Why the Nuclear Liability Rules need to be modified: Dr. A Gopalakrishnan

Background

Both the Civil Liability for Nuclear Damage Act, 2010, and the associated Civil Liability for Nuclear Damage Rules, 2011, have been gazetted. The provisions of the Act came into force on November 11, 2011, but the rules can still be contested in Parliament within 30 days of their introduction.

During the final discussions on the India-US Nuclear Deal, the prime minister wanted to assure the governments of the US, France and Russia, as well as their nuclear corporate lobbies, that India shall provide a liability-free regime for them to do nuclear commerce with India. It was for this reason that the PM agreed in 2008 itself to their demand that India shall take steps to adhere to the Convention on Supplementary Compensation, which will make it mandatory for India to enact a national nuclear liability law that will channel liability for damages from a nuclear accident completely to the operator, namely, the Nuclear Power Corporation of India Limited. This is the backdrop in which the government prepared and introduced the Civil Liability for Nuclear Damage Bill in Parliament in mid-2010.

Nuclear Liability Act

Accordingly, the Bill that the government introduced in Parliament capped the liability on the Indian operator at a very low level, and did not include any provision for channeling even part of the damage liability to the suppliers. After some of us gave extensive testimonies to the parliamentary committee examining the Bill and after the opposition had heated debates on the floor of the House, a final Act was passed with a slightly higher operator liability of Rs1,500 crore for nuclear power reactors and, more importantly, included clauses 17(b) and 46 that could enable the seeking of damage compensation from the suppliers.


To claim recourse under 17(b), the operator has to prove that the incident occurred because the supplied equipment or material had ‘patent or latent defects or the services provided were sub-standard.’ But, under Section 46, a victim of a nuclear accident could bring a liability claim against the operator in courts under Tort Law and include the supplier also as co-defendant. In this case, the plaintiffs have to merely prove that the product or service caused the harm, but do not have to prove exactly how the product or service was deficient or that the supplier was negligent. The damages to be awarded in such cases are not specifically capped under law, and these will be decided by the court, based on circumstances.

Attempt to Dilute the Act

Soon after the Nuclear Liability Act was passed, the western governments and the nuclear business lobbies made it clear that India has failed to deliver the kind of liability regime the PM promised. To partially assuage these feelings, the PM hastened to have India sign the CSC as promised to the US government in September 2008 and, in his recent meeting with President Barack Obama in Bali, confirmed that India will soon ratify the CSC as well. But, even after ratification of the CSC, India’s eventual entry into the CSC will be held up because our National Liability Law does not conform to the mandatory stipulations in the CSC Annex, since it contains Clauses 17(b) and 46.

Having failed to enact a Liability Act that could please the foreign governments and their corporate lobbies, the PM and the government are under great pressure to amend the Act. However, the government knows it is it impossible to approach the Parliament for an amendment of the Liability Act in the prevailing atmosphere of scams and mismanagement by the government and its low credibility. Under the circumstances, as a last resort, the government is attempting to dilute Parliament’s legislative intent in enacting this Act, by cleverly manipulating the rules under this Act. At first glance, the rules appear to be consistent with the Act, in that the Clauses 17(b) and 46, which were offensive to foreign governments and suppliers, have not been directly tampered with in any way. But the government’s sleight of hand can be seen if one carefully analyses the contents of Chapter V of the rules, which explains the operator’s Right of Recourse under Clause 17(a) of the Act.

Amount of Supplier’s Liability

First, Rule 24(1) states: ‘A contract referred to in clause (a) of Section 17 of the Act shall include a provision for right of recourse for not less than the extent of the operator’s liability under Section 6(2) of the Act, or the value of the contract itself, whichever is less.’ Further, it is clarified, under Explanation-2, that an operator’s claim under this rule shall in no case exceed the actual amount of compensation paid by him up to the date of filing such claim.

