Strengthening of Nuclear Liability Demo

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 the effective and continuous presence of an operator liable. 48 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 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 for compensation directly from the State where the radioactive waste disposal facility is located. In 2004, the 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 the nuclear installations being decommissioned is very similar to the issue of radioactive waste disposal. 52 The Vienna Convention is silent with 46 The 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 , Paris, 55, 1995, pp. 17-27. 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 , Paris, 55, 1995, p. 20. 51 Explanatory Report, Paragraph 9. 52 See VIROLLE, J. Declassement des installations nucleaires au sens de la convention de Paris

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