CYIL 2012

JAKUB HANDRLICA

CYIL 3 ȍ2012Ȏ

2.1.3 Position of the non-contracting member states Lastly, there is the problem of several “non-contracting” member states. Not all member states are currently a contracting party to any of the existing nuclear third party liability treaties. Some of them saw no necessity to join international obligations in this field, because of their geographic distance from other states. 25 Other member states openly expressed their constraints regarding international treaties in nuclear liability. This is the case with Ireland, Austria and Luxembourg, all of whom are non nuclear states, surrounded by mighty nuclear nations. The principles of nuclear third party liability, as anchored by international treaties, do not apply in these countries. Moreover, their domestic legislation e.g. in Austria) favours applying conventional principles of liability to nuclear damage, which has been understood as a kind of “ provocation ” by the defenders of the principles laid down in the international liability treaties. 2.1.4 Preliminary conclusions: A need for further harmonisation of nuclear third party liability in the European Union Even this very short overview on different problems arising from the co-existence of several liability systems and sub-systems, clearly shows that the current situation is far from satisfactory. Consequently, facing the challenges arising in the post Fukushima period,further harmonisation of rules may be considered very desirable. Obviously, the European Union presents a convenient platform for dealing with these outlined inconsistencies. 2.2 Euratom’s treaty making powers to accede to the Amended Paris Convention Facing the “ labyrinth ” of nuclear liability rules within the Union, discussions have been held over whether the accession of Euratom to the Amended Paris Convention is not an appropriate solution. Therefore, the competencies anchored in the Euratom Treaty must be examined. This may be interesting also from the theoretical point of view, as the Euratom Treaty has not often been made subject to academic examinations. 2.2.1 General treaty making powers laid down in Article 101 of the Euratom Treaty Basically, the Euratom Treaty itself contains a provision on the general treaty making power of the Community in Article 101, which reads as follows: “The Community may, within the limits of its powers and jurisdiction, enter into obligations by concluding agreements or contracts with a third state, an international organisation or a national of a third state. Such agreements or contracts shall be negotiated by the Commission in accordance with the directives of the Council: they shall be concluded by the Commission with the approval of the Council, which shall act by a qualified majority. Agreements or contracts, whose implementation does not

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25 Cyprus and Malta.