INTRODUCTION
Nuclear Energy is the form of energy that is released from the nucleus of an atom. Nuclear energy is produced either by nuclear fusion (a combination of two or more nuclei) or by nuclear fission (a single nuclei of an atom split into several parts)[1]. This nuclear energy is harnessed by the world today for the mass production of electricity, that is generated via nuclear reactions. However, these nuclear reactions involve generating a lot of nuclear waste as a by-product which varies at different levels of radioactivity[2]. These radioactive nuclear wastes pose a major threat to the environment as they cause contamination of water and air. Apart from this, these materials are dangerous to human health and life in the form of life-threatening cancer and can remain active for thousands of years. These activities can sometimes turn out to be hazardous, causing damage to life and property[3]. As a relief towards such unforeseen events that might occur in the form of nuclear cataclysm, laws of Civil Nuclear Liability are formulated with the vision to compensate the victims of damages caused due to nuclear disasters and convict those who are liable for such perilous mutilation[4].
IMPACTS OF NUCLEAR POWER ON ENVIRONMENTAL CHANGE
Nuclear Power results in various environmental changes that can be both positive and negative[5]. Nuclear energy is a type of renewable energy that generates approximately one-third of the total world’s greenhouse-free electricity[6], thus, serving as a better means of energy production than fossil fuels. When managed efficiently, nuclear power proves to function as more environmentally friendly, thus becoming a crucial aspect for meeting climate change goals[7]. However, the environmental impact of nuclear energy is complicated, especially when the issue of radioactive waste arises, which reflects a unique problem in the process of nuclear energy generation. In addition, the construction of new nuclear energy plants and the mining of uranium for generating the reaction affects the environment negatively. The classical underground (open-pit) mining of uranium ore can degrade the environment in and around the concerned ore.There is also a potentially catastrophic risk involving nuclear reactors which generate nuclear power in a variety of ways, such as, when overheated, the reactors release radioactive gases and effluents into the atmosphere or when situated near a waterbody, the heat released from the reactors harms the aquatic life of that waterbody.
CIVIL LIABILITY FOR NUCLEAR DAMAGE: INDIAN SCENARIO
Nuclear damage is spontaneous and can occur as an unforeseen event, which is bound to cause heavy damage, especially about nuclear disasters that are bound to affect the masses at large. Therefore, to counter the damage caused by such incidents and compensate the victims of such disasters along with setting out the liabilities of the owners, laws related to civil liability for nuclear damage are formulated[8]. In India, The Civil Liability for Nuclear Damage Act (CLNDA) was passed in 2010 to establish a speedy compensation mechanism for the victims of nuclear mishaps[9]. The CLNDA has been formulated taking the reference of International Conventions[10] (which work as an umbrella organization in this field) such as The Convention on Supplementary Compensation (CSC) 1997[11] (India was a signatory, but ratified the convention in 2016), the Vienna Convention on Civil Liability for Nuclear Damage, and the Convention on Supplementary Compensation for Nuclear Damage, to establish a minimum amount for compensation at the union level. This act is also viewed as the basis of the activation of the Indo-U.S. civilian nuclear agreement that was brought in 2008[12].
Civil Liability for Nuclear Damage works as a liability establisher for unanticipated events. In the Indian context, it establishes liability on the operator[13] of the nuclear power plant as a No-fault Liability or Strict Liability[14], wherein the operator of the nuclear power plant is held liable regardless of the fault in case of damage caused due to nuclear power. The CLNDA further mentions a specific amount of 1,500 Crores that the operator of the nuclear power plant is bound to pay in case of accidents along with the necessity of the operator to cover the expenses of the liability through insurance and other modes of financial security[15]. The CLNDA also expects the government to get involved when the damages to be paid by the operator exceed the mentioned limit. It directs the Union government to provide an amount equivalent to 300 million, as Special Drawing Rights (SDR), thus, showcasing its liability towards the catastrophe.
SUPPLIER LIABILITY CLAUSE: A NECESSITY AND ISSUE
The Civil Liability for Nuclear Damage Act introduces the concept of Supplier Liability[16] in section 17(b) of the act which enables the operator of the nuclear power plant the right to opt for recourse (after paying their share of compensation) in case the nuclear disservice has occurred as a consequence of an act conducted by the supplier or his employee. It also includes within its drafting, the supply of material or equipment with defects or sub-standard services.
This concept is diametrically opposite to the core principle of the international legal framework which manifests the exclusive liability of the operator of a nuclear plant and no other individual. This exclusive liability has been established as a part of the international legal framework to counter the excessive liability claims against the supplier of nuclear equipment to safeguard their business. However, in exceptional cases, the CSC prescribes two conditions under which the national law of a country is allowed to provide the operator with the right to extract liability from the supplier[17]. These conditions are, when the liability is expressly agreed upon in the contract between the parties or if the nuclear accident was a result of an act or omission carried out with the intent to cause damage by the supplier.
Within the Indian framework of governance, the supplier’s liability is upheld, as the damage and destruction have a fair chance of being caused by gross negligence or intentional acts of the supplier of the machinery. This category of the incident first came into the picture during the Bhopal Gas Tragedy in 1984, wherein Methylisocyanide gas leaked out of the plant due to defective machinery parts, and the government went beyond the provisions of suppliers’ liability mentioned in CSC.