The above rule bounds the amount of compensation which the operator can seek from the supplier through right of recourse under Clause 17(a) of the Act. Since the maximum liability of the operator is Rs1,500 crore as per the Act, Rule 24(1) states that the right of recourse from the supplier in no case can be more than that amount, whatever be the contract value. But, if the contract value is lower than that, the right of recourse from the supplier will be capped at the contract value. In any case, certainly Rule 24(1) appears to preclude the operator from seeking any ‘consequential damages’ from the supplier, under Section 17(a) of the Act, to compensate for the larger damage the supplies could have caused to the public and the environment.

In comparing norms across various high risk industries, I find that the amount of compensation due under the right for recourse, where a contract exists, cannot exceed the operator’s own liability or the value of the contract, whichever is less. To this extent, one cannot fault Rule 24(1) as stated in Chapter V of the Rules.

This, unfortunately, is the consequence of Parliament limiting the operator’s liability for nuclear reactor accidents at Rs1,500 crore in Section 6(2) of the Liability Act, against the repeated pleas at that time to substantially increase that cap. In my view, the only option now left is to argue for higher compensation, including consequential damages, under Section 46, relying on Tort Laws.

Validity Period for Supplier’s Liability

Next, let us look at the duration for which the supplier’s liability will be valid under Clause 17(a). If we bring in the definition given in Rule 24(2)(a) for ‘product liability period’ into the body of Rule 24(2), it will read as follows: ‘The provision for right of recourse referred to in sub-rule 24(1) shall be for the duration of initial licence issued under the Atomic Energy (Radiation Protection) Rules, 2004, or ‘the period for which the supplier has undertaken liability for patent or latent defects or sub-standard service under a contract’, whichever is longer.

The duration of initial licence is a stipulation of the Atomic Energy Regulatory Board, and it is purely a time limit to periodically stop and review the overall operational & safety management of a facility by the operator. It has been set at five years for a long time now, and it has no direct connection with the supplier or his supplies. The licensing period is illogically brought into Rule 24(2), just to enable an ‘either-or’ provision, with one end-point as low as five years.

The legal intent of the Act was to provide three separate and stand-alone sub-clauses, viz 17(a), 17(b), and 17(c). In formulating the Liability Rules, government was careful not to interfere with the controversial Clause 17(b) of the Act, fearing the wrath of Parliament. As per the Act, 17(b) reads, ‘The operator… shall have the right of recourse where the nuclear incident has resulted as a consequence of an act of the supplier or his employee, which includes supply of equipment or material with patent or latent defects or sub-standard services.’ But, if we now compare this with Clause 17(a), as elaborated through Rules 24(2) and 24(2)(a), it can be seen that both Sections 17(a) and 17(b) now deal with the identical shortcoming of ‘supply of equipment or material with patent or latent defects or sub-standard services.’ Except that, under 17(a) and the associated contract between the operator and supplier, the quantum and time validity of the supplier’s liability to the operator under right of recourse is well-defined and bounded, whereas for the same default of the supplier, Section 17(b) of the Act allows recourse without specifying limits on time period or amount!

If an accident occurs within the applicable time limit as per the contract mentioned in Section 17(a), the operator can argue for recourse under Section 17(a), for the quantum of compensation as per that contract.

But, if an accident occurs, as a result of the supply, beyond the period of validity mutually agreed in the contract, Section 17(a) will not help in seeking right of recourse, because it will be time-barred through the limitation in the contract. Unfortunately, then Section 17(b) can also not be resorted to, because the supplier will argue that, for the very same deficiency or default, he has a contract with the operator whose time validity has already expired. In effect, one finds that through a clever Rule manipulation under 17(a), the government has succeeded in linking Clauses 17(a) and 17(b) of the Act, in contravention of the legal intent of the Parliament that they should be independent of each other, and applicable separately. The serious consequence of this linkage is that the provisions for recourse from the supplier given in the contract under Section 17(a) and its rules will prevail at all times, thus nullifying the provisions of Clause 17(b).

