March 15, 2010 2:04:15 am
Even before the Civil Liability for Nuclear Damage Bill was introduced in Parliament,it had become a subject of intense debate in the media and the analyst circle,much of it hostile to the bill. The hostility against the bill was on two counts. One,political primarily on the ground that it was formulated and is being enacted on the wishes/dictates of the US government/business and two,economic that it was working against market forces by generously subsidising the nuclear operators and their suppliers. This article will deal with the former aspect of the criticism.
There are currently 30 countries that operate civil nuclear power,with 436 nuclear power plants (NPP). Of these 30 countries,28 countries covering the operation of 416 NPPs,have some sort of nuclear liability act in force in their territory either as a result of adherence to some international liability regime (either the IAEAs Vienna Convention for Nuclear Damage of 1963 or the OECDs Paris Convention on Third Party Nuclear Liability in the Field of Nuclear Energy, 1960),or through enacting a national liability law. Twenty two of the 28 countries are party to one of the two international conventions. The others,including Canada,China,Japan,Republic of Korea and South Africa have national laws on nuclear liability.
Only two countries operating 20 NPPS between them India (18) and Pakistan (two) are neither members of any international convention nor have any national legislation. Of these two,it is only India has the plans and opportunity to substantially increase the share of nuclear power in their domestic energy scenario. There is no provision in the Indian Atomic Energy Act,1962 about either nuclear liability or compensation for nuclear damage due to nuclear accident or incident. Nor are there any other laws that deal with nuclear liability.
It was in this context that the new law has been proposed and also on the necessity of joining an appropriate international liability regime. What the Indian government has proposed in this bill is in line with the best current international practice for a country protecting its nationals against nuclear damage as a result of nuclear accident or incident. It has nothing to do with any US pressure on India to enact such a bill,although it is fact that the US,along with other Western nuclear suppliers,including France,have been urging India to enact such a legislation in line with the international practice followed by the other 28 countries.
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Having established that the Indian bill is not out of context in the international environment,let us examine the charge that it favours the US by attempting to protect US reactor suppliers from claims of liability and compensation. First of all,the bill has no specific reference to any particular country supplier. Its provisions are applicable to suppliers from all countries. The question to be addressed is: is the Indian act any different from either the international conventions or any of the national laws of the six countries that do not subscribe to any international conventions?
The two international conventions have the following characteristics:
1) They channel the liability exclusively to the operators of the nuclear facilities;
2) The liability of the operator is strict and absolute. The operator is held responsible irrespective of fault except for few reasons such as acts of war,insurrection etc.
3) Liability of the operator may be limited or unlimited depending on the convention followed or national legislation.
As for countries that follow only national laws,they too follow the international conventions by following the above three requirements.
In Canada,the licensees have absolute and exclusive responsibility and suppliers of goods and services are given absolute discharge of liability (Articles 10 and 11 of the Canadian act). Chinas nuclear liability regime was issued in 1986 as an interim measure in connection with the French-designed Daya Bay nuclear power plant. It contains most of the elements of the international nuclear liability conventions (e.g. channeling of absolute nuclear liability to the plant operator and exclusive court jurisdiction). Japan too follows a similar practice (Art. 3(1) and 4(1) of the Japanese Act of Compensation for Nuclear Damage,1961) Republic of Korea too follows the same convention (Art. 3(1),3(3) and 3(5) of the Act on Compensation for Nuclear Damage). Republic of South Africa has a similar legislation challenging absolute liability on the operator (Art. 30(1) of the National Nuclear Regulator Act,1999.)
The Price-Anderson Act of US is slightly different. While it imposes economic channeling of liability to the nuclear facility operator,suppliers to nuclear facilities subject to the act can be legally liable for damages. But even that liability is channeled to the facility operator and to the financial protection and/or government indemnity that the operator maintains. Hence in US,the supplier is insured under the nuclear liability facility form policy written by the American Nuclear Insurers and purchased by the facility operator. Thus although the supplier is legally liable,he is not required in any manner to compensate the operator.
Both the international conventions and the various national laws give the operator a right of recourse where such right is expressly provided for in a contract in writing. This could be an avenue for an operator to recover his/her liability under certain circumstances. The Indian bill,too,provides for such recourse.
Hence the Indian bill is no way more lenient towards either the operator or the supplier than any of the conventions or national laws,except in respect of the operators liability which varies across different countries in some countries it is more than what is envisaged in the Indian bill,in others it is less.
Thus the proposed Indian bill on nuclear liability is (1) in no way more lenient than the practice followed in any of the other 28 countries that operate NPPS and have nuclear liability laws (except Pakistan); (2) is no more lenient towards suppliers,including US suppliers,than any of the other 28 countries.
Therefore,opposition to the bill on the grounds that it favours the US is absolutely without foundation.
The writer is visiting fellow at IDSA and National Maritime Foundation
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