CYIL vol. 14 (2023)

JAKUB HANDRLICA CYIL 14 (2023) or a combination of radioactive properties with toxic, explosive or other hazardous properties of nuclear fuel or radioactive products or waste in, or of nuclear material coming from, originating in, or sent to, a nuclear installation.” 31 In this respect, the Vienna Convention defines the term “nuclear installation” as “any nuclear reactor other than one with which a means of sea or air transport is equipped for use as a source of power, whether for propulsion thereof or for any other purpose. ” 32 Having said this, it is crystal clear that while the Vienna Convention was adopted to create an international regime of nuclear liability covering those nuclear installations which were terrestrial . The exclusion of those reactors, that serve “ means of sea or air transport ” was neither accidental, nor marginal. Such an exclusion reflected the fact that another international convention was adopted nearly a year before the Vienna Convention. The Brussels Convention on the Liability of Operators of Nuclear Ships was adopted on 25 May 1962 (thereinafter: “the Brussels Convention”). 33 There were several reasons for the establishment of separated international regimes of nuclear liability for terrestrial installations on one hand and for transportable installations on the other. 34 Firstly, it was obvious that, while terrestrial installations might easily mitigate possible dangers by locating them far from populated areas, transportable installations were designed to sail into such areas, for example into the ports serving nuclear ships. Further, while the licensing State was expected to appropriately compensate a nuclear incident by such an installation situated in his own territory, the licensing State would not be under such intermediate pressure where the incident occurs in a distant site, where the nuclear ship will be anchored. Lastly, the problem of transportable installations naturally triggered the issue of their entry to the ports of other than licensing States. 35 All these circumstances led to establishing two separate international regimes of nuclear liability, which provided a special framework for the liability of operators of terrestrial installations on one hand and another framework for the liability of operators of transportable installation on the other. In the same manner as the Vienna Convention, the Brussels Convention was also open for accession to any of the member countries to the United Nations, as well as to any of its specialised agencies. 36 Consequently, both the Vienna and the Brussels Conventions were adopted with a clear aspiration to establish a universal regime of nuclear liability, albeit in two rather different fields of technology. Having acknowledged this, one must take into consideration that neither the Vienna, nor Brussels Convention excluded participation of their Contracting Parties in the parallel 31 Ibid. 32 The Vienna Convention, art. I.1.j. 33 The Brussels Convention on the Liability of Operators of Nuclear Ships (adopted 25 May 1962, never entered into force). 34 See HARDY, M. ‘The Liability of Operators of Nuclear Ships’ (1963) 12 International & Comparative Law Quarterly , pp. 779-820. Also see KÖNZ, P. ‘The 1963 Brussels Convention on the Liability of Operators of Nuclear Ships’ (1963) 57 American Journal of International Law, pp. 100–111 and FERGUSSON, E. ‘Liability of Nuclear Powered Vessels: the Work Toward an International Convention – Some Problems and Principles’ (1960) 2 Atomic Energy Law , pp. 25–43. 35 See HANDRLICA, J. ‘Transportable nuclear power plants: an enigma of international nuclear liability law’ (2019) 12 The Journal of World Energy Law & Business , pp. 465–479. 36 The Brussels Convention, art. XXV.1.

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