CYIL vol. 8 (2017)

JAKUB HANDRLICA CYIL 8 ȍ2017Ȏ 5. Operators’ liability is also limited in time. 12 Since physical injury from radioactive contamination may not manifest itself for some time after the nuclear incident, the adoption of a too short period of limitation would clearly be inequitable. On other hand, this very fact, combined with the difficulty of proving that long-term radiation damage is due to a given source, has resulted in the adoption of a term shorter than those usually provided for under the general rules of tort law. 6. 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. 13 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. Most currently, the provisions of the Convention do establish basic nuclear liability principles in 40 states worldwide. 14 Basically, each Contracting Party can choose between incorporation of the Convention in the domestic legal system, thus allowing for its direct application, and the adoption of national legislation specifically implementing the Convention. However, it is a matter of fact that the Convention does not bring about complete harmonisation; rather, as is stated in its Preamble, is established “some minimum standards to provide financial protection against damage resulting from certain peaceful uses of nuclear energy.” Consequently, a certain degree of discretion is thus left to national legislation. 15 financial security covering his liability for nuclear damage in such amount, of such type and in such terms as the Installation State shall specify. The Installation State shall ensure the payment of claims for compensation for nuclear damage which have been established against the operator by providing the necessary funds to the extent that the yield of insurance or other financial security is inadequate to satisfy such claims, but not in excess of the limit, if any, established pursuant to Article V. However, in this regard, the Convention also provides that Contracting Party or any of its constituent sub-divisions, such as States or Republics, are not required to maintain insurance or other financial security to cover their liability as operators. 12 The Convention provides (Art. VI, Par. 1) that rights of compensation under this Convention shall be extinguished if an action is not brought within ten years from the date of the nuclear incident. If, however, under the law of the Installation State the liability of the operator is covered by insurance or other financial security or by State funds for a period longer than ten years, the law of the competent court may provide that rights of compensation against the operator shall only be extinguished after a period which may be longer than ten years, but shall not be longer than the period for which his liability is so covered under the law of the Installation State. Such extension of the extinction period shall in no case affect rights of compensation under this Convention of any person who has brought an action for loss of life or personal injury against the operator before the expiry of the aforesaid period of ten years. Further, the Convention provides (Art. VI, Par. 3) that the law of the competent court may establish a period of extinction or prescription of not less than three years from the date on which the person suffering nuclear damage had knowledge or should have had knowledge of the damage and of the operator liable for the damage, provided that the period established pursuant to paragraph 1 of this Article shall not be exceeded. 13 Art. XI, Par. 1. 14 Argentina, Armenia, Belarus, Bolivia, Bosna and Herzegovina, Brazil, Bulgaria, Cameroon, Chile, Croatia, Cuba, Czech Republic, Egypt, Estonia, Hungary, Jordan, Kazakhstan, Latvia, Lebanon, Lithuania, Mauritius, Mexico, Montenegro, Morocco, Niger, Nigeria, Peru, Philippines, Poland, Republic of Macedonia, Republic of Moldova, Romania, Russian Federation, Saint Vincent and Grenada, Saudi Arabia, Senegal, Serbia, Slovakia, Ukraine and Uruguay. 15 IAEA (ed.): The 1997 Vienna Convention on Civil Liability for Nuclear Damage and 1997 Convention on Supplementary Compensation for Nuclear Damage – Explanatory Texts, Vienna: IAEA, 2007, at pp. 6-7.

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