Tag Archives: Vienna Convention

Kulbhushan Jadhav and the ICJ Verdict

ISSSP Reflections No. 52, May 25, 2017

Author: Anna Catherine

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The International Court of Justice (hereinafter ICJ) in its order indicated provisional measures in the Jadhav case (India v. Pak) on May 18, 2017, which the Indian media celebrated as a diplomatic victory. Notwithstanding Indian show of legal expertise in Hague, the military court of Pakistan could go ahead and carry out the execution of Jhadav in defiance of the ICJ’s order. This leads to two pertinent questions; (i) Will Pakistan budge? (ii) Is the execution of Mr. Jhadav inevitable?

This case is of paramount significance in understanding recent engagement of India with Pakistan as the former has moved the international court for the first time in forty- six years. India instituted proceedings against the Islamic Republic of Pakistan alleging violations of the VCCR (Vienna Convention on Consular Relations). Mr. Jhadav was given death sentence by the military court of Pakistan and in the process denied him consular access guaranteed by the VCCR to which both disputing states are parties. India in its application sought for interim relief by way of restitution in integrum i.e restoration to original condition and premised its request on the jurisdiction of the Court on Article 36, paragraph 1, of the Statute of the Court and Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes.

At this preliminary stage, the court order does not verify the credentials of the claims of either parties; and has merely indicated ‘provisional measures’ i.e, to withhold the execution until the final judgement based on the merits of the case.

Pakistan’s arguments.

Pak’s request for rejection of India’s application is based on three major arguments;

  • First, Pakistan argues that ICJ has no jurisdiction over a bilateral dispute involving ‘espionage’ and ‘security threat’.
  • The second argument is based on the ‘urgency’ of the case. The fact that the date of execution is not determined and the provision of the convict to seek clemency under Pakistan’s domestic law indicates that a court order indicating provisional measures is unnecessary at this point in time.
  • Third, unavailability of provisions under VCCR for the  reversal of the sentence.

The Court’s reasoning

The Court first considered whether it has jurisdiction prima facie to hear the case. India has sought ICJ involvement by invoking Article 1 of the Optional Protocol which reads, “disputes arising out of the interpretation or application of the Vienna Convention are within the compulsory jurisdiction of the court.” Thus the court observed that the allegations made by India i.e, failure of Pakistan to provide the requisite consular notifications and denial of communication and access to Jadhav, appear to be capable of falling within the scope of the Convention.

Another point that emerged in the case was the 2008 Indo – Pak bilateral agreement on consular access. It excludes detentions and arrests on grounds of ‘political and security concerns’ from the general principle of consular access that applies otherwise. In this case the court observed that the 2008 agreement does not change its conclusion on jurisdiction. Nevertheless, certain commonwealth countries enjoy exceptions in accepting compulsory jurisdiction of ICJ based on certain treaties and declarations. Pakistan, on the previous night of Jhadhav’s death sentence, modified its 1960 declaration to limit compulsory jurisdiction of ICJ under Article 36(2). As India has sought ground of jurisdiction under Article 36(1), the modified declaration did not affect the Indian case at this stage.

With regard to the ‘urgency’ argument, Pakistan had given no assurance that Mr. Jadhav will not be executed before the Court has rendered its final decision. Going by precedents set by ICJ in earlier cases, an undetermined date for execution was no case to preclude indication of provisional measures. Thus the court ruled having found a risk of irreparable prejudice to the rights claimed by India.

Will Pakistan budge?

With a stay of the execution of Jhadav in place, what is yet to be seen is Pakistan’s response. Will Pakistan continue the domestic trial of Kulbhushan Jhadav and execute him in defiance of ICJ? 

It is to be noted that Pakistan consented to the case being heard at the International court and sent its representation to Hague and asserted the Pak side of the argument. Had Pakistan not been optimistic of a favourable outcome out of international arbitration, it would have made no effort to present a strong case at all. Pakistan prepares to challenge the jurisdiction in another hearing in Hague soon. If it’s natural choice was to defy any form of international mediation it would make no effort to challenge the current court order. The nature of Pakistani state’s participation in the dispute’s hearing is a harbinger of its hopefulness to draw world attention to India’s activities within its borders. Hence, non- compliance and belligerence would not be Pakistan’s first choice.

