Sustainability of Nuclear Power: A Legal Perspective

Sustainable development means ‘the use of resources in such a way that the needs of future generation are not compromised in any manner.’ The term is most relevant today because of the increasing usage of almost all resources without giving any importance to the progeny’s needs. This article would effectively deal with the importance and need of sustainable development of nuclear power along with an outline of the legal issues associated with it.

Introduction

“Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs[1].” Starting from the times when falling water was the only source of energy known to humans to the present situation where we have abundance of resources for our need as well as greed, humanity was lost somewhere in between.

The practical generation of nuclear energy was demonstrated on the second day of December 1942 when the first human-controlled and self-sustaining nuclear fission reaction was achieved at the University of Chicago under the guidance of Italian-born physicist Enrico Fermi[2]. The huge dependence on combustion must be reduced in the near future. Nuclear energy meets all the criteria of sustainability as defined by the U.N. Brundtland Commission[3].Nuclear power constitutes approximately 16% of the world’s electricity[4].

Nuclear Energy: Legislations in India

The term nuclear law is defined as “the body of special legal norms created to regulate the conduct of legal or natural persons engaged in activities related to fissionable materials, ionizing radiation and exposure to natural sources of radiation[5].”

The characteristic[6] features associated with nuclear law are:

  • Safety principle: greatest importance to be given to the life and property of individuals.
  • Prevention and protection principle: Subset of safety principle. Focuses on prevention and caution.
  • Precautionary principle:The Precautionary Principle holds that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing measures to prevent environmental degradation[7].
  • Security principle: security for known, intentional and accidental losses.
  • Responsibility principle: the operator or licensee is considered liable in a basic sense.
  • Permission principle: requirement of permission to perform tasks that may pose threat to individuals and environment.
  • Continuous control principle: monitoring the activities conducted by companies or industries to ensure at every point that it is happening in compliance to the regulations.
  • Compensation principle: provision of awarding compensation when there are nuclear damages or accidents.
  • Sustainable development principle: materials used may pose risk to the environment for a very long duration of time. Hence, sustainable development becomes crucial.
  • Compliance principle: Nuclear energy production has been deemed to involve particular risks of radiological contamination transcending national boundaries and there are many bilateral and multilateral instruments that aim at determining an international law of nuclear energy[8].
  • Independence principle: the powers of the regulatory authority thus formed are independent in nature.
  • Transparency principle: to the maximum possible information related to the use of nuclear power must be provided to the public. An exception might be when information is highly sensitive or needs to be private.
  • International cooperation principle: A quid pro quo arrangement was adopted by the IAEA, which promised cooperation in terms of research and development in the field of nuclear energy in exchange of non-acquisition of nuclear weapons[9].

The Atomic Energy Act, 1962

Section 2 of the act defines “atomic energy” as the energy released from atomic nuclei as a result of any process, including the fission and fusion processes[10]. It is a much wider legislation that deals with aspects such as:

  • Prevention of radiation hazards
  • Public safety
  • Safety of workers handling radioactive substances
  • Disposal of radioactive wastes in an environment friendly manner.

Atomic Energy Law at the Statutory Level: At the Statutory Level, India has two specific legislations that deal with atomic energy. They are namely, (i) The Atomic Energy Act, 1962 and (ii) the Civil Liability for Nuclear Damage Act, 2010[11].

The Civil Liability for Nuclear Damage Act, 2010

The Civil Liability for Nuclear Damage Act, 2010 also known as the Nuclear Liability Act was one of the most controversial acts passed by the parliament.The Act aims to provide a civil liability for nuclear damage and prompt compensation to the victims of a nuclear incident through a nofault liability to the operator, appointment of Claims Commissioner, establishment of Nuclear Damage Claims Commission and for matters connected therewith or incidental thereto[12]. The act fixes civil liability in cases of nuclear accidents.

  • It authorises only Nuclear Power Corporation of India Ltd to sue the manufacturers, thus taking away that right from the victims.
  • Time period allowed to claim compensation was reduced to 10 years, which a very short period of time.
  • The people who may be alleged responsible for any nuclear accident will undergo trials in the Nuclear Damage Claims Commissions and not in any civil courts. Thus, the reliability was challenged.
  • The constitutionality of the act has also been challenged.