Correct the Liability Rules

It is evident from the above analysis that the modification needed in the Rules presently before the Parliament is to delink the artificial coupling that the government has introduced between Clauses 17(a) and 17(b) of the Act through these Rules. This can be achieved by retaining Clause 17(b) as it is, and changing Rules 24(2) and 24(2)(a) to remove any mention of ‘liability for patent or latent defects or sub-standard services’ from these Rules, since such defects and sub-standard services are already independently covered under Clause 17(b).

In normal product or service liability contracts, the supplier guarantees a safe and assured life for his product or service delivered to the operator, a period during which the supplier confirms it will function as per the mutually agreed performance specifications. It shall be the onus of the operator to ensure that the guarantee period he is agreeing with the supplier is adequately high for such supplies and it should be consistent with the product lifetime and/or failure probability used in the Probabilistic Risk Analysis for the system which he has submitted to the safety regulatory agency and got approved. Clause 17(a) then needs to rely on this product guarantee period as the time validity for the operator’s right of recourse, instead of surreptitiously bringing in the licensing period which has no relevance in this context.

To translate the above argumentsinto a Rule change, Parliament may kindly consider replacing the current Rule 24(2) and its Explanation-I (a) in Chapter V of the Rules with the following revised wording of Rule 24(2), followed by a revised Explanation-I consisting of parts (a) through (d), as given below. The current version of Rule 24(2)(b) and Explanation 2 may please be retained.

24(2): The provision for right of recourse referred to in sub-rule (1) shall be for the duration of ‘the product guarantee period.’ This rule is to be read and implemented in conjunction with parts (a) through (d) of Explanation -I, given below.

Explanation- I :
a) For the purpose of this rule, the expression ‘product guarantee period’ means the safe and assured life for the product or service delivered to the operator during which period the supplier confirms it will function as per the mutually agreed performance specifications, provided the operator diligently follows all the stipulations of the supplier regarding erection, commissioning, and operation & maintenance, including the regular upkeep, inspection, and repairs during the guarantee period as mutually agreed and detailed in the contract at the outset.

b) In case of a confirmed failure of the product or the service provided, within such a product guarantee period, the onus on the operator will be merely to establish that he has diligently followed all the stipulations spelt out by the supplier as part of the contract.

c) Such guarantee period shall be adequately high in the context of the prevailing worldwide nuclear industry norms for such products and services, and consistent with the life expectancy and failure rate for that product or service which the operator has used in the Probabilistic Risk Analysis for the system and approved by the nuclear safety regulatory agency.

d) If the failure occurs during the product guarantee period due to no fault of the operator and if the operator has evidence to establish that he has faithfully followed all stipulations as per contract, the supplier shall be strictly liable to pay the mutually agreed compensation as per Clause 17(a) of the Act, read with Rule 24(1). In such a case, there shall be no onus on the operator to prove what specific deficiency or negligence on the part of the supplier has caused the failure or damage of the supplied product or service.

-Dr. A Gopalakrishnan

The author is a former chairman of the Atomic Energy Regulatory Board of the Indian government

Courtesy: Daily News Analysis, 5-12-11

The Civil Liability for Nuclear Damage Act (2010) comes into force....

 The Civil Liability for Nuclear Damage Act (2010) comes into force with the notification of the attendant rules for its implementation.

THE rules for implementing the Civil Liability for Nuclear Damage Act (2010), which were being awaited for long, particularly by foreign nuclear goods suppliers, were notified on November 11 and made public on November 16. In effect, therefore, the Act came into force as of November 11. The concern of the suppliers related chiefly to Section 17(b) of the Act, which provides for ‘right of recourse' to the nuclear power plant (NPP) operator to move against any supplier of “equipment or material with patent or latent defects or sub-standard devices” if that was determined to be the cause for a nuclear incident and render the supplier liable for nuclear damage (see box).