On the contrary, in case of a harsh stance of Pakistani military as its policy towards India, it could follow the precedent set by United States by defying ICJ in the persecution of three foreign nationals citing its court’s predominance over a national affair. Although a possibility, it is unlikely due to several reasons. The recent leaks in the newspaper “Dawn” indicated a civil – military rift within Pakistan on several issues, Kulbhushan Jhadav being one of them. The controversial meet of Indian businessman Jindal with Prime Minister Nawas Sharif, following which India made its application in ICJ is speculated as divergence of the civilian government and Pakistani military on its issues with India. Pakistani newspapers reported soon after the ICJ hearing that confidante of Sharif brothers mentioned their willingness to accept ICJ ruling. In addition, Pakistan Punjab government contradicted the Foreign Office and said the country will accept the verdict of the Hague. With such differences within the state an outright defiance of international law is unlikely.

Is execution inevitable?

It is important to distinguish the court’s involvement in the preliminary stage from the assessment of the merits of the case. The ICJ in similar cases earlier have limited its judgement to “review and reconsideration by the detaining state”. Unavailability of an ultimate relief under the convention limits the reach of ICJ. However, if Pakistan continues to challenge the jurisdiction of ICJ over the issue, it would pose an opportune for India to delay the proceedings indefinitely, averting execution of Jhadav. In the absence of precise treaty obligation, India could use its diplomatic flair to settle the dispute out of court, bilaterally with Pakistan once a sense of fatigue and exhaustion sets in the struggle.

On the other hand, if Pakistan manages to develop its arguments along the proceedings of the court and build a strong case of ‘espionage’ and ‘national security threat’ against India, the outcome will be drastically different. The onus is upon India to be prepared for a battle to defend its morale and international reputation.


About the Author

Anna Catherine, Post Graduate Scholar, Christ University & Research Intern, ISSSP, NIAS. She can be reached at <annacatherine224@gmail.com>

Civil Nuclear Liability Regime and Indian Nuclear Power Sector

ISSSP Reflections No. 29, July 23, 2015

Author: Summaiya Khan

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To read the earlier part of this article click here

Copyright: Business Line

Copyright: Business Line

The differences in the nuclear liability regime have been an important stumbling block in the operationalisation of the 2008 Indo-US Nuclear cooperation agreement. This fact can be gauged from the fact that between 2008 and 2015 not a single non-Russian nuclear reactor has been constructed in India during this period.

There are differences both in the terms of liability laws and the terms and conditions of the agreement. Recently, the Ministry of External affairs (MEA) had released a frequently asked questions (FAQ) statement on the nuclear liability. Therein it is stated that there is no change in the liability law, except that the Section 17(B) that reads the operator’s right to recourse, would not be mandatory. The FAQ states that this is only an enabling provision which can be applied when entered into contract by the suppliers and the Nuclear Power Corporation of India Ltd. (NPCIL). This interpretation of the Act is more suppliers-inclined and it is but obvious that the suppliers would opt out of entering into such a contract.

It is also proposed that the damages would be covered through an insurance pool which has relatively lowered the compensation cap favouring the suppliers as the Insurance policy is highly subsidised. The MEA’s FAQ reiterates that the GIC (General Insurance Corporation) and four other Public Sector Undertakings (PSUs) would contribute for 50% of insurance amount, that is, Rs. 750 crores out of Rs. 1500 crores.

In addition to this, NPCIL has to make available an amount of Rs 1500 crores. It is also estimated that the costs of the US- based reactors will be suitably increased which offsets the suppliers from contribution to the Insurance pool. Many surmise that the burden of the insurance pool would fall on the public, with the Indian government underwriting the entire costs of insurance. However the MEA states that the fear of burdening the public or the government is unwarranted as the CLNDA requires the NPCIL/ the operator to make available a financial security to cover its liability to the extent of Rs 1500 crores. The insurance  pool is a 3-tier arrangement that covers liability of the operator, supplier and the key supplier.

In case of India’s Nuclear Liability Law the liability and the onus of compensation solely on the operator, merely giving the operator his right to recourse which is reasonable. The fact that the operator is entitled to compensation that is, only if he is able to prove that the material supplied was of a poor quality leading to the mishap, is ignored. Hence the Liability Act is a balance between the operator and the supplier. The Liability Act though contested, is considered as the best practice, the parties entering into a deal must have a collaborative dialogue.

