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1 INTERNATIONAL NUCLEAR LIABILITY REGIME
1.1 The Vienna Convention on Civil Liability for Nuclear Damage
TheVienna Convention onCivil Liability forNuclearDamage of 1963 (hereinafter
the “Convention” or the “Vienna Convention”) contains some basic liability principles,
which differ considerably from the principles of the ordinary tort law:
1. Each nuclear installation
1
must have a person in charge:
the operator
. In the legal
framework of the Convention, the operator
2
is
“the person designated
3
or
recognised
4
as the operator of a nuclear installation by the State.”
The operator
of a nuclear installation is exclusively liable for nuclear damage.
5
No other
person may be held liable, and the operator cannot be held liable under
other legal provisions. Liability is legally channelled solely to the operator
of the nuclear installation. In relation to this, the Convention provides for
very limited liability relief. The operator will be exonerated from liability
only if he proves, for example, that the nuclear incident was directly due
to armed conflict, hostilities, civil war, insurrection or a grave natural disaster,
6
or that it resulted wholly or partly either from gross negligence of the victim of
from an act or omission of the victim with intent to cause harm.
7
2. As a
quid pro quo
for the very strict conditions of the operator’s liability,
the Installation State may limit the operator’s liability by the national
legislation. However, the Convention provides for a minimum possible
liability limit.
8
1
In relation to the term “nuclear installation”, the Vienna Convention uses the term “Installation
State”. This means any “Contracting Party within whose territory a nuclear installation is situated
or, if it is not situated within the territory of any State, the Contracting Party by which or under the
authority of which the nuclear installation is operated”
[Article I par. 1 letter d)].
2
Article I par. 1 letter c).
3
In this respect, the liability regime established by the Vienna Convention is being interconnected
with the national public law, regulating nuclear safety, in particular with the permit issued by the
competent authority in order to operate the installation. See IOIRYSH, A. I., SUPATAEVA, O. A.,
CHOPORNIAK, A. B.
Otvetstvennosti za iadernyi ushcherb
, Moskva
:
Nauka, 1993, p. 112.
4
Consequently, the liability regime established by the Vienna Convention would be applicable even
to those nuclear installations, being operated illegal on the territory of the Installation State.
5
The Convention provides (Article X) that the operator has a right of recourse only if this is expressly
provided for by a contract in writing, or – in the case a nuclear incident results from an act or omission
done with intent to cause damage – against the individual who has acted or omitted to act with such
intent.
6
Article IV par. 3.
7
Article IV par. 2.
8
The Convention provides (Article V par. 1 and 3) that the liability of the operator may be limited
by the Installation State to not less than US $ 5 million for any one nuclear incident. The US $