CYIL Vol. 5, 2014

THE BRUSSELS CONVENTION ON THE LIABILITY OF OPERATORS OF NUCLEAR SHIPS In connection with the rule of channeling, two questions were discussed in contemporary literature, also having major importance for the most recent developments: During the negotiating of the Convention the question was raised whether its provisions should be understood as a bar to the responsibility of states which might be incurred under the public international law to a licensing state which authorized a nuclear-powered vessel without proper safety record. It is a matter of fact that the states may be held liable in the event they themselves operate nuclear-powered ships. At the Conference the French Delegation defended the opinion that the Convention would be a bar against any additional state responsibility arising potentially from public international law. On the contrary, the Delegation of the United Arab Republic defended an opposite view . 30 Other issues of the channeling principle were discussed during the negotiations of the NS Convention. Contemporary literature pointed out 31 that some of the states felt reluctant to exempt manufacturers from potential liability, mainly because they held it to be socially undesirable. Some satisfaction had been created by permitting a contractual preservation of the right of recourse. Furthermore, absolute liability had been laid down as a principle common to all nuclear liability treaties and to most of the legislation in this field. The Convention also incorporated the principle for the area of liability for nuclear-powered vessels in its Article II (1). 32 Operator’s absolute liability also relates to any material stolen or lost, jettisoned or abandoned by him, or transferred to any person other than those authorized by law and liable for nuclear damages. With regard to the absolute liability of the operator, the Convention allowed three narrow exceptions: – pursuant to the Article II (3), the operator’s absolute liability does not extend to damages by the vessel itself, by its equipment, fuel or stores – pursuant to the Article II (5), the operator may be exonerated towards individuals who have caused the damage by an act or omission – pursuant to the Article VIII, nuclear damage caused by a nuclear incident “directly due to an act of war, hostilities, civil war or insurrection” are not covered by the Convention. Limitation and coverage of liability Similar to earlier Conventions negotiated under the Diplomatic Conference on Maritime Law 33 and to the Paris Convention, the Convention also provides for

in the event of a nuclear incident occurring subsequent to the date of such termination, prior to the expiry of a period of twenty-five years after the date of such licensing or other authorization to operate such ship.”

30 Op. cit. sub note 11, at p. 106. 31 Op. cit. sub note 4, at p. 559.

32 “The operator of a nuclear ship shall be absolutely liable for any nuclear damage upon proof that such damage has been caused by a nuclear incident involving the nuclear fuel of, or radioactive products or waste produced in, such ship.” 33 E.g. the Brussels International Convention for the Unification of Certain Rules Relating to the Limitation of the Liability of Owners of Sea-Going Vessels, of 25 August 1924 and the Brussels

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