 Key provisions 

 

I. The requirement under the Convention on Supplementary Compensation (CSC) in respect of the operator's right of recourse in a national law:

Article 10 of the Annex:

National law may provide that the operator shall have a right of recourse only:

(a) if this is expressly provided for by a contract in writing;

(b) if the nuclear incident results from an act of omission done with intent to cause damage, against the individual who has acted or omitted to act with such intent.

II. Provisions in the Civil Liability for Nuclear Damage Act (2010) for the operator's right of recourse:

Section 17: The operator of the nuclear installation, after paying for the compensation for nuclear damage…, shall have a right of recourse where:

(a) such right is expressly provided for in a contract in writing; (b) the nuclear incident has resulted as a consequence of an act of supplier or his employee, which includes supply of equipment or material with patent or latent defects or substandard services;

(c) the nuclear incident has resulted from the act of commission or omission of an individual done with the intent to cause nuclear damage.

III. Provision in the Civil Liability for Nuclear Damage Rules (2011) for the operator's right of recourse:

Rule 24:

(1) A contract referred to in clause (a) of Section 17 of the Act shall include a provision for right of recourse for not less than the extent of the operator's liability under subsection (2) of Section 6 of the Act or the value of the contract itself, whichever is less.

(2) The provision for right of recourse referred to in sub-rule (1) shall be for the duration of the initial licence issued under the Atomic Energy (Radiation Protection) Rules (2004) or the product liability period, whichever is longer.

The right of recourse can be exercised by the operator after paying the compensation for nuclear damage in accordance with Section 6 of the Act so that the affected public is compensated for the damage, including loss of life or property, immediately after the incident. The provision 17(b), however, flies in the face of the standard international practice for nuclear liability which indemnifies the supplier entirely and makes the operator strictly and absolutely liable for the incident or accident irrespective of the cause. The international liability regime that is currently being followed by most of the 30 NPP operating countries, either through international conventions or through domestic laws, do provide for ‘right of recourse' which, however, is much more limited in scope than what the Indian Act seeks to provide.

 A VIEW OF the Tarapur Atomic Power Station. It is not clear as yet if suppliers will accept the apparent relief from indefinite liability that the rules have now given them and begin to do business with NPCIL.

The international regime promoted by the International Atomic Energy Agency (IAEA), called the Convention on Supplementary Compensation (CSC) (which is yet to come into force and which India has signed and is planning to ratify soon), requires that the domestic nuclear liability law of a country that is not a party to the Paris Convention of 1960 or the Vienna Convention of 1977 should be consistent with certain provisions laid down in the Annex of the CSC, which include operator's ‘right of recourse' (Article 10). But this provides for ‘right of recourse' (see I in box) and channelling liability to the supplier only in cases when it is “expressly provided for in the [operator-supplier commercial] contract” or “if the nuclear incident results from an act or omission done with the intent to cause damage”.

However, the Indian Act goes beyond these by providing for Section 17(b), mentioned above, in addition to Sections 17(a & c), which are in accordance with Article 10 of the CSC Annex (see II in box). Thus, the Indian Act would seem to be not consistent with the international liability regime. However, the CSC (Article XVIII) only requires that while submitting the instruments of ratification, a signatory country has only to declare that its domestic law is consistent with the provisions of the CSC Annex. Only when some party to the convention raises the issue of the Indian Act being inconsistent with the international liability regimes will the IAEA take cognisance of that aspect and set forth measures to resolve it.

Potential supplier countries to India – the United States, France and Russia – have voiced their dissent to this contentious ‘right of recourse' provision in the Indian Act at different times. One of the issues has been the period of applicability of the controversial Section 17(b). Operators have contended that a supplier of equipment or component cannot be held liable under the conditions of 17(b) throughout the lifetime of the reactor during which period many modifications to the NPP – both hardware and software – could be made. And that is why potential suppliers have been keenly awaiting the announcement of rules to operationalise the Act.

