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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 the
radioactive waste disposed of.
49
One possibility envisaged
50
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.
In 2004, Contracting Parties to the Paris Convention adopted a Protocol to Amend
this international treaty (hereinafter: “the Protocol of 2004”). The Protocol of 2004 is
intended to amend the definition of “nuclear installation” of the Paris Convention so as
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.”
51
Installations in the process of being decommissioned
The issue with nuclear installations being decommissioned is very similar to the
issue of radioactive waste disposal.
52
The Vienna Convention is silent with regard to
those nuclear reactors in the phase of decommissioning. This issue has been faced by
the Installation States only very recently. Scientific literature tends to interpret the
applicable provisions in such a way that a facility remains covered by the liability
régime
of the Convention until the final removal of any nuclear materials.
53
This means that the
liability regime established under the Convention will be applicable to the operator of a
nuclear installation that has been shut down. During the process of decommissioning
liability will therefore rest upon the operator, which means that he will be obliged to
carry appropriate liability insurance up to the stipulated liability limit.
It may be interesting to add that the NEA Steering Committee explicitly agreed
in 1987 that the “provisions of the Paris Convention should be interpreted as covering
nuclear installations in the process of decommissioning.”
54
This decision, however,
did not reflect the fact that the reduced risk represented by the facility due to its
49
The approach applied to the Paris Convention could easily be applied to the liability system established
by the Vienna Convention also.
50
See OECD (ed.): Problems raised by the application of the Convention nuclear third party liability to
radioactive waste repositories,
Nuclear Law Bulletin,
1995, at p. 20.
51
Explanatory Report, Paragraph 9.
52
See VIROLLE, J. Declassement des installations nucleaires au sens de la convention de Paris sur la
responsibilite civile dans le domaine de l’ energie nucleaire et problemes de responsabilite et d’ assurance,
In OECD (ed.):
Nuclear Third Party Liability and Insurance
. Paris: OECD, 1985, at p. 303.
53
See KISSICH, S.
Internationales Atomhaftungsrecht.
Baden Baden: Nomos Verlag, 2004, at p. 141.
54
See OECD (ed.):
Paris Convention. Decisions, Recomendations, Interpretations.
Paris: OECD, 1990, at
p. 6.