Month: January 2019

A DISCUSSION ON GEOGRAPHICAL INDICATIONS AND THEIR INTERFACE WITH TRADEMARK

Introduction

Intellectual Property Rights (hereinafter referred to as IP rights) are vested in various intellectual properties, which are broadly understood as the creation of the human intellect or the mind. These rights were first recognized at a global level at the Paris Convention for the Protection of Industrial Property, 1883.[1] There was a growing two-fold need to acknowledge the protection of IP rights by way of legislation, these can be summarized as follows:

•To give statutory expression to the rights of creators and innovators in their creations and innovations, balanced against the public interest in accessing creations and innovations.

•To promote creativity and innovation, so contributing to economic and social development.

The various intellectual properties are usually categorized under two broad headers; Copyright and related rights and Industrial Property. While Copyright relates to literary and artistic creations and the rights emanating out of these authors’ rights, Industrial Property extends from patents and industrial designs to layout of integrated circuits to trademarks and geographical indications. The rationale behind these rights is to protect the products and services rendered by various producers and manufacturers. These rights help the producers convey information about their products to the end consumers to identify the original products. These rights also prohibit the other market players from using such signs which may mislead the consumers.

Article 1(3) of the Paris Convention defines Industrial Property as-

Industrial property shall be understood in the broadest sense and shall apply not only to industry and commerce proper, but likewise to agricultural and extractive industries and to all manufactured or natural products, for example, wines, grain, tobacco leaf, fruit, cattle, minerals, mineral waters, beer, flowers, and flour.[2]

Geographical Indications and Trademarks belong to the genus of Industrial Property and are vested in individual products or even classes of products, which enjoy a goodwill in the market owing to the inherent quality it possesses due to its place of origin or manufacturer. These rights drive the sale of the products in the market and make them appealing to the customers.

The demand of the products is directly proportional to the quality it has, and by the virtue of Geographical Indications and Trademarks, the same can be ascertained easily by the end consumers.

In the instant essay, the researcher will discuss in brief the existence and application of Trademarks and Geographical Indications and the interface of the two.

Geographical Indications

Geographical Indications have been defined under Article 22 of the TRIPs Agreement as follows[3]–

“Geographical indications are, for the purpose of this agreement, indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin”.

Following the TRIPs agreement, the Indian Legislature came up with The Geographical Indications of Goods (Registration and Protection) Act, 1999. Geographical Indications have been defined under the said Act as follows:

“geographical indication”, in relation to goods, means an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be. [4]

Geographical Indications are Industrial Property marks or symbols which are allowed for goods and products manufactured in a certain geographical location, which are characterized by a certain quality, reputation or a feature essentially inherent to the said geographical location.

A geographical indication is available to all of the manufacturers of the said geographical location subject to any existing standard of production etc.

It serves an important socio-economic role, by appreciating the value of the GI product. The users of the GI are rewarded for building and protecting the goodwill in a certain product or class of products, and benefits the entire producer community of a certain territory, helping the financial upliftment, by recognizing their collective right and prohibiting others from infringing upon the same.

In India, an application for geographical can be made by any association of persons or producers or any organisation or authority established by or under any law for the time being in force representing the interest of the producers of the concerned goods, who are desirous of registering a geographical indication in relation to such goods in writing to the Registrar.[5]

A GI can exist forever, as though it is initially granted for 10 years, it may be renewed from time to time[6] according to the provisions of the governing statute.

Trademarks

Trademarks are visible marks on products, meant to distinguish them from alike products and to help the consumers identify the makers of the product, which would help establish the goodwill of the manufacturer in the market. A trademark is a sign, or a combination of signs, that distinguishes the goods or services of one company from those of another.[7] While Trademarks were first discussed in the Paris Convention, the first formal definition of Trademarks is found in the TRIPs Agreement.

The Article 15.1[8] of the TRIPs agreement provides that-

“Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark”.

