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Nuclear Energy Accountability- Issue and Challenges on

International Regime
Author- OSHIN SURYAWANSHI

Introduction-
Climate change is the current issue in the present time and it will increase pressure on States and
international community to change fuel consumption and convert toward marginalize fossil fuel
and research and find the eco-friendly fuel which will create less pollution on environment.
Research of alternative energy resource invent use of radioactive material to produce energy
because it will create less pollution and give more and more power to any establishment. With
the help of this nuclear power can be used for energy production.

Nuclear energy is safe if country and other entity is using it for peaceful purpose but increasing
terrorism and poor security measures and storage capacity increase pressure on international
authority to negotiate with the measure countries and prepare an international agenda and frame
policy to misuse nuclear energy.

Nuclear industries is growing subject in present era and it’s create responsibility to authorities for
making laws for nuclear energy because if any disaster happen and no law is available so people
will suffer more because companies and countries are not accountable for their act. Any disaster
is not restricted by national boundaries, so other country also suffer some human and other losses
because of disaster.

Principle of tort laws provide compensation for any negligence act of anybody but victims of
nuclear disaster suffer huge losses and Law of Tort is not adequate to provide proper care and
compensation.

International law on Nuclear Energy was developed after incident of Ukrain power plant of
Chernbyl, in former USSR in April, 1986. After a disaster international community realize a
special legal framework for nuclear energy and a special agency which will deal in nuclear
energy issue and differentiate between nuclear energy for civil purpose and use in weapons.
International community also realize a special authority to inspect power plants to check the use
of radioactive material and also check that it is not using for wrong purpose.

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Evolution of Rules -

The Chernobyl incident clear that existing nuclear law on international level is not proper to
provide adequate and compensation particularly to the parties who suffered in nuclear incident
because laws on that time have limited territorial application but evolution of law on the field on
nuclear energy was stared earlier.

International law on the field of nuclear energy is started with establishment of International
Commission on Radiological Protection (ICRP) in 1928. ICRP was a Non-Governmental
organization established during International Conference of Radiology. ICRP is dealing with
radiation protection. During World War- I use of Hydrogen Bombs and other chemicals
weapons was used in very huge manner and its effect in human body was very huge and many
death was accrue because of use of these weapons but this body is not adequate to define rule
and procedure for not using these weapons during war on civilized society.

After World War-II United Nation pass a resolution on General Assembly in 1955 for
establishment of United Nations Committee on the Effects of Atomic Radiation (UNSCEAR).
Main objective of this body is to evaluate doses, effects, and risk from ionizing radiation on a
worldwide scale.1The work of these bodies is to establishment basic standard with the help of the
other international organization and reasonable organization working in different reason on any
field.

After one year later in 1956 International Atomic Energy Agency was established. The main
reason to start IAEA was to establish an independent body which include scientist and researcher
who will give proper recommendation to any country or entity relating to protection of
Radiology.

The main objective of IAEA to promote “the contribution of atomic energy to peace, health, and
prosperity throughout the world”2. It also define that any material information, facilities and

1
Resolution 913 (X), adopted 3 December 1955, the founding resolution
http://www.unscear.org/unscear/en/general_assembly.html#Resolution%20913%20(X)
2
International Atomic Energy Agency, “Statute of the IAEA,” www.iaea.org/About/statute_text.html (hereinafter
IAEA Statute).

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equipment and information cannot be used for any military purpose. After establishment of
IAEA can make proper rule for establishing and implementing safeguards.

Shifting use of nuclear energy form war to civil purpose its increase responsibility of
international organization because if there is some irregularity and disaster happen because of
radioactive material who will be responsible for damage and provide compensation to sufferer.

International legal framework-

Basically four main convention is available relating to Nuclear Energy, one of 1960, two of 1963
and another one of 1971. Paris Convention on Third party Liability in Field on Nuclear
Accidents was the first efforts made by international community to regulate very wide and
dangerous nuclear regime.

In 1960 in the city of Paris many European countries meet to discuss the third party liabilities in
the field of nuclear energy. They agree on certain condition to provide proper third party
liabilities. Paris Convention is regional in nature and 14 Western European state was party of it.
All signatory state agree to work within the framework of Organization for Economic Co-
operation and Development (OECD). In year 1963 some points was added in Paris Convention
by Brussels convention held on 1963.

