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THE VIENNA CONVENTION ON CIVIL LIABILITY FOR NUCLEAR DAMAGE …
energy was in its infancy, and there was little concern about activities at the back end
of the fuel cycle.
41
On the other hand, the Vienna Convention includes any
“facility where nuclear
material is stored, other than storage incidental to the carriage of such material”
42
under the
scope of the liability regime. Because the definition of “nuclear material”
43
also covers
radioactive products and waste,
44
the Convention has sometimes been interpreted
as applying to installations for the storage of radioactive waste without any further
precision. However, a study presented during the negotiation of the Amended Vienna
Convention made it clear that the issue needed more consideration.
45
It is a matter of
fact that the Convention is silent regarding what “storage” means. Facilities serving for
temporary storage of nuclear materials (in particular
interim
storage facilities for spent
nuclear fuel) are certainly covered by the liability
régime
created by the Convention.
However, the Convention does not directly address those facilities (
repositories
)
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, pursuant to the
1984 Decision of the NEA
46
Steering Committee, radioactive waste disposal facilities
are to be considered as “nuclear installations” within the meaning of the Paris
Convention
47
during their pre-closure phase only. Therefore, within the meaning
of the Paris Convention, each disposal facility 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 effective and continuous presence
of an operator liable.
48
Here the Paris Convention provides for no explicit answer
41
See MONTJOIE, M.
Droit international et gestion des d
échets radioactifs, Paris : L.G.D.J., at p. 273.
42
Where nuclear materials are stored only as an incidental part of their carriage – for example, on a railway
station platform – the facilities used for such storage will normally not be deemed to come within the
definition of nuclear installation because of the transitory and fortuitous nature of the storage.
43
“Nuclear material” means nuclear fuel, other than natural uranium and depleted uranium, capable of
producing energy by a self-sustaining chain process of nuclear fission outside a nuclear reactor, either
alone or in combination with some other material; and radioactive products or waste (Art. I, Par. 1
letter /h/).
44
“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/).
45
See IAEA (ed.):
The 1997 Vienna Convention on Civil Liability for Nuclear Damage and 1997 Convention
on Supplementary Compensation for Nuclear Damage – Explanatory Texts,
Vienna: IAEA, 2007, at p. 26.
46
OECD Nuclear Energy Agency.
47
The Paris Convention covers also those “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
(emphasis added) as the Steering Committee for Nuclear
Energy of the Organisation shall from time to time determine.”
48
See OECD (ed.): Problems raised by the application of the Convention nuclear third party liability to
radioactive waste repositories,
Nuclear Law Bulletin,
1995, pp. 17-27.