Besides 17(b), the other provision in the Act that the suppliers are wary of is Section 46, which allows for tort cases based on other domestic laws to be moved against the operator in addition to the damages that the operator has to bear under the Liability Act. In principle, the proceedings of such a case can bring the supplier of equipment too under its ambit if the operator contends that defective equipment was the cause of the nuclear incident.

Obviously, rules framed to implement an Act have to be in conformity with the provisions of the Act. One thing the nuclear liability rules cannot, therefore, do is to resolve the Act's contradiction with the CSC Annex. So the issue of India's admission to the CSC will depend on how the IAEA will address the issue if the matter is brought up before it by any party. But, notwithstanding the commitment given by Prime Minister Manmohan Singh to President Barack Obama in November 2010, India can choose not to ratify the CSC and yet seek to do nuclear commerce globally. This should be possible given that nuclear supplier countries have been doing business with countries that have not even signed the CSC or are parties to other international conventions. Indeed, only the U.S. has insisted on India ratifying the CSC ( Frontline, December 3, 2010), while France and Russia have only required in their bilateral agreements with India that the Indian law should conform to international standards. The only issue would be if aspects of liability governed by the Indian domestic law are acceptable to them as meeting international norms.

The Act does not specify any extinction period for the ‘right of recourse' provision under its Section 17 (see II in box). It is open-ended and would seem to be applicable for the whole lifetime of the NPP or the equipment in question, and for an unspecified extent of liability. In fact, this was the perception of people who argued for and succeeded in the inclusion of 17(b) in the Act.

But the rules that have now been announced change that. They cap both the time period for which the operator can exercise the right of recourse and the extent of financial liability of the supplier (see III in box). Firstly, the rules require that the operator shall include such a right of recourse provision in the commercial contract (emphasis added). Since, in case of a nuclear incident, the extent of the operator's liability is, vide Section 6(2) of the Act, Rs.1,500 crore, Rule 24(1) requires that the liability channelled to the supplier cannot be less than the lesser of the operator's liability (Rs.1,500 crore) and the value of the contract. That is, if the value of the contract is more than Rs.1,500 crore, the extent of the supplier's liability will be at least Rs.1,500 crore. But if the value of the contract is less than Rs.1,500 crore, the supplier's exposure will only be equal to the value of the contract.

As for the cap on the time period for right of course, it would be either the initial licence period issued by the Atomic Energy Regulatory Board (AERB) under the Atomic Energy (Radiation Protection) Rules (2004) or the product liability period, whichever is longer. The italicised phrases, however, need explanation. Rule 9 of the Radiation Protection Rules (2004) specifies the period of validity of the licence issued for a nuclear reactor thus: “Every licence issued shall, unless otherwise specified, be valid for a period of five years from the date of issue of such licence” (emphasis added).

From the above, it is clear that, in principle, the licence period can be anything less than or more than five years. But, if unspecified, it will be five years by default. Indeed, it has been a codified practice of the AERB that the initial ‘operating' licence is for a five-year period. At the end of five years, a review of all aspects of the power plant operation is done and licence is renewed for another five-year period. At the end of 10 years, an elaborate and comprehensive review of the working of the plant is carried out before a renewal of licence for another five years.

But starting the operation of a nuclear reactor does not happen with the press of a button or the single throw of a switch. The commissioning of an NPP is a long-drawn process (which is completed over several months). It goes through the following distinct phases, each of them involving elaborate tests and simulations under the supervision of AERB and other experts. The operator, Nuclear Power Corporation of India Ltd (NPCIL), is given due authorisation or consent, which is equivalent to a licence though not termed so, for each one of these phases. These are for much shorter durations, varying from a month to six months or even more.