The definition ventures into the business aspect of trademarks and establishes that, a trademark should be capable of distinguishing the product from other similar products. The World Intellectual Property Organization, the administrative body under the Paris and the Bern convention, while deliberating on the distinctiveness of trademarks noted that it may either be inherent or acquired through use.[9]

However, the need of distinctiveness is a significant factor when the grant of a trademark is concerned, in absence of which registration may be refused. The Trademarks Act, 1999 provides for three absolute grounds in addition to other ancillary grounds for the refusal of trademarks, these are defined under section 9-[10]

S. 9 (1) The trademarks—–

(a) which are devoid of any distinctive character, that is to say, not capable of distinguishing the goods or services of one person from those of another person;

(b) which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or services;

(c) which consist exclusively of marks or indications which have become customary in the current language or in the bona fide and established practices of the trade.

It is pertinent here to mention that the absolute grounds of refusal are derived from the TRIPs agreement, and have been time and again deliberated upon by the INTA (International Trademark Association).

Another characteristic feature of Trademark is that it can be renewed from time to time according to provisions of the governing statute. In India, a trademark is originally granted for 10 years and can be renewed as per the provisions of the Trademarks Act, 1999.[11] This implies that a trademark can technically exist in perpetuity.

Interface of Geographical Indications with Trademarks

The Geographical Indications are very similar in its characteristics to Trademarks, which has often sparked a discussion on its interface with Trademarks, there are overlapping features and characteristics which have to be examined to cull out the various similarities and differences between GIs and Trademarks.

The similarities between GI and Trademarks can be summarized as follows:

  1. GI and Trademarks both belong to the genus of Industrial Property.
  2. The rights are available in rem (against the world at large), making it a negative right.
  3. The rights are available for perpetuity.
  4. These rights are essentially economic, and are intended at boosting the sale.
  5. These rights are based on the distinctiveness and quality of the product, and emanates from goodwill.

The differences between GI and Trademarks are summarized as follows:

S.No. Geographical Indications Trademarks
1.   Is characterized by a certain geographical place of origin. Is characterized by one particular
producing company/proprietor.
2.   Is a collective right available to every producer in the
territory. 		Is an individual right available to
the producer.
3.   Can only be denoted by Geo-political names and symbols related to it. The trademark may be a letter, word, number or its combination, even odor or 3-D shape.
4.   Does not employ human creativity in its
nomenclature. 		Essentially a work of human
creativity.
5.   Can only extend to goods. Can be extended to both goods and services.

Conclusion

The chances of conflicts are very high in cases of such similar rights, however, universally it has been dealt with in a rational manner, in the US, e.g. Trademark application for metal ‘magnolia’ was an obscure geographical name, so the court determined that if the primary significance of the marks to the relevant public was not geographic, it could be registered.[12]

In case of Marlboro cigarettes as well, the court observed-

By heavy advertising over time, when consumers hear or read Marlboro they think of the product (Cigarette) and not the place.  Thus, descriptive names acquire secondary meaning and become distinctive.

It has also been observed that certain geographical locations may not bar the applicants from seeking trademarks if they are totally distinct and the significance is arbitrary, e.g. Amazon.com can not be assumed to be run from Amazon rainforest.

A human application of judicial mind is expected in these situations which more often than not do not follow a set template and is successful in resolving conflicts.

[1] Understanding Industrial Property, https//:www.wipo.int, 8th August, 2018.

[2] Art. 1(3), Paris Convention on Industrial Property, 1883.

[3] Art. 22.1,TRIPs Agreement, 1994.

[4] S.2 (1)(e), The Geographical Indications Of Goods (Registration And Protection) Act, 1999.

[5] S.11(1) The Geographical Indication Of Goods (Registration And Protection) Act, 1999.

[6] S.18(1) The Geographical Indication Of Goods (Registration And Protection) Act, 1999.

[7] Supra at note 1

[8] Article 15, TRIPs Agreement, 1994.

[9] WIPO National Seminar on the Protection of Trademarks and Geographical Indications, Beirut, March 17 to 19, 2003, International Bureau of WIPO, p.4.

[10] S.9, The Trademarks Act, 1999.

[11] S.25, The Trademarks Act,1999.

[12] In Re Magnolia Metal Company’s Trade Marks (1897) 2ch 37 1 (CA).

This article has been authored by Anurag Shankar Prasad.


