CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ HURDLING TOWARD THE PYRAMIDS OF THE NUCLEAR AGE: … In this respect, INLEX recognised that the definition in the Amended Vienna Convention “provided the possibility for the Board of Governors to expand the definition of nuclear installation” to include, for example, “waste disposal facilities and installations in the process of decommissioning.” 54 Consequently, INLEX itself argued in 2005 that only explicit inclusion of disposal facilities would lead to the application of the liability regime to the underground repositories. Consequently, the current interpretation, as provided by INLEX vis-à-vis the applicability of the liability regime of the Vienna Convention to prospective underground repositories, poses serious questions regarding the concept of autonomous interpretation of the treaties. 55 Here, one must ask to which extent it is possible to interpret the term “storage” in an extensive way (i.e. also covering the disposal) under the Vienna Convention, when the same term is understood in a restrictive way in two other and parallel existing international conventions. At this point, I would like to emphasize that, in my opinion, the provisions of the Vienna Convention are not capable of addressing the issue of underground repositories. It is neither viable nor persuasive to argue that the term “storage”, as used in the Vienna Convention also covers the final disposal in these prospective underground repositories, when the same term has been continuously interpreted in very different ways in the parallel existing liability regime of the Paris Convention. Therefore, I consider the only transparent and viable way to ensure applicability of the liability regime discussed vis-à-vis underground repositories, that the competence of the Board of Governors of IAEA will be accepted concerning the explicit inclusion of these facilities into the liability regime. However, such a step can only be taken in the liability regime of the Amended Vienna Convention. Consequently, adherence and subsequent ratification of the Protocol of 1997 is both needed and required in this respect. 3. The liability of the State While dealing with the question of the liability of the operator of a prospective underground repository can be regarded as subject of forthcoming decades, we are now approaching a topic that will rise to the importance in a very distant future. As we saw above, even in the case of the worlds very first underground repository, its decommissioning will take place not earlier than after 2110. After being decommissioned, the magnitude of the risks arising from the spent fuel disposed will gradually decrease. With risks arising expected to be lower and lower, the question arises as to what extent the special liability regime (imposing channelling of liability to the operator and requiring mandatory insurance) will still be required. 56 On the other hand, in this phase, a certain degree of risk will also remain, e.g. risk of damages caused by an earthquake and subsequent ruptures of the geological formations, composing the underground repository. 57 Here, we are discussing the applicability of existing instruments on events that can potentially occur in a period more than 100 years distant from today. 54 Ibid, p. 27 in ft. p. 80. 55 Orakhelashvili, n 35, pp. 335-338. 56 REYNERS, P., ‘Underground Nuclear Repositories and International Civil Liability: The Time Factor’, pp. 140-142. 57 Ibid.

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