In 1963 Vienna Convention on Civil Liabilities for Nuclear Damage was conducted with the
assistance of IAEA. It was held that this convention have world wide scope and it’s define the
operator’s liability in case of any accident. The Convention is an instrument to which all States
may follow paying little mind to whether they are gatherings to any current nuclear liability
conventions or have nuclear establishments on their regions.3 VCCLND have worldwide scope
but only 14 countries become the parties and ratified it.

Both Paris Conventions and Vienna Convention deal with the liability of the parties, both the
conventions are based on strict and exclusive liability of operators. On liability concept both
conventions follow limited liability concept and provide minimum amount of compensation for
any accident but Paris Convention failed to define proper concern about victims of nuclear

3
Vienna Convention on Civil Liability for Nuclear Damage
https://www.iaea.org/publications/documents/conventions/vienna-convention-on-civil-liability-for-nuclear-damage
excess on- 04-04-2015

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accident. In the matter of jurisdiction it will limited to state on which some act is happen and
financial coverage is provide with insurance and other securities but Brussels convention have
concept of state funding in case of happening of any event. It also discuss about applicability of
conventions and national laws of the country to provide compensation to victims without any
discrimination on nationality, domicile and residence.

To increase the strength of existing regime in 1988 Joint Protocol relating to application of
Vienna and Paris convention was concluded. The objective of this application to extent and
increase the scope of both the convention and reduce the conflict of laws and same application of
laws in international regime.

In order to strength the nuclear liability government of different countries took a significance
step to improve liability in case of damage or accident. At a Diplomatic Conference at IAEA
Headquarters in Vienna in year 1997, more than 80 states adopted amended protocol on
VCCLND and also adopted a supplementary compensation for Nuclear Damage. It is set in this
convention that possible limit of operators liability on nuclear filed is not less than 300 million
USD. It also define if any country need some special package if any disaster happen so
additional amount will be provided through contribution of state parties and United Nations. This
convention is applicable to all these state which is party of any nuclear conventions or installed
any nuclear plants in their territory.4

As result of these conventions, the international community has been able to define and
introduce certain new principles which help other countries to evolve their own principle and
legal framework and national laws for nuclear energy. As part of this Government of India
introduce Indian Nuclear Liability Act, 2010 to improve fundamental principle define in these
conventions.

Evolution on Liability Principle -

Law of Torts provide compensation to victim if any act happen by negligence but in order to
provide adequate and speedy compensation in case of nuclear disaster, is not come under law of
Tort because it is unable to provide huge amount of compensation. Hence states utilizing nuclear

4
Vienna Convention on Civil Liability for Nuclear Damage
https://www.iaea.org/publications/documents/conventions/vienna-convention-on-civil-liability-for-nuclear-damage
excess on- 04-04-2015

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energy for civil purposes created essential principles of nuclear liability putting aside the normal
principles of tort law that for the premise of enactment for nuclear liability in most develop
nations.

 Strict Liability Principle- using of nuclear energy for civil purpose is conditional
because it is very dangerous activity. In this case operator of nuclear plant will be strictly
liable for damage cause to normal public or third party if any nuclear accident occur at
the time of installation or during the transport of nuclear material.
 Exclusive Liability Principle- operator of nuclear plant will be liable for third party
damage during transportation of substance or during work. It gives two type of benefits.
Firstly it provide identity of victim and data who acutely suffer losses. Secondly, exempt
supplier and transporter from purchasing huge insurance policy that will reduce cost of
the nuclear power plant but certain country did not provide immunity to supplier. India
define compensation from supplier to operators if any accident happen.5 The Kiev
Protocol of 2003 provide strict and fault liability on both the parties and according to this
conventions supplier will not be immune from no- fault liability umbrella.
 Limited Liability Principle- operator’s liability is limited in nuclear accident. This
principle was introduce to protect the operator form unlimited liability in nuclear
installations because if liability was not fixed then assets of company will liable to pay
amount decided by court. This principle is working according to “quid pro quo” because
victims will be liable to get compensation irrespective of fault or no fault of operators.
 Liability must be secured- suppliers of nuclear material are liable to maintain limited
security in respect of third party liability for this purpose they can take proper insurance
for any insurance company because it is the best suitable form available, if they want to
take any other option they can take such as state owned banks guarantee or self-
assurance.
 Liability is limited in Time- It is very essential part of any liability principle to pay
amount in limited time period because delay of compensation coz so many deaths. To
provide proper and time bared compensation it is necessary for any nuclear power
establishment to make fund or primary security or primary insurance so money can be

5
Section-6 of Nuclear Liability Act, 2010

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provide to affected party in limited time period. According to rule in case of nuclear
accident money can be provide within ten years of accident to both personal injury and
injury to property.6 It is define in rule that victims of accident can file suit for damage
both personal and property within three year of discovery of damage against operators.7
In Civil Bill for Nuclear Liability provide time limit of five year for filing suit. Different
time limit is available in different countries for filing of suit and payment of
compensation but it is clear in all statute and convention that payment of damage is time
barred.

