CYIL vol. 8 (2017)

JAKUB HANDRLICA CYIL 8 ȍ2017Ȏ term “irradiated nuclear fuel”. 50 However, given the definition of “spent nuclear fuel” in the Joint Convention, 51 scientific literature 52 tends to agree, that facilities used for reprocessing of radioactive waste (spent nuclear fuel) do fall under the definition of “nuclear installation” under the Vienna Convention. Also, here, two remarks are to be made concerning the applicability of the Vienna Convention to this type of facilities: 1. If a reprocessing facility is being operated exclusively or partially for reprocessing of irradiated nuclear fuel for defence purposes, it does not fall under the liability régime created under the Convention (see above). 2. If a reprocessing facility is being operated for civilian purposes, the liability régime created under the Convention is applicable also in a case, irradiated nuclear fuel being reprocessed originates from a third country. In this respect, it is worth mentioning that the Joint Convention explicitly reaffirmed the rights of Contracting Parties to “ export its spent fuel for reprocessing” and to “ return, or provide for the return of, radioactive waste and other products resulting from reprocessing operations to the State of origin .” 53 From the point of view of the Vienna Convention, the fact that irradiated nuclear fuel being reprocessed in the facility originates from a third country, which is not Contracting Party to the Convention, has no direct impact for the liability obligations arising for the operator. The Convention establishes a liability regime for all nuclear installations situated in the territory of the Contracting Parties, irrespective of the origin of nuclear material being processed or reprocessed there. 54 Having said that, we must also refer to a special provision, which in its consequences may be applicable to the liability of an operator of a reprocessing facility. Pursuant to this provision, 55 the operator shall not be liable under this Convention for nuclear damage to the means of transport upon which the nuclear material involved was at the time of the nuclear incident. Radioactive waste disposal facilities The Vienna Convention does not address directly those facilities, serving for final disposal of nuclear materials, in particular for final disposal of radioactive waste. In this respect, it may be interesting to add, that unlike the Vienna Convention, the Paris Convention 56 does 50 IAEA (ed.): Explanatory Texts (n 15), at pp. 7-8. 51 “Spent fuel” means nuclear fuel that has been irradiated and permanently removed from a reactor core (Art. 2 letter /n/). 52 OMAR, R., Le risque nucléaire: la régulation juridique des déchets radioactifs. Thèse de doctorat en Droit Public. Université de Nice – Sophia Antipolis, 1995, at pp. 145-146. 53 Art. 27, Par. 3, letters /iii/ – /iv/. 54 It is a matter of fact, that reprocessing of irradiated nuclear fuel in a third country is regularly being subject of bilateral agreements between the states concerned. The aim of these agreements is in particular to provide rules for delimitating responsibility for radioactive waste resulting from the reprocessing of the fuel in other country, that the country of origin. However, it will be incompatible with the rules laid down in the Vienna Convention to provide for exoneration of the operator of a reprocessing facility in the terms of reprocessing irradiated nuclear fuel by such bilateral agreement. 55 Art. IV, Par. 5, letter /b/. 56 The Paris Convention provides in its Art. 1, Par. a/, letter ii/, that a “nuclear installations” means “reactors other than those comprised in any means of transport; factories for the manufacture or processing of nuclear substances; factories for the separation of isotopes of nuclear fuel; factories for the reprocessing of irradiated

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