The issues about the Suppliers Liability Clause are the ambiguities such as the absence of definition as to types of nuclear damages, the vulnerability of suppliers related to a potential risk of being introduced to unlimited liability under the CLNDA, problems over determining the upper limit of insurance that can be claimed, deterrence of the foreign and domestic suppliers and an open way of incorporating criminal liabilities against the supplier in case of a nuclear accident[18].
The Indian government, however, clears its stance on the issue of Suppliers’ Liability, stating that the Indian laws align with the international treaties, mentioning section 17(b) of CLNDA 2010 which ‘permits’ suppliers’ liability but does not make it necessary for the operator to apply for the right to recourse.
ADDITIONAL ISSUES RELATED TO CLNDA
Some supplementary concerns arise as to the functioning of CLNDA. Matters such as monetary capping of compensation[19], where there is an upper limit set to the liability of the owner of the nuclear power plant, lead to the exploitation of the taxpayers’ money to deal with disasters that have a potential risk of occurring[20]. In addition to this, there is no foreign jurisdiction involved in disasters involving foreign suppliers[21]. This thus fundamentally boils down to the issue which involves contracts with foreign suppliers who act as foreign entities to Indian Law, thus forbidding Indians to seek compensation from courts of foreign jurisdiction[22].
CONCLUSION
The emergence of nuclear power has brought with it its own set of merits and demerits to the world. On one hand, it stands as a renewable source of generating electricity which produces the least carbon footprints, but on the side of the coin, it can lead to disaster that the world currently fails to deal with. The most sagacious way of handling such unforeseen events is to practice preventive measures. On that account, there have been world treaties signed and conventions formulated to measure the loss and compensate the victims of any disaster that occurs due to ill-management of the nuclear power plants. In a similar line, laws have been formulated in India which put forward the civil liability related to such hazardous projects. The Civil Liability of Nuclear Power Act introduces the concept of Strict or No-fault liability, which compels the operator of the nuclear power plant to compensate the victims. Over the years, laws related to strict liability and civil liability have developed in India, projecting their way towards better governance and security of the citizens.
Author(s) Name: Maahi Kachroo (Symbiosis Law School, Pune)
Reference(s):
[1] ‘Nuclear Energy’ (Britannica, 29 December 2023) <Nuclear energy | Definition, Sources, Uses, & Facts | Britannica> accessed 5 January 2024
[2] Martina Igini, ‘The Advantages and Disadvantages of Nuclear Energy’(EARTH.ORG, 28 January 2023)< The Advantages and Disadvantages of Nuclear Energy | Earth.Org> accessed 5 January 2024
[3] Ibid
[4] The Civil Liability for Nuclear Damage Act 2010
[5] Martina Igini, ‘The Advantages and Disadvantages of Nuclear Energy’(EARTH.ORG, 28 January 2023)< The Advantages and Disadvantages of Nuclear Energy | Earth.Org> accessed 5 January 2024
[6] ‘Nuclear’ (Energy.gov)< Nuclear | Department of Energy> accessed 5 January 2024
[7] ‘Nuclear Power Myths and Facts’ (Department of Atomic Energy) <Myths and Facts | Department Of Atomic Energy | India (dae.gov.in)> accessed 5 January 2024
[8] The Civil Liability for Nuclear Damage Act 2010
[9] ‘FAQ 2.0 Version on CLND Act 2010’ (Department of Atomic Energy) < FAQs Version 2.0 on CLND Act 2010 | Department Of Atomic Energy | India (dae.gov.in)> accessed 5 January 2024
[10] ‘Liability for Nuclear Damage’ ( World Nuclear Association, March 2021)< Civil Liability for Nuclear Damage | Nuclear Insurance – World Nuclear Association (world-nuclear.org)> accessed 6 January 2024
[11] Ibid
[12] James A Glasgow, ‘ Implication of CSC for Suppliers’ (Nuclear Engineering International, March 2015)< Implications of the CSC for suppliers (pillsburylaw.com)> accessed 6 January 2024
[13] ‘Liability for Nuclear Damage’ ( World Nuclear Association, March 2021)< Civil Liability for Nuclear Damage | Nuclear Insurance – World Nuclear Association (world-nuclear.org)> accessed 6 January 2024
[14] The Civil Liability for Nuclear Damage Act 2010, s 4(4)
[15] The Civil Liability for Nuclear Damage Act 2010, s 6
[16] The Civil Liability for Nuclear Damage Act 2010, s 17 (b)
[17] James A Glasgow, ‘ Implication of CSC for Suppliers’ (Nuclear Engineering International, March 2015)< Implications of the CSC for suppliers (pillsburylaw.com)> accessed 6 January 2024
[18] Diksha Munjal, ‘What are the ambiguities in India’s Nuclear liability law’( The Hindu, 26 April 2023) < Explained | What are the ambiguities in India’s nuclear liability law? – The Hindu>accessed 7 January 2024
[19] Ibid
[20] Ibid
[21] Ibid
[22] Ibid
