Sri Lanka-India Nuclear Deal – What Does It Mean For Sri Lanka?

by Ruwantissa Abeyratne

( March 4, 2015, Montreal, Sri Lanka Guardian) The Bilateral Agreement on Civil and Nuclear Cooperation, as described by Prime Minister Modi which President Sirisena called a Nuclear Safety Agreement which the two leaders signed recently during President Sirisena’s State visit to India, has seemingly different connotations as the descriptions of the two leaders reflect. From the two descriptions, one could well surmise that to India, the agreement may connote cooperation and supply of nuclear power to Sri Lanka, and to Sri Lanka it could mean inter alia a certain degree of protection from a nuclear fallout from an Indian nuclear reactor located in the southernmost tip of India just across the Palk Straight, or both. Bloomberg Business reports that discussions on nuclear cooperation between the two countries have been ongoing from 2012 and that: “India is one of the few countries with expertise in reactors suited to smaller power grids, and state-run Nuclear Power Corp. has previously expressed interest in exporting them. An international embargo placed on India over its atomic bomb tests in 1974 and 1998 was lifted seven years ago, allowing the nation to begin selling reactors overseas”.

Some experts believe that the nuclear “safety” deal is India’s way of assuring its smaller neighbour of assistance in the event of any possible radiation disaster emanating from the abovementioned Kudankulam plant in neighboring Tamil Nadu and is not necessarily based on any covert interest in setting-up nuclear power stations in the island nation to augment clean energy production.

Yet others, as reported in International Business Times believe, particularly in the context of an alleged statement by President Sirisena that he intends to rebalance Sri Lanka’s relations with China, that “the civil nuclear deal between the two neighbours is being seen as an attempt by India to ward off the growing Chinese influence in the region” in the context of the so called “string of pearls” strategy of China.

India has five decades of experience in atomic energy and has built 5.8 gigawatts of capacity and has plans to increase that to 62 gigawatts by 2032. India’s active involvement in the nuclear energy field is further brought to bear by the recent agreement between Prime Minister Modi and President Obama which signalled a breakthrough in a deadlock between the India and the United States on nuclear cooperation that had existed since 2008.

Whatever the theories are regarding the Indo-Lanka nuclear deal, some claim (through protests) that the scary part is that Kudankulam is in close proximity to Sri Lanka (it is said that the plant is 250 kilometres from Mannar in Sri Lanka, which known to be strong in the pearl fishing industry) and that a nuclear fallout from the plant would have a cataclysmic effect on neighbouring communities and marine life. However, it is worthy of note that N.S.Venkataraman, writing in this newspaper on 18 September 2012 said: ” … the protest against nuclear power plant in Koodankulam (sic) is very unusual and peculiar. The protestors are innocent fisher men, most of whom do not have much of education and cannot understand the intricacies of nuclear technology and safety issues. What is even more unusual is that the religious bodies such as church and priests belonging to church have openly associated themselves with the agitation by the fisher men, though it is not known that the church have opposed nuclear power plants in any other part of the world. It is not known that church have protested against nuclear power plants in France, where around 75% of power is nuclear power. In the same article the author goes on to say :” Number of nuclear plants have been operating around the world for many years now … While some accidents have taken place in the nuclear plants in the past across the world, certainly they are not more than the number of accidents that have taken place in other type of power plants or chemical plants or aircraft accidents etc”.

In this context one might note that the nuclear meltdown of Japan’s Fukushima Daiichipower plant which occurred on 11 March 2011 had cataclysmic effects both on neighbouring communities and fisheries. Scientific American has reported: ” Japanese authorities have carved the area around Fukushima into two zones, recommending that individuals within 20 kilometers of the plant evacuate and that anyone living 20 to 30 kilometers from the plant take shelter and stay put. Nevertheless, after initially supporting that action the U.S. Nuclear Regulatory Commission (NRC) took the dramatic step March 16 of recommending that Americans within 80 kilometers of Fukushima Daiichi evacuate the area”.

It may well be that no one has studied the real effects of a possible nuclear disaster at Kudankulam on Sri Lanka. We are then left with the intelligent question “what if”? As a person encumbered with a legal education, the writer can only inquire into the legal situation and in particular, liabilities that might accrue to India. It has been reported that according to the nuclear deal, India will assist Sri Lanka in developing its civil nuclear energy infrastructure, including sharing of resources, training of personnel and extending expertise. It will also facilitate cooperation in radioactive waste management and nuclear and radiological disaster mitigation and environmental protection.

