CYIL vol. 12 (2021)

CYIL 12 (2021) The Feast of Insignificance of Small Modular Reactors … Convention is a unit of account equivalent to the value of the United States dollar in terms of gold on 29 April 1963, that is to say US $ 35 per one troy ounce of fine gold. 17 3. Further, the Vienna Convention requires the operator to maintain mandatory insurance or to provide other financial securities covering its liability for nuclear damage in such amounts, of such types and in such terms as the Contracting Party specifies. 18 4. At the same time, the Vienna Convention provides that courts of the Contracting Party where the nuclear incident occurred will have exclusive jurisdiction over all actions brought for damages caused by a nuclear incident occurring in their territory. 19 The fact is, however, that only certain selected installations, are covered by the liability regime, as established by the Vienna Convention. Thus, the Vienna Convention covers three types of installations. Firstly , any nuclear reactor “ other than one with which a means of sea or air transport is equipped for use as a source of power, whether for propulsion thereof or for any other purpose ” 20 is being covered by the regime of the Vienna Convention. Secondly, any factory using nuclear fuel for the production of nuclear material, or any factory for the processing of nuclear material, including any factory for the re-processing of irradiated nuclear fuel is also covered. 21 Thirdly, the Vienna Convention also applies to any facility where nuclear material is stored, other than incidental storage. 22 Consequently, the liability regime as established by the Vienna Convention does not apply to those installations where nuclear materials are used, but implies a lesser degree of risk and which are referred to as “ low-risk installations ”. 23 This is the case with mining and milling facilities and also the case with medicinal facilities, where ionising radiation is being used. While conventional nuclear reactors imply a considerable degree of risk of potential transboundary damage, a nuclear incident in the “ low-risk installations ” implies no such risk and, consequently, there is no need of a special international regime of nuclear liability. Consequently, operators of these “ low-risk installations ” are not subject to exclusive liability and, further, they are not obliged to maintain mandatory insurance, as provided by the Vienna Convention. 24 Considering the intention to exclude “ low-risk installations ” from the scope of the liability regime of the Vienna Convention, one has to ask whether SMRs also fall under this category. The fact is that SMRs (and vSMRs in particular) clearly imply a considerably lower risk for human lives, health and the environment than the operation of conventional nuclear reactors. 25 Consequently, one may argue that the degree of risk represents a major argument 17 Vienna Convention, art. V.3. 18 Vienna Convention, art. VII. 19 Vienna Convention, art. XI. 20 Vienna Convention, art. I.1.j.i. 21 Vienna Convention, art. I.1.j.ii. 22 Vienna Convention, art. I.1.j.iii. 23 Stoiber, Carlton, Baer, Alec, Pelzer, Norbert, Tonhauser, Wolfram, Handbook on Nuclear Law (IAEA 2003) 117. 24 See Handrlica, Jakub, ‘The Vienna Convention on Civil Liability for Nuclear Damage and nuclear installations: Application problems revisited’ (2015) 6 Czech Yearbook of Public and Private International Law 149. 25 See Smith, Curtis, ‘Advanced small modular reactors probabilistic risk assessment framework’ in Proceedings

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