IRDA AND ITS RELEVANCE IN LIGHT OF THE RECENT DEVELOPMENTS SEEN IN THE INDIAN INSURANCE SECTOR

1. Insurance Laws (Amendment) Act, 2015

The latest Amendment Act of Insurance Laws, 2015 sought to amend the Insurance Act, 1938, The General Insurance Business (Nationalization) Act, 1972 and the Insurance Regulatory and Development Authority Act, 1999.  It was the first major amendment in the Indian Insurance Laws since the enactment of the IRDA Act, 1999.

1.1. The prolonged Amendment

The Insurance Laws Amendment bill which sought to increase FDI from 26% to 49% among other reforms was first put forth by the UPA in the year 2004, but could not be passed due to strong opposition. The coalition government led by Congress in the year pushed for the amendment again in 2008; however a committee on finance which was led by Yashwant Sinha shot the bill down by recommending against the proposed reforms.

In the year 2012, the erstwhile UPA cabinet gave its assent to the bill, and in 2014, the successor government led by BJP referred the same to a committee headed by Chandan Mitra. In 2015, the Union Cabinet gave its assent to the proposed amendments in light of the recommendations made by the committee, and an ordinance was issued to this effect, as the parliament was not in session. Later in 2015, the old bill (without the recommendations) was withdrawn by the Rajya Sabha and the new bill was passed. [1]

1.2. Effect of the 2015 Amendment with specific reference to IRDA

IRDA is the controlling authority of insurances in India. It carries out the various functions in the furtherance of the positive duties obligated under the IRDA Act, 1999 and the Insurance Act, 1938. Thus, the Amendment Act is bound to impact the IRDA. The enactment of 2015 establishes authority as u/s 3 of the Amendment Act, by substituting section1 (A) of the Insurance Act, 1938 as:

(1A) ”Authority” means the Insurance Regulatory and Development Authority of India established under sub-section (1) of section 3 of the Insurance Regulatory and Development Authority Act, 1999.[2]

The Amendment Act has 165 separate mentions of the word “authority”, which echoes the assertion made by the researchers that, the enactment vastly discusses the relevance of IRDA in the insurance industry.

Apart from the key amendments like increasing the extent of foreign direct investment from 26% to 49%, the amendment brought about the following key changes:

  1. It mandated that the properties in India not to be insured with foreign insurers except with the permission of Authority, (in place of the central government) failing which a penalty upto 5 crore rupees may be imposed.
  2. The amendment provided that the Authority may withhold the registration already made in favor of an insurance company if it is satisfied that in the country in which such person has been debarred by law or practice of that country to carry on insurance business.
  3. The amendment provided for various instances which could enable the authority to cancel the registration of an insurer wholly or in part, which included insolvency, non-compliance of regulations and laws under the Insurance Act.
  4. The amended Law has several provisions for levying higher penalties ranging from up to Rs.1 Crore to Rs.25 Crore for various violations including mis-selling and misrepresentation by agents / insurance companies.[3]
  5. The amendment further provides for any insurer or the insurance intermediary aggrieved by any order of the IRDA to prefer an appeal to the Securities Appellate Tribunal (SAT).

Apart from these provisions, the amendment generally empowers the IRDA, as it expands the powers of the regulator and makes its exercise very flexible, and while doing the same; it increases the reach of the insurance industry, which reflects in terms of increased insurance penetration. Since the amendment in the year 2014, the insurance penetration (as % of GDP) has increased from 3.3 to 3.44 in 2015, to 3.49 in 2016 and 3.69 in 2017.[4]

2. Other Initiatives by the IRDA and their Benefits

Since October, 2016 IRDA has mandated E-insurance account to purchase insurances, the same is expected to decrease the cost by 15-20% for life insurance and 20-30% for non-life insurance.[5]

In April 2017, IRDA started a web portal isnp.irda.gov.in that allows the insurers to sell and register policies online. This portal is open to intermediaries in insurance business also; the same is expected to boost the economics of the industry furthermore.

