEA Safety Standards for Protecting People and the Environment: Governmental, Legal and Regulatory Framework for Safety”, No. GS-R-1 (September 2010)

33. Ibid., at 5−6. The checklist of issues to be prescribed includes the following:

  1. 1.

    1. The safety principles for protecting people—individually and collectively—society and the environment from radiation risks, both at present and in the future;

  2. 2.

    2. The types of facilities and activities that are included within the scope of the framework for safety;

  3. 3.

    3. The type of authorization that is required for the operation of facilities and for the conduct of activities, in accordance with a graded approach;

  4. 4.

    4. The rationale for the authorization of new facilities and activities, as well as the applicable decision making process;

  5. 5.

    5. Provision for the involvement of interested parties and for their input to decision making;

  6. 6.

    6. Provision for assigning legal responsibility for safety to the persons or organizations responsible for the facilities and activities, and for ensuring the continuity of responsibility where activities are carried out by several persons or organizations successively;

  7. 7.

    7. The establishment of a regulatory body, as addressed in Requirements 3 and 4;

  8. 8.

    8. Provision for the review and assessment of facilities and activities, in accordance with a graded approach;

  9. 9.

    9. The authority and responsibility of the regulatory body for promulgating (or preparing for the enactment of) regulations and preparing guidance for their implementation;

  10. 10.

    10. Provision for the inspection of facilities and activities, and for the enforcement of regulations, in accordance with a graded approach;

  11. 11.

    11. Provision for appeals against decisions of the regulatory body;

  12. 12.

    12. Provision for preparedness for, and response to, a nuclear or radiological emergency;

  13. 13.

    13. Provision for an interface with nuclear security;

  14. 14.

    14. Provision for an interface with the system of accounting for, and control of, nuclear material.

34. NSC, supra note 4, art. 8(1).

35. Ibid., art. 8(2).

36. See supra note 32 at 16.

37. IAEA, “IAEA Safety Standards Series: Organization and Staffing of the Regulatory Body for Nuclear Facilities”, No. GS-G-1.1 (August 2002)

38. NSC, supra note 4, art. 10.

39. NSC, ibid., art. 11.

40. NSC, ibid., art. 12.

41. NSC, ibid., art. 13.

42. NSC, ibid., art. 14.

43. NSC, ibid., art. 15.

44. NSC, ibid., art. 16.

45. NSC, ibid., art. 9.

46. NSC, ibid., art. 11(2).

47. IAEA, “Promoting Safety in Nuclear Installations”, 2003

48. Ibid.

49. IAEA, “IAEA Safety Standards Series: Recruitment, Qualification and Training of Personnel for Nuclear Power Plants”, No. NS-G-2.8 (November 2002)

50. IAEA, “IAEA Safety Standards for Protecting People and the Environment: Fundamental Safety Principles”, No. SF-1 (November 2006)

51. IAEA, “Quality Assurance for Safety in Nuclear Power Plants and Other Nuclear Installations: Code and Safety Guides Q1-Q14” (September 1996)

52. NSC, supra note 4, art. 16(1).

53. Ibid., art. 16(2).

54. IAEA, “IAEA Safety Standards Series: Preparedness and Response for a Nuclear or Radiological Emergency”, No. GS-R-2 (November 2002)

55. IAEA, “IAEA Safety Standards for Protecting People and the Environment: Arrangements for Preparedness and Response for a Nuclear or Radiological Emergency”, No. GS-G-2.1 (May 2007)

56. IAEA, “IAEA Safety Standards for Protecting People and the Environment: Criteria for Use in Preparedness and Response for a Nuclear or Radiological Emergency”, No. GSG-2 (May 2011)

