CYIL vol. 11 (2020)

MARIANNA NOVOTNÁ – VERONIKA TROJČÁKOVÁ CYIL 11 (2020) That conclusion 21 is supported both by the preparatory work ( travaux préparatoires ) on the text of the 1963 Vienna Convention 22 as well as on the text of the 1997 Protocol revising the original text of the Vienna Convention, 23 as well as by the principle of inadmissibility of extending liberation grounds by means of too extensive interpretation. Although the national legislation of most countries does not explicitly address the issue of liability for nuclear damage caused by an act of nuclear and radiological terrorism it can be stated (in the light of absence of explicit regulation) that also in this case the nuclear facility operator is liable for nuclear damage due to exclusion of the act of terrorism from liberation grounds. Based on a report elaborated by the OECD / NEA Secretariat and based on the information obtained from questionnaires answered by the Member States, most of the surveyed countries confirmed the above presented approach of including acts of terrorism between cases in which the nuclear facility operator bears liability for caused damage. 24 3.2 Grave natural disaster of an exceptional character Pursuant to Art. IV par. 3 letter b) of the Vienna Convention and Art. 9 of the Paris Convention, the nuclear facility operator is not liable for nuclear damage caused by a nuclear incident which is a direct consequence of a grave natural disaster of an exceptional character. Based on the enabling provision in Art. IV par. 3 letter b) of the Vienna Convention as well as Art. 9 of the Paris Convention it is possible to exclude the grave natural disaster of an exceptional character from the scope of liberation grounds in national regulation, as a result of which the operator would also be liable for vis maior . The development of relevant nuclear legislation, inspired inter alia by the idea that nuclear installations should be built and maintained in such a technical condition as to be able to withstand natural disasters of various kinds, 25 such as earthquakes 26 , floods, hurricanes or others, concerned the legitimacy of this liberation ground in the nuclear liability legislation in terms of the fulfilment of the objectives which the liberation grounds have to fulfil in relation to the liable entity and its interests as well as in correlation with the interests of the injured party. In the historical context with regards to works on revisions of the Vienna 21 To more detailed approach see HORBACH, Nathalie L.J.T., BROWN, Omer F., BORRE, Tom Vanden ‘ Terrorism and Nuclear Damage Coverage. ’ (5th International Conference on Nuclear Option in Countries with Small and Medium Electricity Grids, Dubrovnik, Croatia, May 16-20, 2004) Available on-line on http://www. iaea.org/inis/collection/NCLCollectionStore/_Public/35/062/35062769.pdf. 22 See Civil Liability for Nuclear Damage: Official Records of the International Conference on Civil Liability for Nuclear Damage, Vienna, 1964 (IAEA, STI/PUB/54), p. 46. 23 See document SCNL/13/INF.3, s. 13; HORBACH, Nathalie L.J.T., BROWN, Omer F., BORRE, Tom Vanden ‘ Terrorism and Nuclear Damage Coverage. ’ (5th International Conference on Nuclear Option in Countries with Small and Medium Electricity Grids, Dubrovnik, Croatia, May 16-20, 2004) Available on-line on http://www. iaea.org/inis/collection/NCLCollectionStore/_Public/35/062/35062769.pdf. 24 Austria, Belgium, Canada, Czech Republic, Denmark, Finland, France, Germany, Italy, Korea, the Netherlands, Norway, Slovak Republic, Slovenia, Spain, Sweden, USA, United Kingdom, Ukraine, Switzerland. (OECD/ NEA Secretariat: Insurance coverage for third party liability and material damage arising from nuclear incidents caused by terrorist acts. Nuclear Law Bulletin 78/2006, 19-35). 25 The 1997Vienna 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, 51. 26 HANDRLICA, Jakub “Hurdling toward the pyramids of the nuclear age: A study in legal futurism” (2019) 10 Czech Yearbook of Public and Private International Law 288.

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