IRDA recently allowed life insurance companies that have completed 10 years of operations to raise capital through Initial Public Offerings (IPOs). Companies will be able to raise capital if they have embedded value of twice the paid-up equity capital. Insurance sector companies in India raised around Rs 434.3 billion (US$ 6.7 billion) through public issues in 2017 alone.[6]

3. IRDA and the Insurance Ombudsman Regulations, 2017

3.1. Functioning of the Insurance Ombudsman under the Regulations

The Central government notified the latest Insurance Ombudsman Regulations in furtherance of the S.24 of the IRDA Act, 1999 and the Redressal of Public Grievances Rules, 1998. The new rules strengthen the position of the Insurance Ombudsman in the Indian Insurance Sector. The powers derived by the ombudsman through the duties and functions enlisted for him under Rule 12 talk about how he is to receive and consider complaints or disputes relating to the delay in settlements of claims, repudiation of policies, disputes over premium paid/payable, the legal construction of contracts of insurance etc.

Rule 12(2) provides that the ombudsman shall act as a counsellor and mediator relating to the aforementioned contingent on the consent of the parties. The Central Government or as the case may be, the IRDAI may, at any time refer any complaint or dispute relating to insurance matters specified.

3.2. Accountability of the Insurance Ombudsman

Now, since the Insurance Ombudsman are entrusted with such great extent (they can award compensation upto 30 Lakhs of Rupees)[7] there must be an element of accountability on these officials, the onus to ensure the same is on the IRDA.

The executive council of insurers is provided for by the Rules, the same is entrusted to control and facilitate the office of the Insurance Ombudsman. The council while is to help with the functioning of the office of the ombudsman, it is also under a positive obligation to inquire into allegations levelled against the ombudsman, provide the ombudsman to make a representation and then forward the inquiry report and the representation of the ombudsman to the IRDA.

The IRDA is under an obligation to decide upon the action to be taken, if any against the insurance ombudsman, and even effect the removal of the ombudsman. IRDA can further inquire suo moto in the functioning of the Insurance Ombudsman and order the executive council of insurers to initiate proceedings and then act.[8]

The IRDA is to be further submitted by the Insurance ombudsman a statement of accounts and any other relevant information and submit to the Executive Council of Insurers with a copy to the IRDAI by the 30th June annually. Further the executive council is also under an obligation to furnish a report with the general view of the performance of the Insurance Ombudsman before IRDA post 30th June and before 30th September annually. IRDA shall consider these reports and take steps as it deems necessary.

Further, an advisory committee of five eminent persons (including one central government nominee) to review the performance of the Insurance Ombudsman is to be constituted by the IRDA, which shall submit its report to the IRDA.

4. Conclusion

The Insurance Regulatory and Development Authority while is the controlling authority of the insurance markets in India, while it has certainly done a lot to regulate the insurance sector, the aspect of development has been conveniently side-lined. The initiatives like the e-insurances and the insurance ombudsmen have been excellently drafted, but not implemented that greatly.

Further, despite the various grants and sanctions from the union government for the insurance sector, the insurance watchdog has very casually left the execution to the various governments without much vigilance.

The failure in speedy disposal of the various disputes before the authority has created deterrent effect of sorts among investors in the markets. The lack of insurance ombudsmen is further of urgent attention, as these officials are the sentinels of the public.

IRDA has however been a greatly successful regulator in the Indian market, the level of transparency in the policy making and the availability of the insurance data in the public domain has increased exponentially over recent times. The digitalization initiative in itself has increased people’s access and has made IRDA much more accountable.

5. Recommendations

The researchers propose the following recommendations to ensure a better insurance sector in the country:

  1. The vacancies in the Insurance regulators and the ombudsmen offices should be regularly filled up.
  2. Stringent penalties for breach of duty shall be imposed on the authority by way of amendments in the Act.
  3. A process must be incorporated by way of a legislation to facilitate the dispute redressal initiated by the companies.
  4. The authority must create a portal for the luminaries and other academicians to upload their recommendations.
  5. IRDA should organize awareness drives to empower the policy holders and the potential policy holders through discourses on their rights.

[1] Insurance Laws (Amendment) Act, 2015.

[2] S.3, The Insurance Laws (Amendment) Act, 2015.