After the full loading of the fuel, authorisation for starting Phase A operations is given. This involves initiation of fission and gradual ‘approach to criticality'. Once criticality is achieved, the AERB gives its authorisation for Phase B, which involves operation of the NPP in low power over a length of time when various nuclear physics checks and safety checks are performed in the presence of experts. After satisfactory low power operation, yet another authorisation (Phase C) is given for gradually increasing the reactor's output to full power. Its performance, in particular its stability, is observed for 100 full power reactor days. Only after this the actual licence for commercial operation, including grid connectivity, is given, and this constitutes the initial operating licence with a validity of five years. Build-up of radioactivity begins once fission is initiated (Phase A), and there is the likelihood of a nuclear incident involving radioactivity during all the three phases of testing. While the operator's liability is clear in all of them, how will the operator's right to recourse clause be interpreted as the different stages of authorisations are for different and shorter durations?

From the perspective of liability and in the wake of the new rules for the operator's right of recourse, the AERB, according to reliable Department of Atomic Energy (DAE) sources, is now seized of this ambiguity in the licensing process and will evolve a new definition for initial operating licence that will include the initial start-up process as well. Any future operating licence that will be issued to NPCIL will be in accordance with the amended operating licence definition. Given that the progress to commissioning can even take up to six months, effectively, the period for the operator's right of recourse should technically be five years plus that initial build-up period.

The other phrase that needs similar elaboration is ‘product liability', a term akin to ‘warranty period' but something more than that. The Liability Rules define ‘product liability period' as the “period for which the supplier has undertaken liability for patent or latent defects or sub-standard services under a contract”. Thus this part of the rule actually has relevance to the controversial Section 17(b) of the Act and the product liability period refers to that of the product implicated, or sought to be implicated, in an incident though the announced rules do not explicitly include any clause for implementing 17(b) itself. The document on ‘General Conditions of Contract (GCC) for Supply of Indigenous Stores' of NPCIL specifies the ‘product liability period'. It must be pointed out that this document is specific only to indigenous suppliers because NPCIL has hitherto not dealt directly with foreign suppliers of products and equipment.

‘Patent defect' refers to a defect that is manifest or recognisable on inspection of the product, and there is a corresponding ‘patent defect liability period'. Under the NPCIL contract conditions, this is 12 months from the date of acceptance of the product or 18 months from the date of its receipt at the site, whichever is earlier. ‘Latent defect', on the other hand, means a defect within the material or arising out of design deficiency, which does not manifest itself and/or was not reasonably discoverable during the ‘patent defect liability period'. The supplier's ‘latent defect liability period', according to the GCC, is “limited to a period of five years from the end of ‘patent defect liability period' of the respective plant and equipment including spares”. In effect, therefore, the ‘product liability period', under NPCIL's terms, will be the sum of these two periods and is, therefore, six and a half years from the date of arrival of the product at the site or six years from the date of its acceptance.

From the perspective of nuclear liability during a nuclear incident, this would seem to be irrelevant as regards most products. This is because the clock starts ticking from the time they arrive on the site. Given that the NPP construction period itself can take up to five years or more, the product liability period for most products will expire before the initial operating licence period begins. That is, if a particular product is identified to be the single causative agent for a nuclear incident – which would rarely be the case because a nuclear incident is usually is a combination of several products and operating conditions – the liability period for that product (and hence for the supplier) would in nearly all cases have expired by then unless the incident occurs during the testing phases unless, of course, a product or component is changed before the expiry of the initial licence period. In such a case, the product liability period can extend beyond the initial licence period and, therefore, would have some relevance if it is involved in any incident.

One of the curious things in the ongoing debates on channelling of nuclear liability to suppliers, which should affect Indian suppliers as well, was the inexplicable silence of Indian suppliers on the issue as compared with their foreign counterparts. But Section 6.7 of the GCC, which provides for ‘Indemnity against Loss/Damage', gives an explanation for this. Subsection 6.7.7 states: “The Purchaser [NPCIL] shall indemnify and hold harmless the Contractor [supplier] in respect of Third Party life and Property damage claims arising out of nuclear event at Purchaser's Site.” This implies that in contracts with domestic suppliers, NPCIL has hitherto provided indemnity to them in case of an event at an NPP. That is, the GCC followed by NPCIL all along has been consistent with strict and absolute liability of the operator.

