CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ

THE VIENNA CONVENTION ON CIVIL LIABILITY FOR NUCLEAR DAMAGE …

Introduction The main purpose of the Vienna Convention on Civil Liability for Nuclear Damage of 1963 (hereinafter, “the Convention” or “the Vienna Convention”) 1 is to harmonise national legislation relating to third-party liability for nuclear damage. 2 In this regard, the Convention contains some basic liability principles, which differ considerably from the principles of ordinary tort law: 1. Each nuclear installation 3 must have a person in charge: the operator . In the legal framework of the Convention, the operator 4 is “ the person designated 5 or recognised 6 as the operator of a nuclear installation by the state .” The operator of a nuclear installation is exclusively liable for nuclear damage. 7 No other person may be held liable, and the operator cannot be held liable under other legal provisions. 2. Liability is legally channelled solely to the operator of the nuclear installation and is absolute. In relation to this, the Convention provides for very limited liability relief. The operator will be exonerated from liability only if he proves, that the nuclear incident was directly due to armed conflict, hostilities, civil war, insurrection or a grave natural disaster, 8 or that it resulted wholly or partly either from gross negligence of the victim of from an act or omission of the victim with intent to cause harm. 9 3. 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. 10 4. Further, the Convention requires for congruence between operators’ liability and mandatory insurance. 11 1 The Vienna Convention on Civil Liability for Nuclear Damage of 21 st May 1963 entered into force on 12 th November 1977. 2 The Convention does not cover the issue of State responsibility or liability for nuclear damage. This is explicitly provided in its Art. XVIII, which makes it clear that the Convention is not to be “construed as affecting the rights, if any, of a Contracting Party under the general rules of public international law in respect of nuclear damage.” 3 In relation to the term “nuclear installation,” the Vienna 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, Par. 1, letter /d/). 4 Art. I, Par. 1, letter /c/. 5 In this respect, the liability regime established by the Vienna Convention is being interconnected with national public law, regulating nuclear safety, in particular with the permit issued by the competent authority in order to operate the installation. 6 Consequently, the liability regime established by the Vienna Convention would be applicable even to those nuclear installations, being operated illegal on the territory of the Installation State. 7 The Convention provides (Art. X), that the operator has a right of recourse only if this is expressly provided for by a contract in writing, or – in the case a nuclear incident results from an act or omission done with intent to cause damage – against the individual who has acted or omitted to act with such intent. 8 Art. IV, Par. 3. 9 Art. IV, Par. 2. 10 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. 11 The Convention provides (Art. VII, Par. 1) that the operator shall be required to maintain insurance or other

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