Nuclear diplomacy is a vital aspect of India’s policies today and it is essential to bring about a balance in nuclear laws to accommodate both suppliers and operators. Strengthening of an international pool of insurance could be one possible solution to facilitate smooth nuclear trade.

Conclusion

In conclusion, it could be surmised there is unlikely to be a sale of nuclear reactors by American companies in the immediate future as the two sides have not been able to make adequate administrative arrangements. The reasons attributed to this situation could be the concerns of the US suppliers over legal proceedings in accordance to the Civil Procedure Code 1908 in case of any accident. Another reason is the stake that Japanese Companies like Toshiba and Hitachi hold in American nuclear power majors like Westinghouse and General Electric (GE). Thus, without an Indo-Japanese nuclear agreement, the sale of American nuclear reactors to India is unlikely to make any headway.

On the other hand, the sale of French reactors by Areva too has been hanging in the balance. Areva has been incurring huge losses with the delays and cost overruns with its EPR reactor projects at France and Finland. Therefore, the prospects of French Nuclear industry and investments from France look bleak.

In the end, this leaves Russia as the strongest player in the Indian civilian nuclear power market. Russian In the past Russian officials described Russian nuclear plants to be cheaper than other plants being offered by other international players. With the expanding Indo-Russian cooperation in the civilian nuclear power sector, and the lack of any forward movement by the other international players, Russia is all set to corner a lion’s share of the Indian civilian nuclear power market in the coming years.


About the Author

Ms. Summaiya Khan is pursuing M.A in Political Science from St. Joseph’s College, Bangalore. This article was written during her Summer Internship at the International Strategic and Security Studies Programme, NIAS, Bangalore. She can be contacted at <sumhani.pals@gmail.com>


 

International Civil Nuclear Liability Regime and India: A Comparative Assessment

ISSSP Reflections No. 28, July 13, 2015

Author: Summaiya Khan

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Image Copyright: DNA

Image Copyright: DNA

The successful negotiation of the Indo-US civil nuclear cooperation agreement in 2008 had resulted in a lot of hopes of investment flowing into India’s civil nuclear power sector. However, those expectations have not seen the light of day partly due to the differences over the Indian nuclear liability regime. In light of the above background, the current article analyses the evolution of the international nuclear liability regimes and posits them against the Indian liability regime as enshrined in the Civil Liability for Nuclear Damage Act, (CLNDA), 2010.

Evolution of the International Nuclear Liability regimes

During the 1950s there was a progress towards generation of nuclear energy for peaceful purpose. Clean energy was accorded top most priority. However, a peaceful nuclear programme would be confronted with the problem of dual use of nuclear material and the issue of nuclear accident with a nuclear reactor leading to fatality and injury of a high magnitude.

The Brookhaven report which was published by the Atomic Energy Commission of the USA in March 1957 addressed similar issues of a nuclear accident or catastrophe. It provided probable estimates of damage that is caused by a nuclear accident like fatalities, injuries and so on. This report propelled the establishment of an international nuclear regime in order to compensate the losses and damages.

International Nuclear Liability laws can be grouped broadly in to the OECD (Organization for Economic Cooperation And Development) Paris Convention, 1960 and the IAEA’s Vienna convention, 1963. The Vienna convention comprising mostly of Eastern European nations where as, western European countries are a party to the Paris Convention.

Both the conventions evolved through various stages and were amended in order to suit the current liability needs. Though these liabilities regimes have differing provisions, they hold a few principles in common like (a) principle of operator’s liability, (b) nuclear damage, (c) provision for compensation and so on. Also, there are similarities in definitions of radioactive products, nuclear installations.

The Paris Convention has very limited scope that is, it is only limited to territory of the contracting party according to Article 2 of the convention, except if mentioned in the legislation of the state of the contracting party. The convention allows very limited time of ten years for the victim of nuclear damage to claim compensation. The Liability amount in the Paris convention is limited, to five to fifteen million Special Drawing Rights (SDR). SDR refers to the asset or the account of the International monetary fund which is used by member countries. Paris Convention allows for carriage of material through maritime international laws which allows innocent passage in time of distress which is not so in the case of the Vienna Convention. The Paris convention also does not explain the word damage in article 1 of list of definitions.

