CYIL vol. 8 (2017)

JAKUB HANDRLICA CYIL 8 ȍ2017Ȏ However, the basic principles of nuclear third-party liability remain unchanged also in the liability régime of the Amended Vienna Convention. 24 Most recently, several facts triggered the attention of the scientific community to the problem of the mutual relation between the liability régime of the Vienna Convention and various technologies being used during radioactive waste management: 1. Most of Contracting Parties to the Vienna Convention became at the same time Contracting Parties to the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management of 1997 (hereinafter “the Joint Convention”). 25 The Joint Convention intends to address the issues of safety of radioactive waste management “through the enhancement of national measures and international co- operation, including where appropriate, safety-related technical co-operation. “ Further, it also intends to “ensure that during all stages of spent fuel and radioactive waste management there is effective defense against potential hazards so that individuals, society and the environment are protected from harmful effects of ionizing radiation, now and in the future, in such a way that the needs and aspirations of the present generation are met without compromising the ability of future generations to meet their needs and aspirations” and to “ to prevent accidents with radiological consequences and to mitigate their consequences should they occur during any stage of spent fuel or radioactive waste management.” 26 Consequently, the Joint Convention is the first legal instrument to address the issue of spent fuel and radioactive waste management safety on a global scale. The Joint Convention establishes minimal standards for spent fuel 27 and radioactive waste management 28 and reaffirms ultimate responsibility of the State vis-á-vis these activities. Taking into regard, that nuclear safety and nuclear liability do constitute “two sides of the same coin”, 29 the adoption of the Joint Convention naturally triggered discussions addressing applicability of the Vienna Convention to technologies of radioactive waste management. 30 24 In this regard, it is worth mentioning, that proposals on State liability were put forward within the Standing Committee by Australia and Italy, which was preparing the text of the Amended Vienna Convention. However, these proposals did not receive sufficient support and were eventually withdrawn. Consequently, the Standing Committee did agree on a revision of Art. XVIII, which, as amended by the Amended Vienna Convention, now provides, that “this Convention shall not affect the rights and obligations of a Contracting Party under the general rules of public international law.” This compromise solution apparently avoids casting doubt on the existence of such general rules; on the other hand, unlike in the original text of the Article XVIII, no reference is expressly made to rules specifically relating to nuclear damage. As result, Article XVIII still leaves the door open for opposing claims as to the existence of State liability for nuclear damage outside the liability régime created under both the Vienna and Amended Vienna Conventions. 25 The Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Liability of 12 th September 1997 entered into force on 3 rd October 2003. 26 Art. I, letters /i/ – /iii/. 27 “Spent fuel management” means ”all activities that relate to the handling or storage of spent fuel, excluding off- site transportation; it may also involve discharges” (Art. 2 letter /o/). 28 “Radioactive waste management” means “all activities, including decommissioning activities, that relate to the handling, pre-treatment, treatment, conditioning, storage, or disposal of radioactive waste, excluding off-site transportation; it may also involve discharges” (Art. 2 letter /i/). 29 TROMANS, S., Nuclear Law. The Law Applying to Nuclear Installations and Radioactive Substances in its Historic Context. Oxford: Hart Publishing, 2010, at pp. 34-36. 30 PELZER, N., Regime of Liability and Compensation for Damage Arising out of Non-Retrievable Waste Disposal (Disposal into the Sea, under the Seabed or in Deep Geological Formations), in: OECD (ed.) Nuclear Third-Party Liability and Insurance, Paris: OECD, 1985, at pp. 332-333.

396