CYIL vol. 14 (2023)

CYIL 14 (2023) THE VIENNA CONVENTION ON CIVIL LIABILITY FOR NUCLEAR DAMAGE … Not all states participating in the “Viennese” regime of nuclear liability have yet joined the Joint Protocol. Currently, this is particularly the case of the Russian Federation. Consequently, any legal instrument facilitating the compensation of nuclear damages in Western Europe remains missing, should a nuclear incident occur in the territory of the Russian Federation. In the territory of Europe, this lack of participation in the Joint Protocol represents a major gap in nuclear liability, as the region is divided upon the “Paris” and “Viennese” regimes of nuclear liability. Participation in the Joint Protocol represents the only legal instrument that connects these two regimes. 88 Theoretically, a legal instrument of EU law could provide for an alternative solution. However, despite certain efforts and discussions, such instruments remain absent. 89 Having said this, one must bear in mind that any EU solution itself will not be capable of addressing relations with non-member states in the region. 3.3 The Vienna Convention and the Convention on Supplementary Compensation The existence of the Convention on Supplementary Compensation for Nuclear Damage (thereinafter “the Convention on Supplementary Compensation”) 90 makes the situation even more complex. The aim of the Convention on Supplementary Compensation was to establish a global framework of public funds for compensation of nuclear damages. This was intended to be open to all States that recognised the principles of nuclear liability, as provided by the Paris and Vienna Conventions. Consequently, the Convention on Supplementary Compensation was designed as a “free-standing” international convention, which was open to both the Contracting Parties to either the Paris or Vienna Conventions, as well as to States not participating in these Conventions, but recognising their principles in domestic legislation. 91 As of January, 2023, there were eleven countries 92 worldwide participating in the system of the Convention on Supplementary Compensation. However, only one of these countries (Romania) was situated in Europe. Simultaneously, several other countries 93 in Europe signed the Convention on Supplementary Compensation and, consequently, one may await ratification of this instrument in some of these countries in the future. Consequently, one may expect establishment of yet another sub-regime of nuclear liability in the next decade, which will be composed of the Revised Vienna Convention and the Convention on Supplementary Compensation. 88 See REYNERS, P. Une large adhésion au Protocole Commun: le moyen de promouvoir une meilleure intégration du régime de responsabilité civile nucléaire en Europe in BEYENS, M., PHILIPPE, D., REYNERS, P. (eds), Prospects of a civil nuclear liability regime in the framework of the European Union, Brussels: Bruylant, 2012, at pp. 155–165. 89 In the aftermath of the Fukushima-Daichi accident (2011), this issue attracted considerable attention of the legal academia. See eg. HANDRLICA, J. Harmonisation of Nuclear Liability in the European Union: Challenges, Options and Limits (2009) 84 Nuclear Law Bulletin, pp. 35–64. Also see papers presented at a seminar organised by the European Commission in 2011, which were subsequently published in BEYENS, M., PHILIPPE, D., REYNERS, P. (eds), Prospects of a civil nuclear liability regime in the framework of the European Union, Brussels: Bruylant, 2012. 90 The Convention on Supplementary Compensation for Nuclear Damage (adopted 12 September 1997, entered into force 15 April 2015), INFCIRC/567. 91 The Convention on Supplementary Compensation, art. XIX.1. 92 Argentina, Benin, Canada, Ghana, India, Japan, Montenegro, Morocco, Romania, the United Arab Emirates and the United States of America. 93 Czech Republic, Italy, Lithuania and Ukraine.

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