Analysis of Nuclear Liability Act, 2010

India is a developing country and need more sources to provide electricity to 125 Crore people of
country but because of its military nuclear program India did not singed Treaty on the Non-
Proliferation of Nuclear Weapons also called as NPT. The main objective of NPT is restrict
nuclear weapons and technology, to promote cooperation in the peaceful uses of nuclear energy
and to achieve goal of non-nuclear weapon world.8

Main reason behind India not sign treaty because of its Geo-political problem and if India sign
treaty it will face many sanction by International community because India need nuclear
weapons to restrict Pakistan and China in their own territory. India and Pakistan both countries
are nuclear state but not signatory of NPT but Pakistan have its own law for liabilities but India
didn’t have any law for it. In 2008 India and USA agree to transfer nuclear technology for civil
purpose under 123 agreement sign by both the countries but India need more powerful liability
law if any accident happens because India experience is very bad in Bhopal Gas Tragedy. India
need 20,000 MW nuclear power generation capacity by 2025 9. For fulfilling these shortage of
power India need to establish less pollution sources to generate electricity so its necessity of the
government to amend The Atomic Energy Act, 1962 to increase private participation.

6
Section- 18 of Nuclear Liability Act, 2010
7
The Price Anderson Act
8
"UNODA - Non-Proliferation of Nuclear Weapons (NPT)". un.org.
9
"Nuclear power generation to touch 6,000 Mw by next year". Business Standard. Retrieved 26 August 2010.

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Increasing private and other country participation need powerful to deal with liability clause if
any accident happens and for this Government of India introduce an act “Nuclear Liability
Act,2010”.

The Nuclear Liability bill have so many controversy in related to compensation and operators
liability. Section-6 of act talking about liability of operators. Section-6 define specifies amount
of damage recoverable from suppliers if any accident happen. This section define power of
central government to revise the amount of compensation time to time but is also define
maximum limit which will equivalent of three hundred million rupees.

Increase private players in nuclear market government of India came with new law. Main aim of
strict liability principle to increase investment in nuclear industries and ensure the possible
slandered of safety. No fault liability principle is beneficial for helpless victims.

Section-17 of Nuclear Liability Act, 2010 define operators claim to supplier in case of gross
negligence. This section only exist in India and not match with the principle of international law.
In many countries in world supplier are exempted from any liabilities in case of disaster.

Section-46 of the act states that “Nothing in the Act would prevent the operation of other laws in
force in the country”. This section clears that criminal liability in case of accident will remains,
as indeed do tort claims but civil court will not have jurisdiction in that matter. Nuclear Damage
Commission establish under section-35 of the act have jurisdiction in that matter. The main aim
of this provision to insure speedy justice to the victims.

Section-18 of the act define time limit of compensation to any accident is 10 year but Price
Anderson Act of USA provide 5 year time limit for compensation.10 But there is no insurance
poll in India due to inspection of facilities by international pools.11

Challenges in International Level-

1. State Immunity-

10
Price-Anderson Act of 1957, United States
The Encyclopedia of Earth Published in December 7, 2009
11
Liability for Nuclear Damage (World Nuclear Association)
http://www.world-nuclear.org/info/Safety-and-Security/Safety-of-Plants/Liability-for-Nuclear-Damage/
access on- 20-03-2015