[3] Ss. 4, 53, 63, 88, The Insurance Laws (Amendment) Act, 2015.

[4] Swiss Re Institute, Increasing Penetration and Density of Insurance Over the Years, http://www.ibef.org (accessed on 29th September, 2018).

[5] Aranca Research, Insurance, July 2018.

[6] IRDA, Annual report, 2018.

[7] Rule 17, Insurance Ombudsman Rules, 2017.

[8] Rule 9, Insurance Ombudsman Rules, 2017.

This article has been authored by Anurag Shankar Prasad.

CURBING THE MENACE OF INCREASING FUGITIVE ECONOMIC OFFENDERS- An Analysis of the Fugitive Economic Offender’s Act, 2018.

Curbing the menace of increasing fugitive economic offenders

– An Analysis of the Fugitive Economic Offender’s Act, 2018.

A huge number of reports pertaining to financial irregularities concerning eminent Indian businesspersons have come to light the past year. These irregularities involved manipulation, forgery, fraud in obtaining financial guarantees from National Banks in form of LoU(s) [Letters of Undertaking] Letters of credits etc. As a result, huge financial losses were faced by various lenders and investors. The economic offenders were further observed to flee to various countries around the world so as to avoid prosecution under the Indian Penal Code and other Statutes.

Indian authorities such as the Enforcement Directorate and the Central Bureau of investigation found extraditing these ‘fugitives’ to be an extremely lengthy and arduous task. Since the nature of the offences committed by these offenders is economic, time is of essence, as prolonged legal proceedings tend to devalue the assets and businesses owned by these individuals, making it difficult for the government to realize the amount and repay the original lenders and investors. Further, the value of the related assets in these frauds was found to be miniscule considering the quantum of the money owed pertaining to them.

The existing laws prevented the authorities from attaching properties not connected to the offence, which worked miraculously for the offenders. In the absence of a threat to their property, these willful financial defaulters kept disregarding the rule of law and avoided criminal proceedings.

On 29th January, 2018, PNB filed a complaint regarding a Rs.280 Crore fraud played on the national lender. On 31st January CBI booked Nirav Modi and his partner Mehul Choksi based on the information provided by the bank, in the meanwhile the bank found out about a huge magnitude of loans obtained by falsification of letters of undertaking (LoU) amounting to Rs.11,400 Crores (approximately). The month of February, 2018 saw the unraveling of the PNB scam and exposed the Modi-Choksi modus operandi.


While the governmental agencies enforcing corporate criminal laws (ED, CBI etc.) do not have control over the credit-creation process undertaken by the banks they certainly have the power to investigate and try the offences as and when they crop up. An essential element of these criminal trials is attendance of the accused before the courts. Provisions to ensure appearance of the accused exist in several criminal laws including the Criminal Procedure Code. These processes issued by the courts include service of summons, issuance of warrants, proclamation of offenders and attachment of property.[

Fast-track movement towards an enactment

The attachment of properties in cases involving money laundering had to follow the procedure laid down by the Prevention of Money Laundering Act, which provided for a provisional attachment of properties derived through proceeds of crime for a period of 180 days. Further, the complete confiscation could only happen upon conviction, which would often take years together. Since obtaining a conviction requires a proper trial including appearance of the accused and the current legal regime failed to enforce the same, the incumbent government came up with the Fugitive Economic Offender’s Bill, 2018 before the Lok Sabha on March 12, 2018 in the budget session. As the void in the law could potentially harm the investors and lenders, an ordinance incorporating the provisions of the Bill was promulgated by the President on 21st April, 2018. The ordinance stayed in force for over three months after which the Lok Sabha passed the FEO Bill on 19th July, 2018 and the Rajya Sabha on 25th July 2018.

The act came into force retrospectively from 21st April, 2018[, once the president assented to the same on 31st July 2018. The preamble of the enactment declares the objective of the act as:-

“An Act to provide for measures to deter fugitive economic offenders from evading the process of law in India by staying outside the jurisdiction of Indian courts, to preserve the sanctity of the rule of law in India and for matters connected therewith or incidental thereto”

Key Provisions of the Act:

  • Who is a fugitive economic offender?

