Countries have been looking to nuclear energy as one of the means to provide clean power for the past few decades. Though nuclear energy has shown an alternative path from the conventional fuels, the damage caused by accidents in a nuclear power plant tends to have a lasting effect on the environment. Nuclear damage, as the name suggests, is the undesired damage caused due to nuclear accidents. The damage can either result in the destruction of infrastructure or casualties or both. Some notable examples of damage caused by nuclear accidents can be recollected from incidents like the Chernobyl accident, Three Mile Island accident and the more recent Fukushima Daiichi nuclear disaster.
The civil liability laws for nuclear damage in some countries have serious flaws that favour only a few parties involved. Though the Paris Convention and Vienna Convention have been adopted by countries, these liability laws are restricted to a small group of United Nations Member States who are part of organizations like IAEA and the OECD. Multilateral treaties have also been adopted by a number of countries, but are only as effective as the existing nuclear liability laws or less. The above stated issues give rise to the argument that Civil Liability for Nuclear Damage must be brought under International Law to level the field for victims of all countries affected by nuclear accidents.
Different countries have different policies when it comes to handling their nuclear power plants and the damages caused by them. Certain laws like those which hold the operator liable for the accident caused and a minimum liable amount that is required to be paid to the victims are common in almost every country with one or more nuclear power plants. However, these obligations can be breached to act in favour of one or more parties involved. Transboundary impact of nuclear accidents can have grave impacts on neighbouring countries. There are possibilities of victim nations being paid a lower liability threshold by large nuclear energy producing nations in cases of an accident. The impact that nuclear damage can have on the environment was taken into consideration during the Vienna Conventions. Until then, such factors were also neglected.
In 1997, the IAEA introduced another International Nuclear Liability regime called the Convention on Supplementary Compensation (CSC) to align the Price-Anderson Act of the United States with International Law. This was done in addition to the existing Paris and Vienna Conventions and the 1988 Joint Protocol. The CSC took into consideration transboundary damage and ruled 50 percent of the fund to be allocated for this. But, the CSC states that the decision to pay the compensation amount to a non-contract country rests with the installation country which can again be discriminative in many cases.
Some countries have limited liability requirements, while others have unlimited liability regimes, which further complicates the goal of achieving harmonization. Developing nations like Vietnam are considering whether to become a party to the Vienna Convention and has not yet framed its position on nuclear liability. South Asian countries like Malaysia and Indonesia have domestic laws that are in accordance with the international nuclear damage liability laws. However, these laws do not discuss the possibility of transboundary incidents, and the liability thresholds are relatively low compared to other nuclear energy–producing countries.
India, one of the countries emerging into a nuclear power giant, passed a Civil Liability for Nuclear Damage Act in 2010. This was a highly debated and controversial act which was claimed to favour US nuclear reactor manufacturing companies. Certain clauses (namely clauses 6, 17, 18 and 35) in this Act came under immense criticism for not being on par with the laws of other nations. India signed the CSC in 2010 and ratified it in 2016. However, it is still unclear if India’s domestic liability law adheres to the requirements of the CSC.
NEED FOR REFORM:
In the aftermath of the Fukushima accident (Japan, 2011), many industries in Japan were affected. Since this accident occurred on the eastern side of Japan, the transboundary impact on other countries has been insubstantial. But, the true extent of damage can only be estimated after a few years under constant observation. At this stage, liability and compensation issues have been restricted to the jurisdiction of Japan alone. This has further underlined the lack of an International Liability Law. It is the duty of all nuclear energy producing countries to regularly revise regulations regarding liability thresholds. An International Nuclear Liability Law is fast emerging as the best option to help protect smaller and non-nuclear countries from the whims of powerful nations. This will also ensure that countries which are not a part of the CSC, Paris and Vienna Conventions get the required assistance both financially and otherwise.
With many countries now adopting nuclear energy as a means to meet their power demands, it is imperative that they all come under an international framework such as the CSC or the Paris or Vienna Conventions to provide equal and unbiased treatment to the victims involved. Time is of the essence and a faster approach towards framing an International Civil Liability Law for Nuclear Damage is necessary before more nuclear plants become operational all around the globe.
Jhanavi M, Civil Liability for Nuclear Damage under International Law, Ex Gratia Law Journal, (March 5, 2021), https://exgratialawjournal.in/blawg/international-law/civil-liability-for-nuclear-damage-under-international-law-by-jhanavi-m/.