M P Ram Mohan*
Sri Lanka, as it is reported, had raised and subsequently retracted to discuss with International Atomic Energy Agency (IAEA) its transboundary concern emanating from Kudankulam Nuclear Power Plant (KNPP). From the initial stages of construction of KNPP itself Sri Lanka had apprehensions of safety, since the country is only 250 km away from the Tamil Nadu coast. India acknowledging the concern of neighbour is understood to have explained technically the impossibility of any major disaster and assured that there was no reason to worry.
Without dwelling into larger political motive or reasons, the present India – Sri Lanka nuclear issue raises an important point and gives an opportunity at the level of the South Asian Association for Regional Cooperation (SAARC) to initiate a dialogue on the concerns and legal consequences arising out of nuclear energy expansion programmes. Many countries in SAARC are expanding nuclear energy capacity or have plans to start nuclear energy in a major way. Most of the proposed NPPs are close to sea bordering other countries as well.
As a densely populated region, South Asia will face serious life and livelihood, and environmental impacts in case of a major disaster, industrial or natural. A study of the SAARC initiates on disaster management suggests that the work and emphasis has all been on natural disasters, leaving the industrial disasters out of the purview of discussion. SAARC seems to be the ideal platform for the South Asian countries to establish a ‘Nuclear Risk Community’. Nuclear Risk Community is basically to test SAARC’s capability to address transboundary liability issues effectively as a community with respect to nuclear accidents.
Nuclear Energy Plans in South Asia
In South Asia, India has an ambitious nuclear energy plans. From approximately 4800 MWe currently, Department of Atomic Energy (DAE) plans to add 30,000MWe by 2020 and 60,000MWe by 2032. Pakistan has announced that its nuclear energy target is to achieve an installed capacity of 8800 MW by 2030 from 462 MW as of today. In 2001 Bangladesh adopted a National Nuclear Power Action Plan. At present, 2 units of 1000 MW each have been proposed in Ruppur in Pabna District around 50 kms from Indian boarder. Government of Sri Lanka has given its clearance to set up a nuclear power plant of 1,000 MW, and has submitted a request to the International Atomic Energy Agency for a pre-feasibility study. Nepal does not have any short term nuclear energy plans. However, the National Nuclear Policy adopted in 2008, recognizes the great importance of application of nuclear energy/technology in the development process of Nepal. Afghanistan, Bhutan and Maldives currently do not have any plans to develop nuclear energy programs.
No significant discussion on nuclear energy and its consequences has taken place in the SAARC summits and ministerial meetings. An insignificant reference is made in the consensus recommendation of the conference on “Interdependence between Energy Policy and Other Sectoral Policies” organized by SAARC Energy Centre on November 24-25, 2008. The conference concludes by stating among other things, “Considering nuclear as another source of clean power, regional cooperation can be considered to explore the possibilities of building a regional nuclear power plant”.
It is highly unlikely, keeping in view the relationships, international legal requirements and political considerations, that there will be any substantive co-operation in setting up regional cooperative nuclear power plants. However, in case of nuclear fallout it is very likely that South Asia as a community will bear the brunt of the same. Keeping in view of this, priority for the SAARC countries is to build a firm foundation for a responsible nuclear future.
Legal and Political Action
Internationally, Vienna Convention on Civil Liability for Nuclear Damage, an IAEA sponsored liability and compensation regime lays down basic principles of nuclear liability law and has been the supporting document that many countries relied on while embarking on a nuclear power program. Vienna Convention takes on the basic principles laid down by the OECD supported Paris Convention on Third Party Liability. These are; 1) No-fault liability – absolute liability of the operator, 2) Legal channeling of liability to the operator of nuclear power plant, 3) Exclusive jurisdiction to the country of accident, 4) Liability limited in amount and time, and, 5) Operator must secure adequate insurance. In 1997, for further strengthening the liability regime, IAEA facilitated the adoption of Convention on Supplementary Compensation (CSC). CSC is structured as a standalone instrument and obligates signatories to have a national law based on the Paris Convention or the Vienna Convention or the Annex to the CSC. The important requirement under CSC is that the national laws must be in tune with the CSC provisions relating to jurisdiction, compensation and the definition of nuclear damage.
The explanation advanced for the recent revival of interest in nuclear energy world-over has been the significant progresses made in nuclear technology and the strength of international legal and institutional systems to respond to nuclear accidents in a better and timely manner.
None of the SAARC countries are party to the Vienna or any other international liability convention that are in force, thereby exposing the region to a probable “Chernobyl like” situation. A country could easily reject liability and refuse payment of any compensation. India became party to CSC. But, CSC is not yet in force and may take years to become operational. In terms of domestic legislation, at present other than India, no other SAARC country has a domestic nuclear liability law.
Nevertheless, on a positive note, all SAARC countries are parties to The Convention on Assistance in Case of a Nuclear Accident or Radiological Emergency and the Convention on Early Notification of a Nuclear Accident (Emergency Conventions) albeit some reservations. Emergency Conventions are the prime legal instruments that establish an international framework to facilitate the exchange of information and the prompt provision of assistance in the event of a nuclear accident or radiological emergency. They place specific obligations on the Parties and the IAEA, with the aim of minimizing consequences for health, property and the environment. However, these conventions do not dwell into any legal obligations for parties to accept its responsibility for liability and compensation.
The way forward
Energy from conventional sources will continue as engines of growth and in that nuclear has its place in the region. However, such a roadmap needs a resolute and honest deliberation within SAARC where interests of people and of environment, and economic progress must find their place. Taking a cue from Sri Lanka, many countries in SAARC both nuclear energy generating and non-generating may start voicing transboundary nuclear concerns against each other. Regional consensus to formulate a ‘SAARC Nuclear Risk Community’ or to aim at a higher level a ‘Regional Framework Convention’ on nuclear energy liability is not only desirable but is a necessity on account of nuclear energy expansion plans. Existence of such a forum based on the established principles of nuclear law would enable an efficient and speedy remedy within South Asia. India should take a leadership role in this exercise.
*M P Ram Mohan is a Fellow at The Energy and Resources Institute (TERI) and is with Indian Institute of Technology, Kharagpur as a Research Scholar. His research at IIT focuses on possibility of a SAARC regional framework convention on nuclear liability. He is also the Chairman, Nuclear Law Association.