The Act provides for the declaration of a person as a fugitive economic offender if- There exists an arrest warrant issued by a court against the person w.r.t  an offence mentioned in the schedule (of the Act), and the person has left India or refuses to come back to India to face criminal prosecution.

Procedure for the declaration of a fugitive economic offender:

  • Application u/s 4:

An application containing reasons to believe that a person is a FEO, details of his properties (own and benami) against which confiscation is sought, information pertaining to his whereabouts and a list of interested parties is to be filed by either a Deputy Director or a Director under the Prevention of Money Laundering Act before the authority ( same as the authority for PMLA Act, 2002).

  • Provisional Attachment u/s 5:

Section 5 provides for provisional attachment of the properties and provisional attachment for a period of 180 days extendable by the special court even before filing an application u/s 4. The properties mentioned u/s 4 subject to the special court’s permission by the Director or any officer not below the rank of the Deputy Director authorized by him may be attached. Such an attachment may be done if there is a reason to believe that the property is proceeds of crime or is a property or a benami property owned by an individual who is a fugitive economic offender who is likely to deal with it so as to make it unavailable for confiscation.

The section however mandates the filing of an application u/s 4 within 30 days.

  • Notice:

Once an application is duly filed before the special court u/s 4, the court shall issue a notice to the alleged person. The notice shall require the attendance of the person at a specified place within 6 weeks of the issuance of the notice, and state that the person will be declared a fugitive economic offender failing to appear.[

The notice u/s10 may be served by electronic means as well, these include:

a) e-mail address linked to the PAN.

b) e-mail address linked to AADHAR

c) Any electronic account as may be prescribed, subject to the court’s satisfaction that it had been recently used.

  •  Proceedings:

Section 11 provides that the proceeding may be terminated if he appears before the court. It also provides that if the person is represented by his counsel he may be given a week’s time (at the court’s discretion) to file a reply to the application u/s 4.

  • Declaration and Confiscation:

Section 12 provides that, upon the conclusion of the proceedings, the court if satisfied may declare a person as a fugitive economic offender recording reasons in writing.

  • The court may then order for the confiscation of the properties which are proceeds of crime, benami or any other properties irrespective of them being located in India or abroad.

The Special Court may, while making the confiscation order, exempt from confiscation any property which is a proceed of crime in which any other person, other than the fugitive economic offender, has an interest if it is satisfied that such interest was acquired bona fide and without knowledge of the fact that the property was proceeds of crime.  

  • The government may dispose of the property after 90 days of such confiscation.
  • Disallowance of any Civil Claims:

Section 14 provides an explicit bar with respect to any civil claims arising out of the confiscated property. Not just the FEO, but also a company or a Limited Liability Partnership firm or a key managerial person (as per the Companies Act, 2013) is barred from bringing about or defending a claim for the FEO.

  • Appeal

An appeal is available against the Special Court’s order to be filed before the High Court within 30 days of the order (extendable to 90 days at the High Court’s discretion).[

The statute has certainly provided teeth to the several impending litigations pertaining to fugitive economic offenders. The Act becomes even more relevant in the light of the recent declaration of Vijay Mallya as a Fugitive Economic Offender on 5th January, 2019. The declaration implies that he now stands compelled to appear before the court if he desires ownership and rights over his other ancillary properties.

This article has been authored by Anurag Shankar Prasad.

Evolution of International Cooperation in the field of Nuclear Law

Since the discovery of Uranium in the year 1789, there was considerable scientific deliberation into its nature and properties. In the year 1896 when the radioactive properties of Uranium were discovered by Henri Becquerel, a whole field of scientific study begun in the area of Nuclear Sciences.

With Ernest Rutherford’s observation that the splitting of Lithium atoms led to a significantly high release of energy, research on nuclear energy commenced. Fast-track research pertaining to harnessing nuclear energy then started in the backdrop of induced radioactivity and other  discoveries in the field of Nuclear and Quantum Sciences, i.e. the discovery of sub-atomic particles such as electron, proton etc. The theory of nuclear fission translated into a reality by late 1930s and the first nuclear reactor came up in Chicago in the year 1942. With the unfortunate bombings of Hiroshima and Nagasaki in the year 1945, the extent of the dissipation of nuclear energy was observed globally.

