CYIL vol. 12 (2021)

CYIL 12 (2021) The Feast of Insignificance of Small Modular Reactors … The fact is that the exclusion as provided by the Vienna Convention failed to address those nuclear reactors equipped with terrestrial means of transport. This represents a stringent difference with the wording used in the existing parallel liability regime, as established by the Convention on Third Party Liability in the Field of Nuclear Energy (thereinafter “the Paris Convention”). 31 The liability regime of the Paris Convention applies to all nuclear reactors “other than those comprised in any means of transport.“ 32 This implicit inclusion reflects plans to launch terrestrial vehicles, equipped with an SMR. These were envisaged to serve as rescue vehicles in case of grave natural or technological disasters. Such rescue vehicles were expected to deliver electricity in remote areas that were cut-off from electricity delivery. 33 However, due to the fact that these rescue vehicles were envisaged to move in a compact territory of a certain State, their liability regime was included into the framework of the Convention. Thus, one can hardly argue that the Signatories to the Vienna Convention failed to consider the existence of SMRs when drafting the provisions of the Convention. On contrary, the Vienna Convention was drafted with the aim to address SMRs and also apply the international liability regime vis-á-vis these technologies. 34 The conclusion, leading to applicability of the regime established by the Vienna Convention to SMRs, has the following major consequences: The individual licensed by the Contracting Party to the Vienna Convention to operate the SMS will be considered as the operator and consequently, will be exclusively liable for any damages arising from a nuclear incident. The liability of other persons, such as the constructor, or the supplier, will be excluded in this regime. The liability of the operator will be strict, with only limited possible exonerations in the cases of armed conflict, hostilities, civil war, insurrection, or a grave natural disaster. The Contracting Party will be able to limit the liability of the operator, however, it can not provide for a limit lower than provided in the Convention. 35 Thus, the Vienna Convention requires the same limit of liability for conventional and small nuclear reactors. The operator will be obliged to maintain mandatory insurance in an amount the Contracting Party will provide in its domestic legislation. 3. The degree of risk and the liability regime established Reflecting the degree of risk, arising from prospective operation of SMRs, one must ask whether it will be viable to maintain the same set of liability rules for the SMRs and conventional reactors. This question is of major importance in particular to prospective deployment of the vSMRs in the future. One may await until all States planning deployment 31 The Convention on Third Party Liability in the Field of Nuclear Energy (adopted 29 July 1960), as amended by the Additional Protocol of 1964 (adopted 28 January 1964, entered into force on 1 April, 1968) and by the Protocol of 1982 (adopted 16 November 1982, entered into force on 7 October 1988). 32 Paris Convention, art. 1.a.ii. 33 Kissich, Susanee, Internationales Atomhaftungsrecht, Anwendungsbereich und Haftungsprinzipien (Nomos Verlag 2004) 141. 34 Accord in Sovacool, Benjamin K., Ramana, M.V., ‘Back to the Future: Small Nuclear Reactors, Nuclear Fantasies, and Symbolic Convergeance’ (2015) 40 Science, Technology & Human Values 96. 35 Vienna Convention, art. V.1.

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