CYIL vol. 12 (2021)

CYIL 12 (2021) The Feast of Insignificance of Small Modular Reactors … While the regime of the Paris Convention does offer a solution for this problem, the issue can not be solved under the existing framework as established under the Vienna Convention. Consequently, one may argue that the Vienna Convention implies per se a barrier to any future massive deployment of SMRs. While the concept of a SMR has been known to the Signatories to the Vienna Convention, they failed to establish any particular framework to address the specific nature of risks arising from these technologies. Thus, a Contracting Party to the Vienna Convention will be not allowed to establish a less rigorous liability regime for the SMRs at the domestic level, as such a step would contradict the requirements of the Vienna Convention. 4. A way forward In regard to the situation in the Czech Republic, the ratification of the Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage 41 may represent a solution of these above identified problems. The revised version of the Vienna Convention (thereinafter “the Amended Vienna Convention”) stands upon identical liability principles as the original version of that Convention. However, it provides for higher liability amounts to be compensated, a wider range of compensated damages and larger geographic scope. 42 The fact is that the Amended Vienna Convention provides 43 for two mechanisms that may prospectively address the specific nature of SMRs: Firstly, a Contracting Party to the Amended Vienna Convention may 44 reflect the “nature of the nuclear installation or the nuclear substances involved” and “the consequences of an incident originating therefrom” by establishing a lower amount of liability of the operator, provided that in no event shall any amount so established be less than 5 million SDRs. In the future, this lower limit of liability may be used with respect of certain SMRs to address specific degree of risks potentially arising from their operation. Secondly, the Amended Vienna Convention reflected the flexible mechanisms as existing in the liability regime of the Paris Convention 45 and allowed for exclusion of certain types of nuclear installations, provided that criteria having been established by the Board of Governors of the IAEA and that the exclusion satisfies such criteria. 46 In the future, this mechanism may represent a viable option in particular vis-á-vis the vSMRs. The fact is that, so far, no such criteria have been established by the Board of Governors of the IAEA. While the Amended Vienna Convention entered into force in 2003, there are 42 For further details, see LammVanda, ‘The Protocol Amending the 1963 Vienna Convention’ (1998) 61 Nuclear Law Bulletin 7. Also see Handrlica, Jakub, ‘The Protocol of 1997 to Amend the Vienna Convention on Civil Liability for Nuclear Damage: a Chance for Strengthening the Liability Framework in Europe’ in Manóvil, Rafaelo M. (ed), Proceedings of the 21st Nuclear Inter Jura Congress »Nuclear Law in Progress« held in Buenos Aires (Argentina) from 20 to 23 October 2014 (Legis 2014) 671. 43 See IAEA (ed), The 1997 Vienna Convention on Civil Liability for Nuclear Damage and the 1997 Convention on Supplementary Compensation for Nuclear Damage – Explanatory Texts (3 rd ed., IAEA 2017) 26. 44 Amended Vienna Convention, art. V.2. 45 IAEA (ed), The 1997 Vienna Convention on Civil Liability for Nuclear Damage, 27. 46 Amended Vienna Convention, art. I.2. 41 The Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage (adopted 12 September 1997, entered into force 4 October 2003), INFCIRC/566.

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