The evolution of Nuclear Laws can be examined in the light of the following factors:

  • Bombings in Japan.
  • Production of electricity through nuclear fission.
  • The Nuclear Armament Race.
  • Depletion of the fossil fuel reserves.
  • Nuclear Accidents and the need for Nuclear Waste Disposal.

The potential of Nuclear Energy was deeply explored globally, and electricity was first generated in the year 1951 at the Idaho reactor in the US. In the light of the depletion of the exhaustible natural fuels, and the non-feasibility of the renewable resources, nuclear energy was touted as a viable substitute to cater to the exponentially growing population of the world.

The commercial production of electricity by harnessing nuclear energy was debated extensively in the 1950s mostly in light of the WW-II bombings of Japan. The world feared that normalization of nuclear-reactors would lead to a larger threat of Armageddon or a global wipeout of humanity. 

Nuclear laws began to govern the various aspects of nuclear energy aiming to strike a balance between the promotions of nuclear energy, and preventing the misuse of nuclear energy in form of weapons of mass destruction. The legal regime in the US began extensive de-classification of the documents pertaining to its nuclear programme to the civilian community with the Atomic Energy Act, 1954, which provided for both military and civil use of nuclear energy. 

A domestic attempt by a sovereign nation (United States) was viewed as a rather small step in the direction of global peace, and international co-operation pertaining to information sharing and material supply was touted as a solution to end the hostilities among the sovereigns globally.   

1955 saw the first initiative on a global scale being taken up as the, International Conference on the Peaceful Uses of Atomic Energy, Geneva. Representations from 73 nations tallying more than 1400 delegates and over 1000 paper-presentations marked the conference as a landmark event.

In the aftermath of the conference, the International Atomic Energy Agency (IAEA) came into being in the year 1957 with the adoption of the Statute of International Atomic Energy Agency at an International Conference in New York in 1956.

The Principles laid down in the Statute of IAEA helps one to summarize the global take on the peaceful use of nuclear energy, these principles provided for the following:

The principle for international cooperation was subjected to the adherence of the member nations to the rest of the principles. A significant consideration was non-proliferation by the member states. 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.

The Organization for Economic Cooperation and Development in Europe (OECD, then OEEC) followed the lead of the IAEA and established a regional European Nuclear Energy Agency in 1958.  Belgium, France, Germany, Italy, Luxembourg, Netherlands came together to realize the European Atomic Energy Community (EURATOM) which came up in 1958 and, in greater public interest, monopolized the ownership, import and production of fissionable material among the members to instill a sense of security and accountability among them. The various agencies led to the following remarkable developments in the field of nuclear laws:

The international regime has witnessed a change in its approach pertaining to nuclear laws, significant changes including mandatory disclosures on the packaging, isolation of radioactive substances, safeguards against misuse of nuclear material among other measures have been taken by the agencies to answer to the threats posed due to the nuclear substances.

In the light of the large scale environmental degradation that follows nuclear accidents, the principle of absolute liability has been extended to nuclear facilities. Environmental Impact Assessments, mandatory insurances and indemnities by the government are being followed internationally.

The issue of Nuclear Waste disposal has been addressed differently by different nations, while certain nations such as the United States have strictly adhered to the policy of isolation of nuclear waste rich in reactor grade plutonium, other nations such as France, Canada and India have attempted to reuse the same as Mixed Oxide Fuels. Technologies such as Integral Fast reactors have been developed to minimize the generation of radio-active waste.

However, a homogenous global solution to the menace of nuclear waste still has not been achieved, and the same poses a great threat to the ecology of the containment facilities where the waste is stored or treated. There is a greater need for international co-operation to deal with the same.

Further, International Cooperation is very crucial pertaining to Nuclear Laws as, it is a rapidly developing promising field of Energy law which concerns a great number of nations. The Nuclear industry warrants a dynamic legal regime as the industry itself is very dynamic.

This article has been authored by Anurag Shankar Prasad.