In fact, the GCC provides for this indemnity to the supplier even in cases of tort proceedings against the operator under other laws unless the contract explicitly provides for it. Section 9.1(a) of the GCC says: “Except in cases of criminal negligence or wilful misconduct, the Contractor shall not be liable to the Purchaser, whether in contract, tort, or otherwise, for any indirect or consequential loss or damage, loss of use, loss of production, or loss of profits or interest costs, provided that this exclusion shall not apply to any obligation of the Contractor to pay liquidated damages and/or any other penalties/recovery etc. specifically provided for in the Contract, to the Purchaser.” This again would seem to be consistent with the prevalent international norms for right of recourse. In the wake of the Liability Act and the attendant rules, it remains to be seen whether NPCIL chooses to amend these provisions under the GCC for domestic suppliers.

But, more pertinently, what will be the nature of the GCC that NPCIL would draw up for future contracts that it is likely to enter into directly with foreign suppliers? Will such a differential dispensation in commercial contracts with domestic and foreign suppliers be acceptable to the latter?

In queries to the different potential nuclear suppliers to India, such as Areva, GE and Westinghouse, all of them have said that they are still studying the rules and do not wish to make any comments. While the opposition parties have expressed their strong opposition to the rules by saying that the government has succumbed to suppliers' pressures, it is not clear as yet if these suppliers will accept the apparent relief from indefinite liability that the rules have now given them and begin to do business with NPCIL. If they do, the obvious impact of the rules is that there will be loading of cost of insuring for an amount equal to the extent of liability that the supplier is now exposed to for the initial five-year period, thus increasing project costs.

As for Parliament's assent to the rules, according to Section 48 of the Act, the rules made will remain before both Houses of Parliament, while in session, for a total period of 30 days which may be comprised in one session or in two or more successive sessions. For any amendment recommended by Parliament to become effective, both Houses will have to agree to the change(s). The winter session for the year will last for a month from November 22 to December 21. With the opposition having already publicly voiced their dissent to the rules, the issue is bound to occupy a substantial fraction of the session period with acrimonious debates.

-R. Ramachandran

Courtesy: Frontline, Dec 03-16, 2011

Nuclear Energy and Weapons: Uncontrollable in Time and Space

The earthquake and tsunami in Japan devastated a whole region. Radioactive emissions from the damaged nuclear reactors are very serious, and have already contaminated food and water, prompting a ban on food exports from four prefectures and a government warning not to give Tokyo tap water to babies. The crisis could impact human health and the environment on an even wider scale -- across Japan and around the globe.

Whether or not the brave technicians in Fukushima are successful in containing the bulk of the radiation in the six reactors, the message is clear: natural disasters and accidents will happen. If it can go wrong sooner or later it will go wrong, and Murphy's law and nuclear energy do not mix. 

In Japan, the fear of radiation spreading is connected to the memory of the nuclear bombs dropped on Hiroshima and Nagasaki over 65 years ago. Over 100,000 people died from radiation exposure -- nearly as many as from the blast. The genetic effects continue down through the generations.

 

Japan's nuclear crisis has brought back to public consciousness the basic truth that the effects of nuclear disasters -- whether from nuclear energy or nuclear weapons -- are uncontrollable in time and space. 

Current events at Fukushima remind us of the negligence of nuclear power companies in building nuclear power plants on earthquake fault lines or vulnerable coastlines. But they should also remind us of the even greater negligence of the nuclear weapon states in maintaining their arsenals of 20,000 nuclear weapons -- most with yields over 100 times greater than the Hiroshima and Nagasaki bombs, and many on hair trigger alert, ready to launch within minutes. Any accidental, unauthorized, inadvertent or intentional use today (or tomorrow) would have a catastrophic, widespread, unprecedented and unimaginable impact on humanity and the environment. 