57. NSC, supra note 4, arts. 10–16.

58. NSC, ibid., art. 17.

59. NSC, ibid., art. 18.

60. NSC, ibid., art. 19.

61. NSC, ibid., art. 6.

62. Ibid.

63. Birnie, Boyle, and Redgwell, supra note 24 at 496

64. See e.g. IAEA online publications at 〈http://www-pub.iaea.org〉: “IAEA Safety Standards Series: The Safety of Nuclear Power Plants—Design”, No. NS-R-1 (September 2000) [Safety of Nuclear Power Plants—Design]; “IAEA Safety Standards Series: The Site Evaluation for Nuclear Installations”, No. NS-R-3 (November 2003) [Site Evaluation for Nuclear Facilities]; “IAEA Safety Standards for Protecting People and the Environment: Safety of Nuclear Power Plants—Commissioning and Operation”, No. SSR-2/2 (July 2011); “IAEA Safety Standards Series: Design of Reactor Containment Systems for Nuclear Power Plants”, No. NS-G-1.10 (September 2004) [Design of Reactor Containment Systems]; “IAEA Safety Standards for Protecting People and the Environment: Protection Against Internal Hazards Other than Fires and Explosions in the Design of Nuclear Power Plants”, No. NS-G-1.11 (September 2004); “IAEA Safety Standards for Protecting People and the Environment: Design of the Reactor Core for Nuclear Power Plants”, No. NS-G-1.12 (April 2005) [Design of the Reactor Core]; “IAEA Safety Standards Series: Instrumentation and Control Systems Important to Safety in Nuclear Power Plants”, No. NS-G-1.3 (March 2002); “IAEA Safety Standards Series: Design of Fuel Handling and Storage Systems for Nuclear Power Plants”, No. NS-G-1.4 (August 2003); “IAEA Safety Standards Series: External Events Excluding Earthquakes in the Design of Nuclear Power Plants”, No. NS-G-1.5 (November 2003); “IAEA Safety Standards Series: Seismic Design and Qualification for Nuclear Power Plants”, No. NS-G-1.6 (November 2003); “IAEA Safety Standards Series: Design of Emergency Power Systems for Nuclear Power Plants, No. NS-G-1.8 (August 2004); “IAEA Safety Standards Series: Design of the Reactor Coolant System and Associated Systems in Nuclear Power Plants”, No. NS-G-1.9 (September 2004) [Design of the Reactor Coolant System]; “IAEA Safety Standards for Protecting People and the Environment: Evaluation of Seismic Safety for Existing Nuclear Installations”, No. NS-G-2.13 (May 2009); “IAEA Safety Standards for Protecting People and the Environment: Seismic Hazards in Site Evaluation for Nuclear Installations”, No. SSG-9 (August 2010).

65. Birnie, Boyle, and Redgwell, supra note 24

66. NSC, supra note 4, art. 5.

67. Kamminga, supra note 19 at 880

68. There were concerns after the Fukushima accident regarding the implementation of the NSC provisions on the legislative and regulatory framework, human resources, and emergency preparedness. However, the author decided to analyze only the most evident deficiencies in the implementation of the NSC.

69. Birnie, Boyle, and Redgwell, supra note 24 at 501

70. NSC, supra note 4, art. 8(1)–(2).

71. IAEA, “Summary Report of the Third Review Meeting of the Contracting Parties to the Convention on Nuclear Safety” (April 2005)

72. Nuclear Regulatory Authority, “Convention on Nuclear Safety—National Report of Japan for the Second Review Meeting” (October 2001)

73. Ibid., at 8.2−8.3.

74. Nuclear Regulatory Authority, “Convention on Nuclear Safety—National Report of Japan for the Fourth Review Meeting” (September 2007)

75. See, for instance, “Japan Sacks Three Nuclear Power Officials in Shake-up” BBC (4 August 2011), online: BBC 〈http://www.bbc.co.uk/news/world-asia-pacific-14398645〉, and “‘Nuclear Safety Agency’ is Patchwork Without Policy Change” Japan Press Weekly (3 August 2011), online: Japan Press Weekly 〈http://www.japan-press.co.jp/modules/news/index.php?id=2103〉.

