CYIL vol. 11 (2020)

MARIANNA NOVOTNÁ – VERONIKA TROJČÁKOVÁ CYIL 11 (2020) where its imposition would not be justified by the fulfilment of the fundamental functions of tort law. The Vienna regime establishes as liberation grounds for the operator the (co-)fault of the injured party (Article IV (2) of the Vienna Convention), armed conflict, act of hostility, civil war, insurrection (Article IV (3) (a) of the Vienna Convention); a grave natural disaster of an exceptional character (Article IV (3) (b) of the Vienna Convention) and a specific case where the operator is not liable for damage caused to the so-called on-site property (Article IV (5) of the Vienna Convention). Similarly as in the Vienna Convention, the liberation grounds for the operator of the nuclear facility are also regulated by the Paris Convention. The possibility of liberation is considered if the damage was caused by a nuclear event as a direct result of certain specific and unpredictable situations of international nature, such as armed conflicts and political unrest, civil wars, insurrections or natural disasters of an exceptional nature. Within the Paris Convention these are the only liberation grounds. As with the provisions of the Vienna Convention, the national legislation of the Contracting States may, in cases of natural disasters, establish that the operator of a nuclear installation is liable for damage caused by a nuclear incident also if the nuclear damage occurred as a direct result of a natural disaster of an exceptional nature. Enumeration of the liberation grounds regulated by the nuclear liability legislation is exhaustive. Given the unifying nature of the international law of the Vienna and Paris Conventions, this numerus clausus cannot be amended or extended by an extensive Pursuant to Art. IV par. 3 of the Vienna Convention and Art. 9 of the Paris Convention, the operator of a nuclear installation is not liable for nuclear damage caused by a nuclear incident if he proves (burden of proof lies on the operator) that the damage was caused as a direct result of armed conflict, hostility, civil war or insurrection. The Protocol 1997 that amended the original version of the Vienna Convention modified the application of the liberation grounds of armed conflict, acts of hostility, civil war and insurrection by establishing a condition under which the operator liberates from liability only if he proves that the nuclear damage occurred as a direct result of these events. The Protocol thus determined the requirement to prove a direct causal link between the nuclear damage and an event of an armed conflict, an act of hostility, civil war or insurrection, thus excluding the possibility to liberate if those events were merely an indirect cause of nuclear damage. On the one hand, the international law of armed conflict subsumes both international and national armed conflicts under the term “armed conflict” which as a result we may conclude that acts of civil war or insurrections are equivalent to the concept of modern understanding of the act of (national) armed conflict. 15 It may lead to the conclusion that for the purposes of liberating the operator it would be sufficient to use the term armed conflict thus implying an act of civil war and insurrection. 15 IAEA: The 1997 Vienna Convention on Civil Liability for Nuclear Damage and the 1997 Convention on Supplementary Compensation for Nuclear Damage. Explanatory Texts. A comprehensive study of the Agency’s nuclear liability regime by the IAEA International Expert Group on Nuclear Liability (INLEX) to aid the understanding and authoritative interpretation of that regime, 2004, 52-53. interpretation or by national legislation of the Contracting States. 3.1 Armed conflict, act of hostility, civil war, insurrection

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