Nuclear technologies and the international liability framework of the Vienna Convention on Civil liability for nuclear damage: legal problems revisited
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Вестник Омского университета. Серия «Право». 2016. № 1 (46). С. 113−120.
ЯДЕРНЫЕ ТЕХНОЛОГИИ И МЕЖДУНАРОДНАЯ ОТВЕТСТВЕННОСТЬ В РАМКАХ ВЕНСКОЙ КОНВЕНЦИИ О ГРАЖДАНСКОЙ ОТВЕТСТВЕННОСТИ ЗА ЯДЕРНЫЙ УЩЕРБ: ПРАВОВЫЕ ПРОБЛЕМЫ
NUCLEAR TECHNOLOGIES AND THE INTERNATIONAL LIABILITY FRAMEWORK OF THE VIENNA CONVENTION ON CIVIL LIABILITY FOR NUCLEAR DAMAGE:
LEGAL PROBLEMS REVISITED
Я. ХЭНДРЛИКА (JA. HANDRLICA)
Исследуются ставшие в последнее время актуальными вопросы утилизации радиоактивных отходов, вывода из эксплуатации ядерных установок и запуска новых ядерных технологий (например, плавучие атомные электростанции, ядерное деление
Ключевые слова: ответственность за ядерный ущерб перед третьими лицами- ядерные установки- ядерный ущерб- ядерный инцидент- Венская конвенция о гражданской ответственности за ядерный ущерб 1963 г.- Протокол о внесении поправок в Венскую конвенцию о гражданской ответственности за ядерный ущерб 1997 г.- ядерные самоходные суда- ядерные космические корабли- термоядерная реакция- захоронение радиоактивных отходов- вывод из эксплуатации атомных электростанций- оборона ядерных установок.
Problems are arising from disposal of radioactive waste, decommissioning of nuclear installations and also from launching of new nuclear technologies (e.g. floating nuclear power plants, nuclear fission etc.) raised again the questions concerning applicability of the liability regime of Vienna Convention on various types of technologies. This contribution intents to deal with these issues in the light of existing scientific literature and also in the light of the developments in other liability frameworks.
Key words: Nuclear Third Party Liability- Nuclear installations- Nuclear damage- Nuclear incident- Vienna Convention on Civil Liability for Nuclear Damage of 1963- Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage of 1997- nuclear propelled vessels- nuclear space ships- nuclear fussion- radioactive waste disposal facilities- decommissioning of nuclear power plants- defence nuclear installations.
The Vienna Convention on Civil Liability for Nuclear Damage of 1963 (thereinafter «the Convention» or «the Vienna Convention») contains some basic liability principles, which differ considerably from the principles of the ordinary tort law:
Each nuclear installation  must have a person in charge: the operator. In the legal framework of the Convention, the operator  is «the person designated  or recognised  as the operator of a nuclear installation by the state». The operator of a nuclear installation is exclusively liable for nuclear damage . No other person may be held liable, and the operator cannot be held liable under other legal provisions.
© Хэндрлика Я., 2016
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 , 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 .
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 .
Further, the Convention requires the operator to maintain mandatory insurance or to provide other financial securities covering its liability for nuclear damage in such amounts, of such types and in such terms, as the Installation State specifies.
At the same time, the Convention provides that courts of the Installation State where the nuclear incident occurred will have exclusive jurisdiction over all actions brought for damages caused by a nuclear incident occurring in their territory . In a case where nuclear material in transport causes damage within the territory of an Installation State, the court where the nuclear material was situated at the time of damage will be exclusively competent.
Most currently, the provisions of the Convention do establish basic nuclear liability principles in 40 states worldwide . In practical terms, the application of the nuclear liability regime created by the Convention will be triggered if a nuclear installation causes a nuclear incident. Consequently, the terms '-nuclear installation'- and '-nuclear incident form the core of the international regime. Article I of the Convention defines the term '-nuclear incident as «any occurrence or succession of occurrences having the same origin which causes damage» . However, the nuclear third party liability regime of the Convention is applicable only to those damages, which «arises out of or results from the radioactive properties or a combination of radioactive properties with toxic, explosive or other hazardous properties of nuclear fuel or radioactive products or waste in, or of nuclear material coming from, originating in, or sent to, a nuclear installation» .
Further, the Convention defines the term «nuclear installation» as «any nuclear reactor other than one with which a means of sea or air transport is equipped for use as a source of power, whether for propulsion thereof or for any other purpose- any factory using nuclear fuel  for the production of nuclear material , or any factory for the processing of nuclear material, including any factory for the re-processing of irradiated nuclear fuel- and any facility where nuclear material is stored, other than storage incidental to the carriage of such material». Consequently, one of the key issues of the nuclear liability is to identify those facilities, covered by the special regime created by the Convention.
It is a matter of fact, that since the adoption of the Convention, this issue has been subject of various academic discussions . Unlike the Paris Convention on Nuclear Third Party Liability of 1960 (thereinafter «the Paris Convention») , the Vienna Convention does not envisage the inclusion of other nuclear installations by a decision taken by a competent international body . The absence of a provision to this effect may be seen as precluding the possibility of taking into account recent or future developments and covering additional types of installations which may involve risks of a considerable magnitude, such as radioactive waste disposal facilities, installations in the process of being decommissioned or other types of nuclear installations.
