CYIL vol. 14 (2023)

CYIL 14 (2023) THE VIENNA CONVENTION ON CIVIL LIABILITY FOR NUCLEAR DAMAGE … outlined the main aim of this article, we must bear in mind that the liability and compensation regime of the Vienna Convention has never been put into the practice so far. That means, there have been no actual cases of nuclear incidents that were covered by the scheme of the Vienna Convention. 26 Despite this fortunate lack of actual nuclear events, the developments of the last six decades are worth analysis and evaluation. In this respect, this article addresses the universal aspiration of the Convention and the road towards establishment of various “Viennese” regional regimes worldwide. The article analyses the reasons why the original universal ambition of the Vienna Convention hasn’t been fulfilled. At the same time, it also argues that despite the failure to establish a universal regime for nuclear liability, the Vienna Convention has contributed considerably to strengthening the liability regimes by means of international law. 2. A (Futile) Quest for Universalism The Vienna Convention has been open for accession to any of the member countries to the United Nations, as well as to any of its specialised agencies or IAEA member country. 27 Despite this original aim to attract worldwide interest in the newly established regime of nuclear liability, a number of states decided either to participate in different schemes of nuclear liability, or not to participate in any international regime at all. The countries of Western Europe decided to establish their own regional regime of nuclear liability under the Paris Convention and, more recently, under the Revised Paris Convention. 28 Several major nuclear states – such as Canada, South Africa, China, Japan and India – have never joined the international regime of nuclear liability, as established by the Vienna Convention. 29 One member of the Contracting Party to the Convention used the possibility of termination to join another international regime of nuclear liability. The following part aims to analyse these various stances towards the Vienna Convention and, consequently, the reasons why the original universal ambition of this instrument was never achieved. 2.1 Universalism of the Vienna Convention and its limits Presenting the Vienna Convention as an instrument, adopted to achieve a worldwide regime for nuclear liability, deserves certain clarification. In practical terms, the application of the regime of nuclear liability created by the Convention will be triggered if a nuclear installation causes a nuclear incident. Consequently, the terms ‘ nuclear installation ’ and ‘ nuclear incident ’ form the core of the international regime. The Vienna Convention defines the term ‘ nuclear incident ’ as “ any occurrence or succession of occurrences having the same origin which causes damage .” 30 However, the nuclear third party liability regime of the Convention is applicable only to those damages which “ arise out of or result from the radioactive properties 26 See HANDRLICA, J. Black swans, dragon kings and the uncertainty in international nuclear law (2021) 14 Journal of World Energy Law & Business , pp. 25–37. 27 The Vienna Convention, art. XXIV.1. 28 See HANDRLICA, J. A new transnational regime for nuclear liability and compensation in Europe (2022) 11 Czech Yearbook of Public & Private International Law, at pp. 225–249. 29 See PELZER, N. Focus on the Future of Nuclear Liability Law (1999) 17 Journal of Energy and Natural Resources Law, at pp. 332–353. Also see COOK, H. A nuclear third party liability regime of a multilateral nuclear approaches framework in the Asian region (2014) 6 Sustainability, at pp. 436–448. 30 The Vienna Convention, art. I.1.l.

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