What is Civil Nuclear Liability?

Civil Nuclear Liability basically outlines the legal responsibilities and just compensation of victims in an event of a nuclear disaster. What it ensures is that the victims swiftly and fairly get their due compensation and the party responsible is held legally accountable for whatever damage that has been caused. The International Atomic Energy Agency acts as a central repository for various international agreements pertaining civil liability in an event of a nuclear disaster which also includes cross border damages.

Which international agreements govern civil nuclear liability?

The major conventions regarding civil liability during a nuclear disaster mentioned as per the International Atomic Energy Agency website are the Vienna convention on civil liability for nuclear damage, Joint Protocol relating to the application of the Vienna convention and the Paris convention and the Convention on Supplementary Compensation for nuclear damage. What do these conventions talk about?

• Vienna Convention on civil liability for nuclear damage: Concluded at Vienna on 21^st May 1963 coming into force on 12^th November 1977. Amended once through the 1997 protocol to amend the Vienna convention. This convention establishes several key factors pertaining nuclear liability defining what is nuclear damage and nuclear incident, outlining the operators absolute and exclusive liability, financial security and the compensation procedure to the Jurisdiction of courts where the nuclear incident occurred. What this convention ensures is clear responsibility for the incident and a quick and fair compensation for the victims.
• Joint Protocol relating to the application of the Vienna Convention and the Paris Convention: The Paris convention on Third party liability in the field of nuclear energy is a convention of the Organisation for Economic Co-operation and Development in 1960 coming into force in 1968 after which it has been amended three times. While both the conventions essentially share the same core characteristics and qualities one of the key differences between the two is that there weren’t states that were party to both these conventions. Thus, the joint protocol came about in order to address the significant difficulties that could build up due to this separation. The joint protocol establishes a link between the Vienna convention and the Paris convention, which clearly states that either the Vienna convention or the Paris Convention will be applied in an event of a nuclear incident, while excluding the other. At the same time clearly establishing jurisdiction rules, the protocol provides means to recognise and apply each other’s rules.
• Convention on Supplementary Compensation for Nuclear damage (CSC): The CSC was adopted in Vienna in the year 1997. This convention was centred on providing additional support and strengthening the existing international and domestic nuclear liability regimes. It recognises the existing regimes around the globe and establishes a worldwide supplementary liability regime that enhances measures that are already in place. This convention establishes compensation through a two-tiered system where initially the installation state ensures the initial amount which must be at least 300 million Special Drawing Rights. Beyond this initial amount the contracting parties to this convention are bound to make available public funds based on the formula detailed in article IV of the convention. This helps ensure an additional higher overall compensation amount in cases of severe nuclear disaster.

What does India’s Civil nuclear liability look like?

The Atomic Energy Act of 1962 acts as the central authority system for India’s atomic energy programme granting the central government monopoly over every aspect of nuclear materials and technologies, it is like a handbook for India’s nuclear backbone. From mining to power generation and waste disposal the central government itself or through its designated authorities or government companies exercises control, here a government company is defined as the one where the central government owns more than fifty one percent of the paid-up share capital. India signed the Convention on Supplementary Compensation for Nuclear Damage on October 2010 and ratified it on February 2016, New Delhi is neither a signatory to the Vienna Convention on Civil Liability for Nuclear Damage nor the Joint Protocol relating to the application of the Vienna convention and the Paris Convention.

What is the Civil Liability for Nuclear Damage Act (CLNDA) 2010 of India?

The Indian government ensures accountability and compensation for damages caused in an event of a nuclear disaster through its Civil Liability for Nuclear Damage Act 2010. Through this act the Indian government establishes a no-fault liability regime channelled to the operator of the nuclear installation. The central government may specify the nature and terms of financial security required to obtain by the operator. The maximum amount is capped at 300 million Special Drawing Rights or a higher amount specified by the central government on notification. The minimum liability the operator has to ensure as financial security and is covered through insurance in case of a nuclear disaster are as follows.

• A liability of rupees 100 crores of a Nuclear Power plant with a thermal power output of up to 10 MW.
• A liability of rupees 300 crores for a Nuclear Power plant with a thermal power output more than 10 MW.
• A liability of rupees 100 crores for an operator of a reprocessing plant or an installation involved in the fabrication of nuclear fuel

Although the CLNDA 2010 comprehensively ensures prompt compensation in an event of a nuclear disaster through its no-fault liability regime on the operator of the nuclear installation. There is a crucial provision within the act that is section 17 (1) which allows the operator to seek reimbursement from the supplier through what is known as the right of recourse, If there is a contractual obligation which is specifically mentioned in the contract, if there are defective products or sale standard services in which case the operator even without a contractual clause can seek compensation from the supplier or in case of an intentional damage. The act does not directly hold the suppliers responsible but instead allows the operator to pursue the supplier for repayment under the above defined conditions.

Why is the Indian Government set to amend its Civil Nuclear Liability law?

India lacks foreign investments in its nuclear energy sector due to its state monopoly and the CLNDA 2010, the Atomic Energy act 1962 specifically prohibits private investment in nuclear powerplants. The provision for the right to recourse makes the suppliers vulnerable which is not in par with the international norms which solely place the accountability on the operator of the nuclear installation. Which has deterred foreign suppliers and hampered key agreements such as the 2005 US-India civil nuclear agreement as private companies from within the US took a setback into entering into India.

For India to achieve its target for growing the nuclear energy capacity from 8,180 MW to 22,480 by 2047 which is crucial for India’s net-zero emissions goal by 2070, New Delhi needs to amend its nuclear laws to allow foreign companies to foster within India aligning India’s civil nuclear liability with the global standards.

A focal point of India’s Nuclear Energy mission is Small Modular Reactors (SMR) with a goal to operationalise at least five indigenous SMR’s known as Bharat Small Reactors by 2033, for which rupees 20,000 crores has been allocated. Amending the strict laws will also allow India to become a major player in the world in exporting the knowledge of Fast Breeder Reactors in which India possesses a strong knowledge and advanced capabilities. Along with its expertise in Thorium based fuels of which India has vast reserves India can further develop on it and position itself as a global leader. The question now is not why but when will India amend its civil nuclear liability regime.