CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ THE VIENNA CONVENTION ON CIVIL LIABILITY FOR NUCLEAR DAMAGE … deemed to come within the definition of nuclear installation because of the transitory and fortuitous nature of the storage. Consequently, any damage arising from any incident in these facilities, arising from “ results from the radioactive properties or a combination of radioactive properties with toxic, explosive or other hazardous properties of radioactive waste” 43 will be not covered by the liability regime under the Vienna Convention. 2. Further, there are facilities operated for defence purposes . In this respect, the Preamble of the Vienna Convention states, that one of the reasons for concluding the Convention was “the desirability of establishing some minimum standards to provide financial protection against damage resulting from certain peaceful uses of nuclear energy ” (emphasis added). It is a matter of fact, that there is no further indication in the Convention 44 as to whether it also applies to military facilities, 45 nor was the question discussed during the diplomatic conference which adopted the Convention. 46 However, the Amended Vienna Convention clarifies the situation with respect to these installations stating, that this Convention does not apply to any installations operated for non-peaceful purposes. 47 3. At least but not at last, facilities where merely radioisotopes which have reached the final stage of fabrication to be usable for any scientific, medical, agricultural, commercial or industrial purpose are stored, do not fall under the scope of the Vienna Convention, because they are not considered to constitute “radioactive waste” as defined in the provisions of the Convention. 48 Having said that, we must also refer to a special provision, by which the Vienna Convention is addressing the issue of radioactive waste management. 49 Pursuant to the Convention, the Installation State may provide by legislation that, in accordance with such terms as may be specified therein, a person handling radioactive waste may, at his request and with the consent of the operator concerned, be designated or recognized as operator in place of that operator in respect of such radioactive waste respectively. In this case, such person shall be considered, for all the purposes of this Convention, as an operator of a nuclear installation situated within the territory of that State. Radioactive waste reprocessing facilities The liability régime created by the Vienna Convention, covers also “any factory for the processing of nuclear material, including any factory for the re-processing of irradiated nuclear fuel.” It is a matter of fact that the Convention remains silent regarding any definition of the 43 Art. I, Par. 1, letter /l/. 44 In this respect, the situation is very like the framework established by the Paris Convention. The Preamble of this Convention states, that one of the reasons of its concluding was “ensuring adequate and equitable compensation for persons who suffer damage caused by nuclear incidents whilst taking the necessary steps to ensure that the development of the production and uses of nuclear energy for peaceful purposes is not thereby hindered.” 45 WOLFF, K., The Vienna International Convention on Civil Liability for Nuclear Damage, In WEINSTEIN, J. (ed.): Nuclear liability, progress in nuclear energy , Series X, Vol. 4, Oxford: Pergamon Press, 1966, at p. 18. 46 IAEA (ed.): Explanatory Texts (n 15), at p. 27. 47 Art. I B. 48 Art. I, Par. 1 letter /g/. 49 Art. II, Par. 2.

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