The 1986 Chernobyl accident led to release of radioactive material into the atmosphere and its spread regardless of geographical boundaries. The incident impacted surrounding countries like Belarus, Ukraine and the United Kingdom. Former Soviet Union was not a party to any of the international Civil Nuclear Liability Conventions and had not notified its neighbouring states about the mishap. Therefore, it could not benefit from the compensation arrangements of the liability regimes. The Chernobyl accident stood a testimony to the fact that a nuclear accident does not recognise geographical boundaries and would affect non-contracting states as well.

Post the Chernobyl incident, there was need felt for a regime that was viable to bring about a balance between the two regimes that is the Paris convention (1960) and the Vienna convention (1963). As not all the countries were a party to either of the conventions. It was essential to amend these laws in order to increase the liability compensation, the scope of damage and unite the nations under an umbrella of a single liability regime. As a result there was a Joint Protocol signed in 1988. The 1988 Joint protocol provided a link between the two conventions so that the parties to both the conventions have a benefit of compensation. The joint Protocol after it came in to force in 1992 and enabled those members who were a party to it benefit from both the conventions. Consequently the Vienna convention was amended in 1997 and Parris convention in 2004.

Convention on Supplementary Compensation

The Convention on Supplementary Compensation (CSC) was adopted in the year 1997 at a diplomatic conference at Vienna with a view to provide a worldwide liability regime and to supplement as the name suggests the fund for liability. Any state not a party to either the Paris Convention, 1960 or the Vienna Convention, 1963 can accede to this convention. Ratification or acceptance to this convention is on the condition that a state is party to either the Vienna or Paris convention(s) or the state’s national law must comply with the provisions of the convention.

The CSC adheres with both the provision of the Paris and the Vienna convention with an aim to increase the amount of compensation. It requires the state to make available 300 million SDRs or above by making available requisite public funds. The CSC provides for equitable distribution of the available fund. It prescribes a formula for the contribution of public funds by the contracting parties is the amount which shall be the product of the installed nuclear capacity of that Contracting Party multiplied by 300 SDRs per unit of installed capacity.

The amount determined by applying the ratio between the United Nations rate of assessment for that Contracting Party as assessed for the year preceding the year in which the nuclear incident occurs, and the total of such rates for all Contracting Parties to 10% of the sum of the amounts calculated for all Contracting Parties in conclusion the CSC is an amalgam of the Paris and the Vienna convention that extends the scope of damage it provides for a well-organized distribution of funds with prior notice to the contracting parties of a nuclear incident. The operator is required to furnish a list of nuclear reactors with the depository that holds the operator liable and provide a fund of insurance to supplement the compensation amount that is to be borne by the operator. All these conventions hold the operator severally and jointly liable.

The Indian Civil Nuclear Liability law

The Civil Liability for Nuclear Damage Act, (CLNDA) 2010 provides for compensation arrangements in case of any events of accidents, it also provides for a claims commission which decides the amount of compensation.

However, two of the sections of the bill that is sections 6 and 17 (B) have been a bone of contention by the suppliers. These sections give the operator the right to recourse making the suppliers liable for material that is defective or latent. This provision of the Act has stalled the various deals and transfer of reactors, including from Russia (Kudankulam 3 and 4) and France. The international community perceives these sections as a contradiction to the provisions of CSC. This was done so that the Indian victims of a nuclear disaster also have equal right of compensation like that of the victims in foreign courts.

However, most of the provisions of the CLNDA 2010 are in compliance with the international conventions for compensation by placing the onus of compensation on the operator. The liability rests on the principle of no fault or strict liability like that of the CSC.

Insurance Pool

Insurance is another similarity between both the Indian and the international liability regimes. The CLNDA directs the operator to take insurance before operating the nuclear reactor. Likewise the Convention on Supplementary Compensation for Nuclear Damage (CSC) also provides for insurance mechanism for compensation where each operator must deposit an amount of three hundred million (SDR) special drawing rights which shall be awarded irrespective of nationality or domicile. The amount of compensation in according to CSC the rate of compensation rate is calculated according to the assessment rate of the UN whereas, according to CLNDA the claims commission decides on the amount of compensation.

In accordance to this provision of the CLNDA, an insurance pool has been setup by the General Insurance Corporation (GIC) with the an insurance firm of UK Marsh contributing to the India Nuclear pool.

