CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ THE VIENNA CONVENTION ON CIVIL LIABILITY FOR NUCLEAR DAMAGE … envisage a potential inclusion of other nuclear installations by a decision taken by the OECD Steering Committee for Nuclear Energy. In relation to radioactive waste management, it must be mentioned, that by its decision of the 11 th of April 1984, 57 the Steering Committee approved applicability of the nuclear liability régime created under the Paris Convention also on operators of radioactive waste disposal facilities during the pre-closure phase. 58 In taking this decision the Steering Committee stressed that it did not wish to prejudge the question of the applicability of the Paris Convention to the post-closure phase. Therefore, within the meaning of the Paris Convention, each disposal facility being in the pre-closure phase must have an operator liable with financial coverage of his liability. The question raised at this stage is to determine, who in this system must ensure that there will be the effective and continuous presence of an operator liable. 59 Here, the Paris Convention provides for no explicit answer to this question, however, the very definition of a nuclear operator entails a specific obligation of a state to designate or recognise an operator for any nuclear installation. Consequently, it would be reasonable to consider by extension, that this provision also includes the obligation to ensure, that someone will always remain liable for radioactive waste disposal. 60 One possibility envisaged 61 is that this liability be transferred to the state or a public agency it has designated. In this scenario, victims would have no other recourse but to claim compensation directly from the state where the radioactive waste disposal facility is located. It is a matter of fact, that the Amended Vienna Convention contains a new provision, 62 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.” During its Fourth Meeting, held on the 7 th – 11 th of February 2005, the International Nuclear Liability Expert Group (INLEX) established by the IAEA discussed the scope of the existing definitions of “nuclear installation” in the various liability instruments and the possibility to expand the definition also vis-á-vis radioactive waste disposal facilities. In this regard, the Group recognised that the definition in the Amended Vienna Convention “provided the possibility for the Board of Governors to expand the definition of “nuclear installation” to include, for example, waste disposal facilities and installations in the process of decommissioning and nuclear fuel; facilities for the storage of nuclear substances other than storage incidental to the carriage of such substances; and such other installations in which there are nuclear fuel or radioactive products or waste as the Steering Committee for Nuclear Energy of the Organisation (hereinafter referred to as the “Steering Committee”) shall from time to time determine; any Contracting Party may determine that two or more nuclear installations of one operator which are located on the same site shall, together with any other premises on that site where radioactive material is held, be treated as a single nuclear installation.” 57 OECD/NEA (ed.) Paris Convention, Decisions, Interpretations, Recommendations, Paris: OECD/NEA, 1990, at p. 6. 58 The Decision states, that the “installations for the disposal of nuclear substances shall for the pre-closure phase, be considered as nuclear installations within the meaning of Article 1 (a) (ii) of the Paris Convention. The term “nuclear substances” was preferred to “radioactive waste” since the Paris Convention excludes nuclear fuel from the definition of “radioactive products or waste” in Article 1 (a) (iv). The term “nuclear substances” on the other hand covers nuclear fuel (apart from natural and depleted uranium) and radioactive products and waste.” 59 OECD/NEA (ed.): Problems raised (n 35), at pp. 17-27. 60 The approach applied to the Paris Convention could easily be applied to the liability system established by the Vienna Convention also. 61 OECD/NEA (ed.): Problems raised (n 35), at p. 20. 62 Art. I, Par. 1 letter /j/, Section /iv/.

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