India has its Civil Liability for Nuclear Damage Act of 2010 which provides that the Act applies to the whole of India in terms of nuclear damage suffered and extends to the maritime areas beyond the territorial waters of India. Whoever suffers nuclear damage shall be entitled to claim compensation in accordance with the provisions of the Act. A claim may be submitted by a person who has sustained injury; or the owner of the property to which damage has been caused; or the legal representatives of the deceased; or any agent duly authorised by such person or owner or legal representatives.

Article 6 of the Act provides that the maximum amount of liability in respect of each nuclear incident shall be the rupee equivalent of three hundred million Special Drawing Rights or such higher amount as the Central Government may specify by notification: provided that the Central Government may take additional measures, where necessary, if the compensation to be awarded under the Act exceeds the amount specified under Article 6. The following provision in the Act (Article 7) provides that the Central Government (of India) shall be liable for nuclear damage in respect of a nuclear incident,- where the liability exceeds the amount of liability of an operator specified under Article 6, to the extent such liability exceeds liability of the operator occurring in a nuclear installation owned by it; and occurring on account of causes specified in the Act, provided that the Central Government may, by notification, assume full liability for a nuclear installation not operated by it if it is of the opinion that it is necessary in public interest.

At international law it is recognized that the potential cross boundary consequences of a nuclear accident require an international nuclear liability regime, and therefore national laws are supplemented by a number of international conventions. Liability is limited by both international conventions and by national legislation, so that beyond the limit (normally covered by insurance) the state can accept responsibility as insurer of last resort, as in all other aspects of industrial society. Evidently, India has acted accordingly, in assuming the role of the insurer of last resort with the 2010 Act.

There are quite a few multilateral international treaties which have been adopted to provide compensation for damage arising from nuclear incidents. These conventions, which constitute an international nuclear liability regime, include: the Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960 (Paris Convention); the Convention Supplementary to the Paris Convention of 1963 (Brussels Supplementary Convention, BSC); and the Convention on Civil Liability for Nuclear Damage of 1963 (Vienna Convention). All these conventions have been amended by protocols. They will not be discussed in detail here.

India has ratified some nuclear conventions including Amendment to the Convention on the Physical Protection of Nuclear Material of 2002; Convention on Early Notification of a Nuclear Accident 1988; Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency. Convention on Nuclear Safety, 2005. It has signed (but not ratified) The Convention on Supplementary Compensation for Nuclear Damage of 2010. According to information available to the author, Sri Lanka has neither signed nor ratified any of these treaties. In the case of a nuclear fallout in India that would result in damage to Sri Lanka or its people the Civil Liability for Nuclear Damage Act of 2010 may be invoked. In instances where the damage caused does not come within the purview of the Act, principles of international customary law would be applicable which take into consideration the purpose for which a State-run nuclear installation is used. In the case of a nuclear power plant which produces energy for general supply, it is doubtful whether a State as operator of a nuclear installation would enjoy immunity in the courts of other countries when such an installation causes nuclear damage.

There are many versions as to why this deal was signed by both countries. Reuters goes on to say: “India sealed a nuclear energy agreement with Sri Lanka on Monday, its first breakthrough with the new government of the tiny Indian Ocean island where China has been building ports and highways in a diplomatic push in recent years. Under the deal, India will help Sri Lanka build its nuclear energy infrastructure, including training of personnel, the Indian foreign ministry said. Later, India could also sell light small-scale nuclear reactors to Sri Lanka which wants to establish 600 MW of nuclear capacity by 2030, a Sri Lankan official and an Indian analyst said”.

At a recent interview given to NDTV in New Delhi, Sri Lankan Foreign Minister Mangala Samaraweera said that the agreement called for the appointment of a joint committee that would work towards establishing peaceful uses of nuclear power by and between the two countries and that it was an interesting and timely agreement. To all purposes, the agreement seems to be a proactive one that furthers the foreign policy of Sri Lanka which the Minister said was “not based on ideology but aims at responding to the needs of the people”.

That seems good enough.