76. Supra note 37.

77. See infra note 82 at A.3−4.

78. Nuclear Regulatory Authority, “Convention on Nuclear Safety—National Report of Japan for the Fifth Review Meeting” (September 2010)

79. See infra note 82 at 8.3, and supra note 74 at 8.1.

80. There were several incidents where NISA requested electric power companies to arrange pro-nuclear energy questions during seminars organized by the government. See e.g. “NISA Asked Chubu Electric to Manipulate Public Opinion” Asahi Shimbun (29 July 2011), online: 〈http://ajw.asahi.com/article/0311disaster/fukushima/AJ201107295038〉.

81. Masahiko AOKI and ROTHWELL Geoffrey, “Coordination Under Large Uncertainty: An Analysis of the Fukushima Catastrophe”, Social Science Research Network, Stanford University, Working Paper, 15 October 2011 at 12

82. Nuclear Regulatory Authority, “Convention on Nuclear Safety—National Report of Japan for the Third Review Meeting” (October 2001)

83. MAJONE Giandomenico, “The Agency Model: The Growth of Regulation and Regulatory Institutions in the European Union” (1997) 3 EIPASCOPE 1 at 16

84. NSC, supra note 4, art. 8(1).

85. Supra note 83 at 1.

86. Supra note 82 at 8.2.

87. Ibid.

88. Supra note 37 at 4.

89. Supra note 32 at 20.

90. Supra note 82 at Preface-3.

91. Ibid.

92. Investigation Committee on the Accident at the Fukushima Nuclear Power Stations of Tokyo Electric Power Company, “Interim Report” (26 December 2011), online: ICANPS 〈http://icanps.go.jp/eng/interim-report.html〉.

93. Investigation Committee on the Accident at the Fukushima Nuclear Power Stations of Tokyo Electric Power Company, “Final Report on the Accident at Fukushima Nuclear Power Stations of Tokyo Electric Power Company—Recommendations” (23 July 2012), online: ICANPS 〈http://icanps.go.jp〉 at 10. Seven main recommendations were made in the Final Report: (1) the need for independence and transparency; (2) organizational preparedness for swift and effective emergency response; (3) recognition of its role as a provider of disaster-related information to Japan and the world; (4) development of competent human resources and specialized expertise; (5) efforts to collect information and acquire scientific knowledge; (6) active relationship with international organizations and regulatory bodies of other countries; and (7) strengthening of the regulatory body.

94. Supra note 92 at 297.

95. Ministry of Economy, Trade and Industry, “Convention on Nuclear Safety—National Report of Japan for the Second Extraordinary Meeting” (July 2012)

96. Supra note 3 at 20.

97. See Report of Japanese Government, supra note 10.

98. See supra note 75.

99. SOBLE Jonathan, “Doubts Rise on Japan's Nuclear Phase-out” Financial Times (19 September 2012)

100. See supra note 50 at 8. It is defined as a culture that “governs the attitudes and behaviour in relation to safety of all organizations and individuals concerned [and which] must be integrated in the management system”.

101. See supra note 6.

102. IAEA, “Safety Standards for Protecting People and the Environment: The Management System for Facilities and Activities”, No. GS-R-3 (July 2006)

103. Citizen's Nuclear Information Center, “‘Not Again’: Yet another TEPCO Scandal” (March/April 2007)

104. Supra note 82 at 6.2.

105. Ibid at Preface-4.

106. Supra note 3 at 43.

107. Ibid.

108. NSC, supra note 4, arts. 17−19.

109. Ibid., art. 6.

110. IAEA, “Summary Report of the 1st Review Meeting of Contracting Parties to the Convention on Nuclear Safety” (12−23 April 1999)

111. NSC, supra note 4, art. 17.

112. TREWARTHA Glenn T., Japan—A Geography (Madison, WI: University of Wisconsin Press; London: Methuen & Co. Ltd, 1970) at 17

113. See supra note 10 at III-1.

114. See Site Evaluation for Nuclear Installations, supra note 64 at 7.

115. Ibid.

116. Ibid., at 13.

117. Supra note 1 at 4.

118. See supra note 3.

119. Japan Meteorological Agency, “Tables Explaining the JMA Seismic Intensity Scale” (2012)

120. Supra note 82 at A3−81. The Japanese Regulatory Guide for Safety Design prescribes that structures, systems, and components with safety functions shall be designed to sufficiently withstand appropriate design basis seismic forces.

