CYIL vol. 14 (2023)

CYIL 14 (2023) THE VIENNA CONVENTION ON CIVIL LIABILITY FOR NUCLEAR DAMAGE … it resulted wholly or partly either from gross negligence of the victim or from an act or omission of the victim with intent to cause harm. 10 2. As a quid pro quo for the very strict conditions of the operator’s liability, the Installation State may limit the operator’s liability by the national legislation. However, the Convention provides for a minimum possible liability limit. 11 3. Further, the 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 Installation State specifies. 4. At the same time, the Convention provides that courts of the Installation State where the nuclear incident occurred will have exclusive jurisdiction over all actions brought for damages caused by a nuclear incident occurring in their territory. 12 In a case where nuclear material in transport causes damage within the territory of an Installation State, the court where the nuclear material was situated at the time of damage will be exclusively competent. Having said this, it is clear that the international regime of nuclear liability, as established by the Vienna Convention, has been based on the concept of the civil liability of a private entity, rather than on the concept of the liability of a state. 13 The fact is that these liability principles have been analysed in detail in the legal scholarship 14 and this article does not aim to analyse them further. On the 60 th anniversary of the adoption of the Vienna Convention, this article aims to address a rather different issue, that is to analyse success of the original ambitions of the Convention. Despite a relatively high number of states participating at the International Conference on Civil Liability 15 , it took fourteen years for the instrument to enter into force. At the date of its entry into force (that is on 12 November, 1977), there were only seven states 16 worldwide, participating at the newly established international regime of nuclear liability. Only one of them (Argentina) was in fact operating any nuclear installations in their territories. 17 In the 10 The Vienna Convention, art. IV.2. 11 The Convention provides (Art. V, Par. 1 and 3), that the liability of the operator may be limited by the Installation State to not less than US $ 5 million for any one nuclear incident. The US $ referred to in this 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. 12 The Vienna Convention, art. XI.1. 13 The Convention uses the term “installation state”; this means any „Contracting Party within whose territory a nuclear installation is situated or, if it is not situated within the territory of any State, the Contracting Party by which or under the authority of which the nuclear installation is operated“ (art. I.1.d.). 14 See HARDY, M. Nuclear Liability: The General Principles of Law and Further Proposals (1960) 36 British Yearbook of International Law , pp. 223–228. Also see CIGOJ, S. International regulation of civil liability for nuclear risk (1965) 14 International & Comparative Law Quarterly , pp. 809–21 and more recently LEE, M. Civil liability of nuclear industry (2000) 12 Journal of Environmental Law, pp. 317–32. 15 Argentina, the Belarussian Soviet Socialistic Republic, Chile, Colombia, Cuba, Egypt, Israel, Lebanon, Morocco, Philippines, Spain, the Socialist Federal Republic of Yugoslavia (SFRY), the Union of Soviet Socialistic Republics (USSR) and the United Kingdom. 16 Argentina, Bolivia, Cameroon, Cuba, Egypt, Philippines and Trinidad and Tobago. 17 However, both Egypt, Cuba and Philippines had serious nuclear ambitions at the time, the Vienna Convention was adopted, and they participated at the International Conference on Civil Liability to gain legitimacy to these ambitions.

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