CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ HURDLING TOWARD THE PYRAMIDS OF THE NUCLEAR AGE: … a final solution. 38 It is a fact that the approaches to this final solution have been defined differently in the past. 39 However, the distinction between “storage” and “disposal” was clearly understood in the past. 40 A common understanding of this distinction has been highlighted by defining the term “storage” by the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (thereinafter “the Joint Convention”). 41 Here, the term “storage” is defined as “the holding of spent fuel or of radioactive waste in a facility that provides for its containment, with the intention of retrieval .” 42 Consequently, spent fuel being in a prospective underground repository cannot be considered as “stored”, in the sense of the Joint Convention, as there will be no “intention of retrieval.” To the contrary, it will be classified as “disposed”, as “disposal” is defined as “the emplacement of spent fuel or radioactive waste in an appropriate facility without the intention of retrieval.” 43 In this respect, it is interesting to note that the Vienna Convention itself provides for a distinction between the term “storage” and “handling” of radioactive waste. In fact, the Convention provides, that “the Installation State may provide legislation that, in accordance with such terms as may be specified therein, a carrier of nuclear material or a person handling radioactive waste may, at his request and with the consent of the operator concerned, be designated or recognised as operator in the place of that operator in respect of such nuclear material or radioactive waste respectively.” 44 Further, the Vienna Convention provides that in this case “such carrier will or such person shall be considered, for all the purposes of this Convention, as an operator of a nuclear installation situated within the territory of that State.” 45 Here, it seems clear that the Vienna Convention did not consider the term “storage” as covering all activities involving nuclear materials (apart of their transport). Secondly, the above-mentioned interpretation, as provided by the INLEX, is in absolute contradiction with the interpretation practice, as developed under the framework of the other instrument of international law, addressing the nuclear liability regime. In fact, the Convention on Third Party Liability in the Field of Nuclear Energy (thereinafter “the Paris Convention”) 46, 47 contains a definition of the “nuclear installations”, which is very similar to 38 In this respect, it is possible to refer to the fact, that already in 1960, the draft of the “Exposé des Motifs” to the Convention on Third Party Liability in the Field of Nuclear Energy contained the wording “facilities for the storage and disposal of radioactive waste.” However, as pointed out by Norbert Pelzer, this wording was deleted in the final text for “unexplained reasons”. See Pelzer, n 12, 335. 39 See n 5 for more detailed overview of different solutions of the final disposal, which are recently considered legally, politically, or technical not viable. 40 Accord in STROHL, Pierre, ‘Legal, Administrative and Financial Aspects of Long Term Management of Radioactive Waste’ (1978) 21 Nuclear Law Bulletin , pp. 77-84. 41 Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (adopted 5 September 1997, entered into force 18 June 2001), INFCIRC/546.

42 Ibid , Article 2.t. 43 Ibid , Article 2.d. 44 Vienna Convention, Article II.2. 45 Ibid.

46 The Convention on Third Party Liability in the Field of Nuclear Energy (adopted 29 July 1960), as amended by the Additional Protocol of 1964 (adopted 28 January 1964, entered into force on 1 April 1968) and by the Protocol of 1982 (adopted 16 November 1982, entered into force 7 October 1988). 47 Currently, the following states are Contracting Parties to the Paris Convention: Belgium, Denmark, Finland,

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