A recent statement released by international law experts from around the world, including former judges from the International Court of Justice, affirms that maintaining nuclear weapons and a readiness to use them is not only negligent, but given the dire consequences of any use, also against the law. The Vancouver Declaration on "Law's Imperative for the Urgent Achievement of a Nuclear-Weapon-Free World," notes that the use of nuclear weapons would be "contrary to the fundamental rules of international humanitarian law (laws governing use of force in wartime) forbidding the infliction of indiscriminate harm and unnecessary suffering."

In other words, during war one can attack military targets and personnel, but not civilians. One can inflict harm on military personnel, but not such harm that would last long after the conflict is over. In addition, it is illegal even in wartime to inflict long-term and severe damage on the environment. Nuclear weapons, with their uncontrollable blast, heat and radiation effects, could not be used without violating these laws. And if such an act is illegal, the threat to commit such an act is also illegal. 

Thus, in 1996 the International Court of Justice (a. k. a. the World Court) determined that the threat or use of nuclear weapons would be generally illegal, and that there is an unconditional obligation to achieve the complete prohibition and elimination of nuclear weapons through good-faith negotiations. 

Since then, failure of the nuclear weapon states to comply has had predictably disastrous results for global proliferation and nuclear danger, convincing India, Pakistan and North Korea that if they can't cajole the nuclear weapon states to give up nuclear weapons, then they might as well join their nuclear club. Others are bound to follow suit.

Until recently, states that wanted to hang onto their nuclear arsenals and their policies to use them argued that such policies were legal by misrepresenting a clause in the Court's opinion. That clause stated that the ICJ could not reach a conclusion on the legality of threat or use in the extreme circumstance of self-defense when the very survival of a state is at stake. So by stating that they would only use nuclear weapons in "extreme circumstances," the nuclear weapon states avoided applying the general ruling of illegality to their nuclear weapons policies. 

But they can no longer avoid this. In May 2010, the parties to the nuclear Non-Proliferation Treaty (NPT), which includes the major nuclear weapon states, affirmed that any use of nuclear weapons would cause catastrophic humanitarian consequences, and that states must comply with international humanitarian law "at all times." They also agreed that all states must make special efforts to build the framework for a nuclear weapons-free world, citing the United Nations Secretary-General's proposal for negotiations on a global nuclear abolition treaty.

Now governments have to choose: hang onto their nuclear arsenals, or uphold the rule of law to which they have agreed. They can't do both. We all know which will make us safer. Nuclear possession is a recipe for proliferation and corrosive to international humanitarian law, which, as the Vancouver Declaration says, "is essential to limiting the effects of armed conflicts, large and small, around the world."

The nuclear crisis in Japan has debunked the claims of authorities that their nuclear power stations, built with inferior containment on fault-lines, are safe and fully under control. Before something goes horribly wrong on the weapons front, we must also debunk the claims of the nuclear weapon states that nuclear weapons are safe as long as they are in the 'right hands.' 

States including the US take the position that we should just trust them to take small steps towards nuclear disarmament sometime in an indefinite future. That's like trusting the nuclear power industry to police itself and voluntarily phase itself out in deference to public safety. It simply won't happen without a global prohibition enforced by the rest of the world, like the one outlined in the draft treaty circulated by the UN Secretary-General.

In 1996, the President of the International Court of Justice called nuclear weapons an "absolute evil." We have already applied international humanitarian law to other inhumane and indiscriminate (read "evil") weapons such as landmines and cluster munitions in order to achieve global treaties for banning them. Now it's time for absolute prohibition and elimination of nuclear weapons.

http://www.huffingtonpost.com/alyn-ware/nuclear-energy-and-weapon_b_839634.html