CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ THE VIENNA CONVENTION ON CIVIL LIABILITY FOR NUCLEAR DAMAGE … 2. The issue of applicability of third party liability for nuclear damage on technologies, being used during radioactive waste management has been discussed quite extensively in the framework of the parallelly existing Paris Convention (hereinafter: “the Paris Convention”). 31 In 2004, Contracting Parties 32 to the Paris Convention adopted a Protocol to Amend this international treaty (hereinafter: “the Protocol” 33 ). Among others, the Protocol of 2004 is intended to amend the definition of “nuclear installation” of the Paris Convention to specifically include all “installations for the disposal of nuclear substances” without distinction. The Explanatory Report, which is attached to the Protocol of 2004, explains that “the Contracting Parties believe that it is desirable to have such facilities covered as “nuclear installations” in their post- closure phase as well.” 34 3. In relation to the definition of a “nuclear installation”, the Amended Vienna Convention contains a new provision, 35 whereby the definition of “nuclear installation” includes “such other installation in which there are nuclear fuel or radioactive products or waste as the Board of Governors of the International Atomic Energy Agency shall from time to time determine.” Taking these challenges into regard, this contribution intends to deal with these issues in the light of existing scientific literature and in the light of the developments in other liability frameworks. The Vienna Convention and Radioactive Waste Management: Problems Revisited It is a matter of fact, that when the Vienna Convention was drafted, the question of hazards linked to radioactive waste disposal was not yet fully understood. Therefore, while the Convention covers installations for the processing of nuclear material explicitly, it does not refer specifically to radioactive waste disposal. On the other hand, the Vienna Convention explicitly refers to “radioactive products and waste” when defining the “nuclear material”. 36 The lack of explicit provisions on radioactive waste disposal in the Vienna Convention is obviously due to the fact, that when they were drafted, the development of nuclear energy 31 The Convention on Third-Party Liability in the Field of Nuclear Energy of 29 th July 1960, as amended by the Additional Protocol of 28 th January 1964 and by the Protocol of 16 th November 1982. The Paris Convention and the Additional Protocol entered into force on 1 st April 1968. The Protocol of 1982 entered into force on 7 th October 1988. The Paris Convention was adopted under the auspices of the OECD Nuclear Energy Agency and covers most Western European countries (Belgium, Denmark, Finland, France, Germany, Greece, Italy, Netherlands, Norway, Portugal, Slovenia, Spain, Sweden, Switzerland, Turkey and the United Kingdom). 32 Belgium, Denmark, Finland, France, Germany, Italy, Netherlands, Norway, Slovenia, Spain, Sweden, Turkey and the United Kingdom. On 9 th March 2009, Switzerland deposited its instrument of ratification of the Paris Convention as amended by the 1964, 1982 and 2004 amending Protocols. As this ratification is effective only with respect to the Paris Convention as amended by all 3 Protocols, entry into force for Switzerland of the Paris Convention as so amended will only take place once the Protocol has itself entered into force. 33 The Protocol to Amend the Paris Convention on Third Party Liability in the Field of Nuclear Energy of 12 February 2004 hasn’t yet entered into force. 36 “Radioactive products or waste” means “any radioactive material produced in, or any material made radioactive by exposure to the radiation incidental to, the production or utilization of nuclear fuel, but does not include radioisotopes which have reached the final stage of fabrication so as to be usable for any scientific, medical, agricultural, commercial or industrial purpose” (Art. I, Par. 1 letter /g/). 34 Explanatory Report, Paragraph 9. 35 Art. I, Par. 1 letter /j/, Section /iv/.

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