CYIL vol. 10 (2019)

JAKUB HANDRLICA CYIL 10 ȍ2019Ȏ It is a fact that a long-lived consensus in academic literature exists 58 that during a certain period in the future the applicability of the liability regime will cease to be applicable to the underground repository. In fact, two varied reasons can lead to such conclusions in the future. On one hand, a situation is imaginable where there will still be operator available, but the burden of the liability arising will be considered too high as compared with the risks potentially arising from the existence of the underground repository. In this respect, the Amended Vienna Convention provides that a Contracting Party may, if the small extent of the risks involved so warrants, exclude any nuclear installation or small quantities of nuclear material from the application of the Convention, provided that criteria for such exclusion have been established by the Board of Governors of the IAEA and the conclusion satisfies such criteria. 59 Hence, the AmendedVienna Convention provides for a very flexiblemechanism, which is able both include the underground repositories under the liability regime established and also exclude them after certain safety criteria have been met and the risks arising have appropriately decreased. In fact, the practice of the Paris Convention demonstrates experiences 60 with such exclusion criteria, which have been establishes vis-á-vis nuclear installations being in the decommissioning phase and very recently, vis-á-vis repositories for low-radioactive waste. Consequently, similar exclusion criteria must be elaborated in the future, with respect to the underground repositories. In this scenario, the liability regime, as established by the Amended Vienna Convention, will cease to apply to the underground repository after being excluded by the respective Contracting Party. However, at the same time, such a Contracting Party must be aware of the remaining risks, arising per se from the fact, spent fuel had been disposed underground. Therefore, in this scenario, a respective national legislation must be approved, which will guarantee that the State will cover potential damages, arising as a consequence of a nuclear incident in the underground repository. 61 On the other hand, the INLEX recently argued 62 for a different scenario, in which the liability regime (as established by the international conventions) will cease to be applicable in case there will be no operator of the respective underground repository. Also, in this scenario INLEX argued for transfer of liability for potential damages arising as a consequence of a nuclear incident in the underground repository, to the respective State. However, a question arises in this respect of whether there can in fact occur a situation, where no operator will be available. In this respect, the Vienna Convention provides that an operator means “the person designated, or recognised by the Contracting Party as operator of that installation”. 63 When referring to a “designation”, the Vienna Convention is, in principle, 58 See Pelzer, ‘Regime of Liability and Compensation for Damage Arising out of Non-Retrievable Waste Disposal (Disposal into the Sea, under the Seabed or in Deep Geological Formations)’ 332-47, Reyners, ‘Civil Liability for Long-Term Damage Caused by the Disposal of Radioactive Waste’ 123-43, Reyners, ‘The Nuclear Liability Conventions as Applied to Radioactive Waste Geological Repositories: The Test of Time’ 123-43, Reyners, ‘Underground Nuclear Repositories and International Civil Liability: The Time Factor’ pp. 133-43 etc. 59 Amended Vienna Convention, Article I.2.a. 60 HANDRLICA, J., ‘Nuclear liability conventions and decommissioning: exclusion provisions revisited’ (2018) 11 Journal of World Energy Law & Business , pp. 196-208. 61 In this respect, Sussanne Kissich (n 12, 146) argued either for liability of the State under international public law, of for establishing of a public fund, which will accumulate financial resources for covering of potential damages. 62 OECD/NEA, ‘Nuclear Liability’ (2018) 101 Nuclear Law Bulletin , pp. 97-98. 63 Vienna Convention, Article I.1.c. The definition remained unchanged in the Amended Vienna Convention.

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