It is to be noted that the CLNDA in India makes it easy for the victim of a nuclear accident to claim compensation as the law is based on the civil procedure or tort law. A claims commission is appointed to award compensation for a nuclear incident that takes place in the scope or geographical boundary of India to awarding of compensation for a nuclear incident that takes place in the scope or geographical boundary of India to awarding of compensation is similar as per the international liability regime.

It is to be noted that the international liability law is well evolved through decades of amendments and revisions. The Indian liability act is of a recent development subjected to different reading and interpretation. It is also necessary to give the operator his due and right to recourse which is not the case in the international regime as it holds only the operator liable even if the fault does not lie with the operator.

Table 1: Comparison between Indian and International Civil Nuclear Liability Regimes

Paris Convention 1960 Vienna Convention 1963 Revised Paris Convention 2004 Revised Vienna Convention 1997 CSC 1997 CLNDA India 2010
Definition of Nuclear Damage Loss of life, and personal injury and property damage; and damage during transport of nuclear substance to and from nuclear installations. Loss of life, and personal injury and property damage. In addition to damages to persons and to property, other damages including the cost of preventive measures, the cost of measure to reinstate an impaired environment and the economic losses resulted from such an impaired environment were taken into account. Loss of life, and personal injury and property damage. In addition to damages to persons and to property, other damages including the cost of preventive measures, the cost of measure to reinstate an impaired environment and the economic losses resulted from such an impaired environment were taken into account. In addition to damages to persons and to property, other damages including the cost of preventive measures, the cost of measure to reinstate an impaired environment and the economic losses resulted from such an impaired environment were taken into account.
Paris Convention 1960 Vienna Convention 1963 Revised Paris Convention 2004 Revised Vienna Convention 1997 CSC 1997 CLNDA India 2010
Geographical Scope Covers the territory of the contracting parties alone Confined to the contracting party’sterritory More restricted geographical application, and does not cover damage caused on the high seas or other areas beyond national jurisdiction. Extends to all the states including the damages in the non-contracting states. Territory of contracting party; in or above Maritime area beyond the territorial sea of a contracting state; in or above the exclusive economic zone of a Contracting Party or on the continental shelf of a Contracting Party It extends to the whole of India; Territory of India; in or above Maritime area beyond the territorial sea of India; in or above the exclusive economic zone of India or on the continental shelf
Paris Convention 1960 Vienna Convention 1963 Revised Paris Convention 2004 Revised Vienna Convention 1997 CSC 1997 CLNDA India 2010
Liability limit in time 10 years 10 years, but cannot exceed more than 20 years from the date of theft, loss, jettison or abandonment 10 years; exceptional case 20 years Limit extended to 30 years, but only “with respect to loss of life and personal injury.” The CSC Convention provides for a t10 years limitation period, or 20 years from the date of the theft, loss, jettison or abandonment. 10 years for loss of property;20 years for personal injury
Liability limit in amount 5 Million SDR min- 15 Million SDR max. (US$ 7.02-21.06 million) Not less than US$ 5 million (no upper limit fixed) € 700 million minimum(US$ 780 million) 300 Million SDR(US$ 421 million) 300 Million SDR(US$421 million) 300 Million SDR(US$ 421 million)
Paris Convention 1960 Vienna Convention 1963 Revised Paris Convention 2004 Revised Vienna Convention 1997 CSC 1997 CLNDA India 2010
Exceptions Caused by a nuclear incident directly due to an act of armed conflict, hostilities, civil war, insurrection or a grave natural disaster of an exceptional character. Act of armed conflict, hostilities, civil war or insurrection, and, subject to the law of the Installation State, damage caused by a grave natural disaster of an exceptional character. Caused by a nuclear incident directly due to an act of armed conflict, hostilities, civil war, insurrection or a grave natural disaster of an exceptional character. A grave natural disaster of an exceptional character” has been removed from the exceptions

 

A grave natural disaster of an exceptional character; or an act of armed conflict, hostility, civil war, insurrection or terrorism.

About the Author

Ms. Summaiya Khan is pursuing M.A in Political Science from St. Joseph’s College, Bangalore. This article was written during her Summer Internship at the International Strategic and Security Studies Programme, NIAS, Bangalore. She can be contacted at <sumhani.pals@gmail.com>


 

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