121. Supra note 1 at 4.

122. GELLER Robert J., “Shake-up Time for Japanese Seismology” (2011) 472 Nature 407

123. Ibid., at 408.

124. Ibid.

125. Ibid.

126. See Report of Japanese Government, supra note 10.

127. Geller, supra note 122 at 408

128. Supra note 3 at 27.

129. Ibid.

130. Geller, supra note 122 at 408

131. Supra note 92 at 586.

132. Ibid., at 587.

133. Ibid.

134. See supra note 92 at 585. According to this report, this height was set based on the maximum wave height observed at the Onahama Port (about 40 kilometres south of the Fukushima Daiichi NPS) at the time of the Chile Earthquake in 1960.

135. See supra note 1 at 1.

136. Supra note 92 at 587.

137. Supra note 3 at 27−8.

138. See “Fateful Move Exposed Japan Plant” Wall Street Journal (12 July 2011), online 〈http://online.wsj.com/article/SB10001424052702303982504576425312941820794.html〉.

139. Ibid.

140. Birnie, Boyle, and Redgwell, supra note 24 at 170

141. The MOX Plant Case (Ireland v. United Kingdom), Permanent Court of Arbitration, Memorial of Ireland (Segment II) (26 July 2002), online: PCA 〈http://www.pca-cpa.org/showpage.asp?pag_id=1148〉 at para. 7.2.

142. See Safety of Nuclear Power Plants—Design, supra note 64.

143. See Design of the Reactor Coolant System, supra note 64.

144. See Design of Reactor Containment Systems, supra note 64.

145. See Design of the Reactor Core, supra note 64.

146. Reactors became operational in the period from 1971 to 1975.

147. See “Design Flaw Fuelled Nuclear Disaster” Wall Street Journal (1 July 2011), online 〈http://online.wsj.com/article/SB10001424052702304887904576395580035481822.html〉.

148. See Design of the Reactor Coolant System, supra note 64 at 7.

149. Ibid., at 37

150. See Report of Japanese Government, supra note 10 at III-33.

151. Ibid., at III-31−2.

152. According to the IAEA Safety of Nuclear Power Plants—Design, the concept of defence in depth in the design of a plant provides a series of levels of defence (inherent features, equipment, and procedures) aimed at preventing accidents and ensuring appropriate protection in the event that prevention fails.

153. Supra note 1 at 4.

154. See Report of Japanese Government, supra note 10 at 36.

155. See Safety of Nuclear Power Plants—Design, supra note 64 at 5.

156. Ibid., at 6.

157. See Report of Japanese Government, supra note 10 at 270.

158. Ibid., at 323.

159. See US Senate Briefing, supra note 5 at 21.

160. Ibid., at 17

161. Ibid., at 20.

162. See supra note 9.

163. See Report of Japanese Government, supra note 10 at IV-107.

164. NSC, supra note 4, art. 16.

165. Supra note 92 at 565.

166. Supra note 1 at 4.

167. See Report of Japanese Government, supra note 10.

168. Supra note 92.

169. Supra note 93.

170. Supra note 3.

171. The following governmental bodies were involved in the emergency response: the Prime Minister's Nuclear Emergency Response Headquarters, the Secretariat of the Nuclear Emergency Response Headquarters of NISA, and the Local Nuclear Emergency Response team.

