CYIL vol. 12 (2021)

jakub handrlica – marianna novotná CYIL 12 (2021) Secondly, it will question if the existing liability regime is capable to address the peculiar character of SMRs, in particular their relatively lower level of risks, as compared with conventional nuclear reactors (Part 3). Thirdly, it will identify which measures are to be taken concerning the future liability regime, which will reflect both specific risks potentially arising from the operation of SMRs and guarantee appropriate levels of protection and financial compensation (Part 4). 2. The Vienna Convention on Civil Liability for Nuclear Damage and SMRs The Vienna Convention on Civil Liability for Nuclear Damage (thereinafter “the Vienna Convention” or “the Convention”) 12 aimed to establish a specific regime of liability and compensation regarding the peaceful uses of nuclear energy. This particular regime stands upon specific liability principles 13 that differ as follows from the principles of liability in ordinary tort law: 1. Firstly, each nuclear installation must have an individual in charge: the operator. In the legal regime of the Vienna Convention, the operators are those entities designated or recognised as the operator of a nuclear installation by the State. 14 Under the liability regime established, the operator of a nuclear installation is exclusively liable for nuclear damage. No other person may be held liable, and the operator cannot be held liable under other legal provisions. 15 Consequently, the conventions provide for very limited liability relief. The operator will be exonerated from liability only if he proves, for example, that the nuclear incident was directly due to armed conflict, hostilities, civil war, insurrection, a grave natural disaster, or that it resulted wholly or partly either from gross negligence of the victim or from an act or omission of the victim with intent to cause harm. 2. As a quid pro quo for these very strict conditions of the operator’s liability, the Contracting Party may limit the operator’s liability by national legislation. However, the conventions provide for liability limits, which may be implemented by national legislation. The Vienna Convention provides that the liability of the operator may be limited by the Contracting Party to not less than US $ 5 million for any one nuclear incident. 16 In this respect, the Vienna Convention has established a floating limit, as the US $ referred to in this 13 Emergence of these liability principles attracted the considerable attention of legal scholarship, see e.g. Hardy, Michael, ‘Nuclear Liability: The General Principles of Law and Further Proposals’ (1960) 36 British Yearbook of International Law 223, Cigoj, Stojan, ‘International regulation of civil liability for nuclear risk’ (1965) 14 International and Comparative Law Quarterly 809, LEE Maria, ‘Civil liability of the nuclear industry’ (2000) 12 Journal of Environmental Law 317. For a contemporary account on liability principles, as provided by the newly adopted Vienna Convention, see WOLFF, Karl, ‘New international legal regime for civil liability for nuclear damage’ (1965) 4 Journal of British Nuclear Energy Society 244 and WOLFF, Karl, ‘The Vienna International Convention on Civil Liability for Nuclear Damage’ in Jerry Weinstein (ed), Nuclear liability, progress in nuclear energy, Series X, Vol. 4 (Pergamon Press 1966) 1. More recent account of these liability principles can be found in Handrlica, Jakub, Novotná, Marianna, ‘Vienna Convention on Civil Liability for Nuclear Damage: Past, Evolution and Perspectives’ (2018) 8 Tribuna Juridica 48. 12 The Vienna Convention on Civil Liability for Nuclear Damage (adopted 21 May 1963, entered into force on 12 November 1977), INFCIRC/500.

14 Vienna Convention, art. I.1.c. 15 Vienna Convention, art. II.5. 16 Vienna Convention, art. V.1.

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