CYIL vol. 12 (2021)

jakub handrlica – marianna novotná CYIL 12 (2021) for exclusion of the SMRs from the scope of the Convention. Such exclusion would have major consequences for any prospective deployment of SMRs: Firstly , liability for potential damages would be not channelled upon the operator of a SMR, but will be governed by ordinary tort law. Thus, any supplier or constructor of a SMR would be potentially liable for damages. Secondly, the operator of a SMR will be not required to held mandatory insurance, as required by the Vienna Convention. Thus, the requirements arising from ordinary insurance law will be applicable. If this line of argument would be correct, a Contracting Party to the Vienna Convention might easily license new SMRs in the future, without requiring vigorous mandatory insurance for them. 26 However, the argument regarding exclusion of SMRs from the scope of application of the Vienna Convention does not seem persuasive. There are also several arguments supporting the applicability of the international regime established to various types of SMRs. The wording of the Convention refers explicitly 27 to “ any nuclear reactor other than one with which a means of sea or air transport is equipped .” The Convention defines a “ nuclear reactor ” explicitly as “ any structure containing nuclear fuel in such an arrangement that a self- sustaining chain process of nuclear fission can occur therein without an additional source of neutrons .” 28 Thus, the Vienna Convention makes no differentiation between conventional reactors and SMRs. In this regard, an argument may appear, claiming that the Signatories to the Convention were not aware of the peculiar nature of the SMRs. However, the cited provision itself demonstrates the opposite. When Vienna Convention explicitly excluded those nuclear reactors “ with which a means of sea or air transport is equipped .” 29 Analysing the existing scholarship 30 , we may conclude that the reason behind this exclusion was not based on any low risk, potentially arising from these mobile installations. On the contrary, the Signatories to the Vienna Convention were well aware of the magnitude of risk, potentially arising from these mobile installations and, at the same time, were aware of specific characteristics of those nuclear installations that are mobile. While a stationary nuclear installation will be always located in the territory of the State, it will be the population of that State that primarily faces any consequences of a nuclear incident occurring in that installations. This would be quite the reverse in a case of nuclear ships, or nuclear airplanes, which may cause damage far away from the State of their origin. Consequently, the exclusion of any nuclear reactors “with which a means of sea or air transport is equipped” was made, envisaging future adoption of new international conventions, governing these specific risks.

of the ASME Small Modular Reactor Symposium 2014 (ASME 2014) V001T04A002. Also see Todreas Neil, ‘Small modular reactors (SMRs) for producing energy: An introduction’ in Ingersoll, Daniel T., Carelli, Mario D. (ed), Handbook of Small Modular Nuclear Reactors (2 nd ed., Elsevier 2021) 19. 26 See Sainati, Tristano, Locatelli, Giorgio, Brookes, Naomi, ‘Small Modular Reactors: Licensing constraints and the way forward’ (2015) 82 Energy 1092.

27 Vienna Convention, art. I.1.j.i. 28 Vienna Convention, art. I.1.i. 29 Vienna Convention, art. I.1.j.i.

30 See Reye, Simon, ‘Extension of the technical scope of the Paris and Vienna Conventions: Fusion reactors and reactors in means of transport’ in OECD (ed), Nuclear Accidents – Liability and Guarantees (OECD 1993) 249.

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