CYIL vol. 12 (2021)

jakub handrlica – marianna novotná CYIL 12 (2021) of SMRs and vSMRs in particular, will sooner or later face this issue. In this regard, the vigorous system of nuclear liability also imposed to SMRs may represent a major obstacle for the future deployment of these new technologies. 36 Here, one may again refer to the existing parallel liability regime, as established under the Paris Convention. When adopting the Paris Convention, the Signatories were aware of the fact that the nuclear industry was in its infancy and therefore, included several flexible mechanisms into the liability framework established. Here, the Steering Committee for Nuclear Energy of the OECD has competence to exclude “any nuclear installation, nuclear fuel, or nuclear substances from the application of this Convention.” 37 Such a decision would imply that the vigorous liability regime of the Paris Convention will cease to apply to the excluded installation and that ordinary tort law is to be applied to any damages. Under the framework of the Paris Convention, this mechanism was used in the past with respect to those nuclear installations in the process of decommissioning, which led to considerable decrease in risks involved. 38 We must also bear in mind that the exclusion of certain installations from the scope of the Paris Convention does not mean that the respective Contracting Party will have no opportunity to establish its own domestic legislation, which will efficiently cover the risks arising from the installation involved. This mechanism may represent a solution for the future regime of nuclear liability for SMRs. The Vienna Convention also provides for a similarly flexible mechanism. 39 Under the liability regime, as established under the Vienna Convention, the Contracting Party may, if the small extent of the risks involved so warrants, exclude any small quantities of nuclear material from the application of this Convention, provided that: • maximum limits for the exclusion of such quantities have been established by the Board of Governors of the International Atomic Energy Agency; and • any exclusion by the Contracting Party is within such established limits. The fact is, however, that this flexible mechanism does not offer any viable solution for a prospective exclusion of SMRs from the vigorous liability regime of the Vienna Convention. In contrast to the wording of the Paris Convention, the Vienna Convention merely presumes the exclusion of “any small quantities of nuclear material” from the scope of application. 40 Consequently, exclusions of any type of nuclear installations are not presumed by the Vienna Convention. This situation has grave consequences for the prospective deployment of SMRs. Even those vSMRs that represent a considerably lower risk for human health and environment, will be covered by the same rigid liability regime, as the conventional nuclear power plants. 36 See Boarin, Sara, Mancini, Marco, Ricotti, Marco E., Locatelli, Giorgio, ‘Economics and financing of small modular reactors (SMRs)’ in: Ingersoll, Daniel T., Carelli, Mario D. (ed.), Handbook of Small Modular Nuclear Reactors (2 nd ed., Elsevier 2021) 241. 37 Paris Convention, art. 1.b. 38 For further details, see Handrlica, Jakub, ‘Nuclear liability conventions and decommissioning: Exclusion provisions revisited’ (2018) 11 Journal of World Energy Law & Business 196. 39 Vienna Convention, art. I.2. 40 See ‘The Establishment of Maximum Limits for the Exclusion of Small Quantities of Nuclear Material from the Application of the Vienna Conventions on Nuclear Liability’, Resolution GOV/2014/63, IAEA, Vienna (2014), adopted by the Board on 20 th November 2014.

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