CYIL 2015

JAKUB HANDRLICA CYIL 6 ȍ2015Ȏ to this question; however, the very definition of a nuclear operator entails a specific obligation of a state to designate or recognise an operator for any nuclear installation. Consequently, it would be reasonable to consider by extension that this provision also includes the obligation to ensure that someone will always remain liable for the radioactive waste disposed of. 49 One possibility envisaged 50 is that this liability be transferred to the state or a public agency it has designated. In this scenario victims would have no other recourse but to claim compensation directly from the state where the radioactive waste disposal facility is located. In 2004, Contracting Parties to the Paris Convention adopted a Protocol to Amend this international treaty (hereinafter: “the Protocol of 2004”). The Protocol of 2004 is intended to amend the definition of “nuclear installation” of the Paris Convention so as to specifically include all “installations for the disposal of nuclear substances” without distinction. The Explanatory Report which is attached to the Protocol of 2004 explains that “the Contracting Parties believe that it is desirable to have such facilities covered as The issue with nuclear installations being decommissioned is very similar to the issue of radioactive waste disposal. 52 The Vienna Convention is silent with regard to those nuclear reactors in the phase of decommissioning. This issue has been faced by the Installation States only very recently. Scientific literature tends to interpret the applicable provisions in such a way that a facility remains covered by the liability régime of the Convention until the final removal of any nuclear materials. 53 This means that the liability regime established under the Convention will be applicable to the operator of a nuclear installation that has been shut down. During the process of decommissioning liability will therefore rest upon the operator, which means that he will be obliged to carry appropriate liability insurance up to the stipulated liability limit. It may be interesting to add that the NEA Steering Committee explicitly agreed in 1987 that the “provisions of the Paris Convention should be interpreted as covering nuclear installations in the process of decommissioning.” 54 This decision, however, did not reflect the fact that the reduced risk represented by the facility due to its 49 The approach applied to the Paris Convention could easily be applied to the liability system established by the Vienna Convention also. 50 See OECD (ed.): Problems raised by the application of the Convention nuclear third party liability to radioactive waste repositories, Nuclear Law Bulletin, 1995, at p. 20. 51 Explanatory Report, Paragraph 9. 52 See VIROLLE, J. Declassement des installations nucleaires au sens de la convention de Paris sur la responsibilite civile dans le domaine de l’ energie nucleaire et problemes de responsabilite et d’ assurance, In OECD (ed.): Nuclear Third Party Liability and Insurance . Paris: OECD, 1985, at p. 303. 53 See KISSICH, S. Internationales Atomhaftungsrecht. Baden Baden: Nomos Verlag, 2004, at p. 141. 54 See OECD (ed.): Paris Convention. Decisions, Recomendations, Interpretations. Paris: OECD, 1990, at p. 6. “nuclear installations” in their post-closure phase as well.” 51 Installations in the process of being decommissioned

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