CYIL vol. 10 (2019)

JAKUB HANDRLICA CYIL 10 ȍ2019Ȏ that in the Vienna Convention. Also here, only “facilities for the storage of nuclear substances other than storage incidental to the carriage of such substances” are mentioned. 48 However, if compared with the recent interpretation made by INLEX, the term “facilities for the storage” has been interpreted in quite a different way under the Paris Convention. The applicability of the Paris Convention to the facilities for the (final) disposal was first questioned by the “Polvani-Report” in 1977. 49 Consequently, the Steering Committee of the OECD/Nuclear Energy Agency used its powers provided by the Paris Convention and included “the installations for the disposal of nuclear substances” within the scope of the Convention. 50 By this, it has been made clear that the operator of a repository is in principle considered an operator of a nuclear installation and is thus liable under the Paris Convention during the operational phase, when radioactive waste is being placed into the facility. Simultaneously, these developments imply a question of whether the term “facilities where nuclear material is stored,” as used by the Vienna Convention, can be directly interpreted as also covering disposal facilities. This question is underlined by the fact that the Steering Committee issued its decision “without prejudging the question of application of the Paris Convention to the post-closure phase of the repository, when the operations are completed, the repository closed and the waste no longer subject to active surveillance.” 51 This formulation opens the question of whether it is possible to interpret the term “facilities where nuclear material is stored” in the Vienna Convention as proposed recently by INLEX, while the term “facilities for the storage” in the Paris Convention has been continuously interpreted in a rather opposite (i.e. restrictive) way. When posing this question, we must bear in mind that the objective and the purpose of both the Vienna and the Paris Convention has traditionally been interpreted 52 as identical. In this respect, it must also be mentioned that the Contracting Parties to the Paris Convention felt the necessity to also address this issue in the Protocol of 2004. Thirdly, the above-mentioned interpretation is also in contradiction with previous interpretation practice, as developed by the INLEX itself. In this respect, it is possible to refer to the “Explanatory Texts” 53 , published by the IAEA in 2007. Here it was stated that as early as during its 4 th meeting (held from 7 th to 11 th February 2005), INLEX discussed the scope of the existing definitions of “nuclear installation” in the various nuclear liability instruments and the possibility of expanding the definition given to the Board of Governors of the IAEA by the Protocol of 1997. France, Germany, Greece, Italy, the Netherlands, Norway, Portugal, Slovenia, Spain, Sweden, Turkey and the United Kingdom. 48 Paris Convention, Article 1.a.ii. 49 OECD (ed), Objectives, Concept and Strategies for the Management of Radioactive Waste Arising from Nuclear Power Programmes (OECD 1977), p. 188. 50 Decision of the Steering Committee of 11 April 1984 [NE/M(84)1]. The decision was reprinted in OECD (ed), Paris Convention, Decisions, Recommendations, Interpretations (OECD 1990), p. 6. 51 Ibid. 52 See LAGORCE, Maurice, ‘Étude comparative des convetions O.C.D.E. et A.I.E.A. sur la responsabilité civile dans le domaine de l’ énergie atomique’ (1965) 1 Aspects de droit de l’ énergie atomique , pp. 93-102. 53 IAEA (ed), The 1997 Vienna Convention on Civil Liability for Nuclear Damage and the 1997 Convention on Supplementary Compensation for Nuclear Damage – Explanatory Texts (IAEA 2007).

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