CYIL vol. 10 (2019)

JAKUB HANDRLICA CYIL 10 ȍ2019Ȏ use as a source of power, whether for propulsion thereof or for any other purpose 32 is covered. Further, any factory using nuclear fuel for the production of nuclear material, or any factory for the processing of nuclear material, including any factory for the re-processing of irradiated nuclear fuel 33 is also covered by the Vienna Convention. Lastly, there are facilities where nuclear material is stored , other than storage incidental to the carriage of such material 34 and they are also covered. Here, the question arises of whether an underground repository falls under one of the three categories as specified in the Vienna Convention. In particular, the issue must be addressed of whether a repository can be considered to represent a “facility where nuclear material is stored” for the purposes of the Vienna Convention. Very recently, the issue became subject of discussion of the International Expert Group on Nuclear Liability (INLEX), established by the IAEA. At its 18 th regular meeting, which have been held in Vienna from 15 th to 17 th May 2018, the INLEX concluded, that: “during the period where institutional controls remain active (the duration of which will differ from country to country and with different classes of waste), there will still be an operator and the waste can be regarded as being in storage. The nuclear liability conventions would therefore continue to apply to such disposal facilities.” 35 Thus, the INLEX argued that a prospective underground repository belongs under the category of the “facilities where nuclear material is stored”. By developing of this interpretation, the INLEX obviously reflected the fact, that the Vienna Convention aims at “establishing some minimum standards to provide financial protection against damage resulting from certain peaceful uses of nuclear energy.” 36 Consequently, under this line of argument, a prospective operator of an underground repository will be considered an “operator of a nuclear installation” under the Vienna Convention and will bear channelled liability under this instrument of international law. By this line of argumentation, the INLEX aimer at covering a very broad scope of installation under the umbrella of the liability regime, as established under the Vienna Convention and consequently, contribute to the principle of compensation, which aims to guarantee adequate compensation of all potential victims of a nuclear incident. However, the interpretation, as presented by INLEX cannot be considered persuasive. On the contrary, several arguments can be found that question this line of argument. First, the Vienna Convention on the Law of the Treaties provides in its Article 31 that the ordinary meaning of the words is decisive for interpretation of terms used. So, the term “facilities where nuclear material is stored” is to be interpreted pursuant to the plain and ordinary meaning of its words. 37 In this respect, note that the term “storage” was, in the past. distinguished from the term “disposal.” While “storage” has been understood as a temporary (although potentially long-lasting) activity, “disposal” has been traditionally understood as 32 Vienna Convention, Article I.1.j.i. 33 Ibid , Article I.1.j.ii. 34 Ibid , Article I.1.j.iii. 35 OECD/NEA, ‘Nuclear Liability’ (2018) 101 Nuclear Law Bulletin , pp. 97-98. 36 Vienna Convention, Preamble. 37 See ORAKHELASHVILI, A., The Interpretation of Acts and Rules in Public International Law (Oxford University Press 2008), pp. 318-319.

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