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The question of state immunity arise when state is operator of nuclear power or
transportation of nuclear material is under state and some accident happens, so will state
be liable or state can take defense of state immunity?
12
Paris Convention and Vienna Convention is applicable and state and its agency cannot
take defense of state immunity. This is expressly define in both the conventions.13 It is
clearly define by both the conventions that state cannot take defense of sovereign
immunity in case of accident and victim can sue state in competent court.
2. Jurisdiction-
Jurisdiction is one of the most important issue in case of accident because without
competent jurisdiction court will not able to provide compensation to parties. As we
know disaster is not restricted by boundaries and it also affect other countries, so question
arise that which country have jurisdiction for that matter. International convention is only
applicable when state is signatory of international convention.14 In case of nuclear plant
installed in one state and sufferer belong other state so international convention will
apply.15 According to convention state where nuclear accident occurred have jurisdiction
to take action against parties if state is party of one of the convention. 16 In case any
accident occur outside the territory of party or place of accident is not clear so state in
which plant is situated have jurisdiction if state have party of convention.17

3. Recognition and enforcement of judgment-

A further procedural part of extraordinary functional significance concerns the inquiry in the
matter of whether a judgment which honors compensation for nuclear damage will be perceived
and authorized in another nation than that where the judgment was rendered. Once more, the
12
It metions that neither conventions covers damage due to military operations: see Art. I (1) (j) (i),
IV (3) (a) Vienna Convention, Art. 1 (a) (ii), 9 Paris Convention, Art. II (2) CSC (“for peaceful purposes”).
13
Art. 13 (e) Paris Convention; Art. XIV Vienna Convention. Art. XV CSC (which is not yet in force) leaves “the
general rules of public international law” — which include rules on state immunity — untouched.
14
Art. 2 Paris Convention; Art. V (1) CSC.
15
By virtue of the Joint Protocol (fn. 3) the territorial scope of the Paris and Vienna Convention can be regarded as
one since the Protocol (where it has been ratified or implemented) grants the rights under the Paris Convention to
victims in the territory of the Vienna Convention and vice versa.
16
Art. 13 (a) Paris Convention; Art. XI (1) Vienna Convention; Art. XIII (1) CSC.
17
See Art. 13 (b) Paris Convention; Art. XI (2) Vienna Convention; Art. XIII (3) CSC.

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circumstance contrasts between nations which hold fast to one of the nuclear liability
conventions and those which don't.

According to conventions and rule of international law judgement against operator is rendered by
court where accident happened because conventions define jurisdiction of court in that matter.

The nuclear liability conventions give further that judgements of a convention State which have
been rendered by a court which is equipped under the separate convention must be perceived and
can be upheld in all other convention States without the requirement for re-prosecution.18 In
other states judgement have same effect as domestic judgement19 but it can be restricted or
denied on basis of public policy.20

Conclusion-

Nuclear energy is very essential for reducing burden on other sources of energy but laws and
conventions relates to nuclear energy need more clarification because many states are using these
energy but not party of any conventions and if they sign conventions not ratified in their
domestic laws.

To change our future we must carefully lead our present. So any decision regarding nuclear
power should not be taken in haste and proper discussions and dialogues must be undertaken
before initiating any progress in the nuclear power programs.

18
Art. 13 (d) Paris Convention; Art. XII Vienna Convention; Art. XIII No. 5 CSC.
19
Art. 13 (d) Paris Convention; Art. XII (2) Vienna Convention; Art. XIII No. 6 CSC.
20
Art. 12 (1) (a) – (c) Vienna Convention; Art. XIII No. 5 (a) – (c) CSC.

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Reference-

 Nuclear Energy and Civil Liability: Two Way Street? By Akshay Sandaliya and Piyush
Singh
 Conventions, Treaties and other responses to global issue- vol. II- Nuclear Issues-
Catherine-Zoi Varfis
 Nuclear Liability: A Key Component of the Public Policy Decision to Deploy Nuclear
Energy in Southeast Asia by Mohit Abraham, AMERICAN ACADEMY OF ARTS &
SCIENCES
 International law and nuclear energy: Overview of the legal framework by Mohamed El
Baradei, Edwin Nwogugu and John Rames
 Lessons from Fukushima: Strengthening the International Regulation of Nuclear Energy
by Emily Benz on William & Mary Environmental Law and Policy Review Volume 37
Issue 3 Article 8
 Civil Liability for Nuclear Damage: Advantages and Disadvantages of Joining the
International Nuclear Liability Regime A paper by the International Expert Group on
Nuclear Liability (INLEX)
 Nuclear Energy and Environmental Protection: Responses of International Law by Elena
Molodstova on Pace Environmental Law Review Volume 12 Issue 1 Fall 1994 Article 10
 THE CIVIL LIABILITY FOR NUCLEAR DAMAGE ACT, 2010

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