Clause 17 of the act deals with the legal binding of the culpable groups in case of a nuclear accident. It allows only the operator (NPCIL) to sue the manufacturers and suppliers. Victims will not be able to sue anyone. In reality, no one will be considered legally liable because the recourse taken by the operator will yield only₹15 billion (US$210 million)[13].

Right to recourse: After paying amounts to the victims operator has the right to recourse to the suppliers.

Section 17(A): Right to recourse will apply in case it is already mentioned in the contract.

Section 17(B): Right to recourse in case of a nuclear damage because of the patent or latent defects in the materials or his employee. It also includes defects in sub-standard services.

Section 17(C): If damage is by a particular act of an individual with an intention to cause damage[14].

Conclusion

When the Civil Liability for Nuclear Damage Bill was introduced in the Parliament of India, on August 25th 2010, the Prime Minister said that it “is a completion of a journey to end the nuclear apartheid[15].” Basically, compliance with international norms is most essential for peaceful use of nuclear power. There is particularly no area that does not need nuclear energy directly or indirectly. Hence, the only possibility is to reduce the dependence on nuclear energy to the maximum possible level. If all industry related and experimental activities happen according to the national and international norms along with a strong vision of environment friendly business, then we still have hope on a clean and green India.


[1] https://www.iisd.org/topic/sustainable-development

[2] https://www.sciencedirect.com/science/article/pii/S2214993714000050

[3] Our Common Future Report by the United Nations Brundtland Commission (1987)

[4]Nuclear Energy in India and Foreign Investment, India Juris, http://www.indiajuris.com/nuclear.pdf.

[5]Carlton Stoiber, Alec Baer et al., Hand Book on Nuclear Law 4 (2003).

[6]Carlton Stoiber, IAEA Regional Workshop on Legal and Regulatory Aspects of Decommissioning of Research Reactors, Manila – June 2006.

[7]http://www.beyondnuclear.org/precautionaryprinciple/#:~:text=Beyond%20Nuclear%20%2D%20Precautionary%20Principle&text=The%20Precautionary%20Principle%20holds%20that,measures%20to%20prevent%20environmental%20degradation.

[8]Konoorayar, Vishnu and V. S., Jaya, Atomic Energy Law in India: An Analysis (September 26, 2011). KLRI Journal of Law and Legislation, Vol. 1, 2011. Available at SSRN: https://ssrn.com/abstract=2331762.

[9] https://blog.lawskills.in/2019/01/04/evolution-of-international-cooperation-in-the-field-of-nuclear-law/

[10] Section 2 in Atomic Energy Act, 1962

[11]Konoorayar, Vishnu and V. S., Jaya, Atomic Energy Law in India: An Analysis (September 26, 2011). KLRI Journal of Law and Legislation, Vol. 1, 2011. Available at SSRN: https://ssrn.com/abstract=2331762

[12] Bureau (31 August 2010). “RajyaSabha clears nuclear liability Bill”. New Delhi: The Hindu Business Line. Retrieved 8 December 2010.

[13]https://en.wikipedia.org/wiki/Nuclear_Liability_Act#:~:text=The%20Civil%20Liability%20for%20Nuclear%20Damage%20Act%2C%202010%20or%20Nuclear,both%20houses%20of%20Indian%20parliament.&text=The%20Act%20made%20amendments%20in,the%20Indian%20nuclear%20power%20program.

[14] ibid

[15]The word Nuclear Apartheid has been used by the Prime Minister to denote that because of the Sanctions against India, India has been segregated and victimised by other countries.

References

1. Mokshagundam, Preethi, Is Indian Nuclear Law in Conformity with the Constitutional and International Law? (June 18, 2015). Available at SSRN: https://ssrn.com/abstract=2620138 or http://dx.doi.org/10.2139/ssrn.2620138.

2. Konoorayar, Vishnu and V. S., Jaya, Atomic Energy Law in India: An Analysis (September 26, 2011). KLRI Journal of Law and Legislation, Vol. 1, 2011. Available at SSRN: https://ssrn.com/abstract=2331762.

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