CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ THE VIENNA CONVENTION ON CIVIL LIABILITY FOR NUCLEAR DAMAGE … In practical terms, the application of the nuclear liability régime 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. Article I of the Convention defines the term ‘ nuclear incident ’ as “ any occurrence or succession of occurrences having the same origin which causes damage .” 16 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 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.” 17 Further, the Convention defines the term “nuclear installation” as “any nuclear reactor 18 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; any factory using nuclear fuel 19 for the production of nuclear material, 20 or any factory for the processing of nuclear material, including any factory for the re-processing of irradiated nuclear fuel; and any facility where nuclear material is stored, other than storage incidental to the carriage of such material.” Consequently, one of the key issues of the nuclear liability is to identify those facilities, covered by the special régime created by the Convention. To strengthen the liability framework established by the Vienna Convention, several Contracting Parties signed 21 the Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage in 1997. The Vienna Convention, as Amended by the Protocol of 1997 (hereinafter “the Amended Convention” or “the Amended Vienna Convention”) entered force in 2003. However, the Amended Convention hasn’t been ratified by all Contracting Parties of the Convention until now. Consequently, the Amended Vienna Convention is currently valid in those states which already have deposited their instruments of ratification, 22 while in the other states, 23 the (original version of the) Vienna Convention remains in force. 16 Art. I, Par. 1, letter /l/. 17 Consequently, the nuclear liability regime created by the Convention will be not applicable to the damages, arising from a traffic accident that occurred at the site of a nuclear installation. Neither will it be applicable to the damages, arising from a work accident occurred during maintaining works at the site. Similarly, damages arising from a fire in one of the administrative building at the site are not to be considered as “nuclear damages” pursuant to the Convention. However, if such a fire “arises out of or results from the radioactive properties”, damages occurred are to be considered as “nuclear” in the sense of the Convention. 18 “Nuclear reactor” means any structure containing nuclear fuel in such an arrangement that a self-sustaining chain process of nuclear fission can occur therein without an additional source of neutrons (Art. I, Par. 1 letter /i/). 19 “Nuclear fuel” means any material which is capable of producing energy by a self-sustaining chain process of nuclear fission (Art. I, Par. 1 letter /f/). 20 “Nuclear material” means nuclear fuel, other than natural uranium and depleted uranium, capable of producing energy by a self-sustaining chain process of nuclear fission outside a nuclear reactor, either alone or in combination with some other material; and radioactive products or waste (Art. I, Par. 1 letter /h/). 21 Argentina, Belarus, Czech Republic, Hungary, Indonesia, Italy, Latvia, Lebanon, Lithuania, Morocco, Peru, Philippines, Poland, Romania and Ukraine. 22 Argentina, Belarus, Bosnia and Herzegovina, Jordan, Kazakhstan, Latvia, Montenegro, Morocco, Niger, Poland, Romania, Saudi Arabia and United Arab Emirates. 23 Armenia, Bolivia, Brazil, Bulgaria, Cameroon, Chile, Croatia, Cuba, Czech Republic, Egypt, Estonia, Hungary, Lebanon, Lithuania, Mauritius, Mexico, Nigeria, Peru, Philippines, Republic of Macedonia, Republic of Moldova, Russian Federation, Saint Vincent and Grenada, Senegal, Serbia, Slovakia, Ukraine and Uruguay.

395