CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ HURDLING TOWARD THE PYRAMIDS OF THE NUCLEAR AGE: … Consequently, the Vienna Convention reflects the fact that certain substances (referred to as “nuclear material”, which includes both nuclear fuel, radioactive products and radioactive waste 21 ) present a risk of potential damages. Thus, the Vienna Convention provides, that the operator of a nuclear installation 22 shall be liable for nuclear damage upon proof that such damage has been caused by a nuclear incident either in his nuclear installation, 23 or involving nuclear material coming from or originating in his nuclear installation and originating before the liability was transferred to the subsequent operator. 24 Vice versa, after the transfer of liability, the operator of the nuclear installation, to which nuclear material is sent bears liability for nuclear damages. 25 In this concern, the Vienna Convention provides that the liability for nuclear damages is channelled exclusively to the operator . 26 The liability of the operator is absolute 27 , with only very restricted cases of potential exonerations (such as armed conflict, hostilities, civil war, insurrection and grave natural disaster of an exceptional character). 28 The Vienna Convention Also provides that the operator shall be required to maintain insurance or other financial security covering his liability for nuclear damage in such amount, of such type and in such terms as the respective Contracting Party shall specify. 29 For overall context, I mention that the Amended Vienna Convention provided 30 that the Board of Governors of the IAEA shall from time to time determine “other installations in which there are nuclear fuel or radioactive products or waste“, which also fall under the liability regime established under this Convention. Therefore, in order to assess the scheme of liability for potential nuclear damages, which could theoretically occur as consequence of toxic, explosive, or other hazardous properties of spent fuel disposed in an underground repository, the question must be answered whether such a repository falls under the term “nuclear installation” as provided by the Vienna Convention. In case the answer is yes, the operator of the prospective underground repository is considered an operator under the Vienna Convention and bears liability under the above- mentioned scheme. Should that answer be no, the liability for nuclear damages occurred will still bear upon the operator of that installation from which the spent fuel is originating. In fact, the Vienna Convention does not explicitly refer to underground repositories when defining those “nuclear installations” covered by the specific liability regime. 31 Here, any nuclear reactor other than one with which a means of sea or air transport is equipped for 21 In this concern, the Vienna Convention provides in its Article I.1.g. that „radioactive products or waste“ include „any radioactive material produced in or any material made radioactive by exposure to the radiation incidental to, the production or utilization of nuclear fuel, but does not include radioisotopes which have reached the final stage of fabrication so as to be usable for any scientific, medical, agricultural, commercial or industrial purpose.“ 22 Vienna Convention, Article I.1.c.

23 Ibid , Article II.1.a. 24 Ibid , Article II.1.b. 25 Ibid , Article II.1.c. 26 Ibid , Article II.5. 27 Ibid , Article IV.1. 28 Ibid , Article IV.3. 29 Ibid , Article VII.1. 30 Amended Vienna Convention, Article I.1.j.iv.

31 HANDRLICA, J. ‘The Vienna Convention on Civil Liability for Nuclear Damage and Radioactive Waste Management: Problems Revisited’ (2017) 8 Czech Yearbook of Public and Private International Law , pp. 386- 287.

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