172. See supra note 3 at 33−6.

173. See Report of Japanese Government, supra note 10 at 36.

174. See supra note 3 at 34. The best illustration was the lack of communication regarding the vent in Unit 1 and the injection of seawater.

175. Supra note 92 at 579.

176. Ibid., at 297 and 583.

177. Ibid., at 419.

178. See supra note 3 at 18. The most striking example was concerning the situation of the vent in Unit 1 which was not communicated to NISA or the prime minister's office.

179. Aoki and Rothwell, supra note 81 at 3

180. Supra note 93 at 341.

181. Ibid.

182. See 2001 Articles on Responsibility of States for Internationally Wrongful Acts, UN GAOR, 56th Sess., Supp. No. 10 at 43, U.N. Doc. A/56/10 (2001), art. 12.

183. Convention on Early Notification of a Nuclear Accident, 26 September 1986, 1457 U.N.T.S. 133, 25 I.L.M. 1369 (27 October 1986) [Early Notification Convention].

184. Ibid., art. 2(1).

185. IAEA, “2nd Extraordinary Meeting of the Contracting Parties to the Convention of Nuclear Safety: Final Summary Report” (27−31 August 2012)

186. Ibid., at para. 3

187. IAEA, “Guidelines Regarding the Review Process Under the Convention on Nuclear Safety” (8 October 1998)

188. IAEA, “Guidelines Regarding National Reports Under the Convention on Nuclear Safety” (8 October 1998)

189. IAEA, “Convention on Nuclear Safety: Rules of Procedure and Financial Rules” (4 April 2011)

190. See supra note 185. These objectives are annexed to the Summary Report after the meeting.

191. Supra note 185 at paras. 3−6.

192. Ibid., at para. 8

193. Ibid., at 1.

194. Ibid., at 2.

195. Ibid., at 33.

196. Ibid.

197. See supra note 95. For example, the NSC reconsidered the Regulatory Guide for Reviewing Seismic Design, and proposed their amendment proposals to this Regulatory Guide in March 2012.

198. See supra note 93 at 470.

199. Kamminga, supra note 19 at 881

200. KISS Alexandre, “State Responsibility and Liability for Nuclear Damage” (2006) 35 Denver Journal of International Law and Policy 67 at 77

201. ZEIDAN Sayed, “The Procedural Rules and Obligations under International Law for Construction of a Nuclear Installation: Prevention and Reduction of Environmental Damage” (2011) 23 Georgetown International Environmental Law Review 263 at 286

202. NSC, supra note 4, art. 7.

203. BRUNNEE Jutta, “Of Sense and Sensibility: Reflections on International Liability Regimes As Tools For Environmental Protection” (2004) 53 International and Comparative Law Quarterly 351

204. See supra note 95 at 39. Even in its national report for the 2nd Extraordinary Meeting of the NSC, Japan recognized the cases in which information—such as the outflow of water with high-level radioactivity and the discharge of stagnant water with low-level radioactivity to the sea in April 2011—was not always fully shared in advance with neighbouring countries.

205. Pulp Mills on the River Uruguay (Argentina v. Uruguay), [2010] I.C.J. Rep. 14.

206. Ibid., para. 197.

207. Ibid.

208. SANDS Philippe, Principles of International Environmental Law, 2nd ed. (Cambridge: Cambridge University Press, 2003) at 877

GURUSWAMY Lakshman, International Environmental Law in a Nutshell, 2nd ed. (Eagan, MN: Thomson/West, 2003) at 629

209. It was a Soviet nuclear-powered surveillance satellite that crashed over Canada on 24 January 1978.

210. Birnie, Boyle, and Redgwell, supra note 24 at 518

211. Guruswamy, supra note 208 at 629

212. Kiss, supra note 200 at 77

213. Kamminga, supra note 19 at 6

214. Supra note 185.

* Teaching Fellow, Law School, University of Birmingham, Visiting Professor at the Washington and Lee University, School of Law (August 2011 to January 2012).

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