Further, in order to strengthen the liability framework established by the Vienna Convention, several Contracting Parties signed  the Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage in 1997. The Vienna Convention, as Amended by the Protocol of 1997 (thereinafter «the Amended Convention» or «the Amended Vienna Convention») entered into force in 2003. However, the Amended Convention hasn'-t been ratified by all Contracting Parties of the Convention until now. Consequently, the Amended Vienna Convention is currently valid in those states which already have deposited theirs instruments of ratification , while the in other states, the (original version) of the Vienna Convention remains in force.
In relation to the definition of a «nuclear installation», the Amended Vienna Convention contains a new provision , 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».
This article aims to deal with the question, which nuclear technologies do fall under the scope of application of the Convention (Amended Convention respectively). In particular, this article aims to deal with those technologies, which have become more important for nuclear sector during the last few decades (in particular radioactive waste disposal facilities and installations in the process of being decommissioned). At last but not at least, attention will
be paid also to launch of new nuclear technologies, which have been discussed most recently.
The Convention and Nuclear Installations: Application Problems Revisited
Any nuclear reactor other than one with which a means of sea or air transport is equipped for use as a source of power is to be considered as «nuclear installation» and therefore falls under the scope of the Vienna Convention. Convention defines  the term «nuclear installation» as «any structure containing nuclear fuel  in such an arrangement that a self-sustaining chain process of nuclear fission can occur therein without an additional source of neutrons». Consequently, both nuclear reactors used for the purposes of electricity production (in nuclear power plants) and reactors used for experimental, scientific or educational purposes (in research centres, universities etc.) are to be covered by the liability regime of the Convention.
The Convention relates exclusively to land based nuclear installations, and expressly excludes from its definition of «nuclear installation» any reactor «with which a means of sea or air transport is equipped for use as a source of power, whether for propulsion thereof or for any other purpose». Consequently, nuclear reactors generating power for ships, submarines, airplanes, or space ships  do not fall under the scope of the Vienna Convention. However, in contrast to the definition  provided in the Paris Convention, the Vienna Convention did not exclude those nuclear reactors, generating power for terrestrial vehicles .
There have been several persuading arguments against inclusion of these technologies into the liability framework of the Vienna Convention. In particular, it was obvious that, while land based reactors might easily mitigate possible dangers by locating them far from populated areas, nuclear powered vessels were designed to sail into harbors. Consequently, while the installation state was expected to appropriately compensate a nuclear incident created by its land based reactor (situated in its territory), the state licensing the vessel would be not under such intermediate pressure where the incident occurs in a distant harbor, where the nuclear-powered ship bearing its flag is anchored . Additionally, there were several issues considered spe-
cific to matters related to nuclear powered vessels: A very important issue was whether the rules would be common for nuclear powered merchant ships and warships with nuclear propulsion, while the latter presented the majority of nuclear powered vessels at the time. Furthermore, there was a question whether the legal framework would contain only rules applicable for operation of nuclear powered vessels on the High Seas, or also govern issues of their entry to the ports of other than licensing states. Therefore, matters of nuclear liability for damages incurred by the operation of nuclear powered vessels were reserved for a specialized international treaty . However, this special liability convention has never entered into force and consequently, nuclear powered vessels remain to be excluded from the scope of international liability instruments until today .
With regard to the application of the Vienna Convention on nuclear reactors with which means of sea transport are equipped, the project of a floating nuclear power plant must be mentioned . A floating nuclear power plant is a non-self-propelled vessel, carrying two naval propulsion reactors, together providing up to 70 MW of electricity or 300 MW of heat, enough for a city with a population of 200,000 people. It could also be modified as a desalination plant producing 240,000 cubic meters of fresh water a day. Basically, the floating nuclear power plants are planned to be used mainly in the Russian Arctic . According to information published by the Rosatom State Atomic Energy Corporation, several states have shown interest in hiring such a device . However, the Convention does not apply to these technologies . Therefore, the liability framework of the Vienna Convention will not cover liability cases, arising from use of these nuclear technologies. Consequently, a need for special bilateral liability agreements will arise in the case, floating nuclear power plants will be hired by other countries and used in theirs national waters .
Due to the fact, the fathers of the Vienna Convention restricted its applicability solely on those installations «containing nuclear fuel in such an arrangement that a self-sustaining chain process of nuclear fission can occur therein without an additional source of neutrons» (emphasis added), the liability regime of the Convention will be not applicable on any installa-
tions using the processes of nuclear fusion . Consequently, in the case of future positive developments on this field, liability issues in this regard must be regulated by either multilateral, or bilateral legal instruments 
At last but not at least, there are nuclear reactors operated for the defence purposes. In this respect, the Preamble of the Vienna Convention states, that one of reasons for concluding the Convention was «the desirability of establishing some minimum standards to provide financial protection against damage resulting from certain peaceful uses of nuclear energy»  (emphasis added). However, it is no further indication in the Convention  as to whether or not it also applies to military facilities , nor was the question discussed during the diplomatic conference which adopted the Convention . However, the Amended Vienna Convention clarifies the situation with respect to these installations stating, that this convention does not apply to any installations operated for non-peaceful purposes .
Radioactive waste disposal facilities
The Vienna Convention did not specifically include radioactive waste disposal facilities under «nuclear installations». When the Convention was drafted, the question of hazards arising from the radioactive waste disposal was not yet fully understood. The lack of provisions on radioactive waste disposal in the Convention is due to the fact, that when the Convention was drafted, the development of nuclear energy was in its infancy, and there was little concern about activities at the back end of the fuel cycle .
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»  under the scope of the liability regime. Because the definition of «nuclear material»  covers also radioactive products and waste , 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 . 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 the spent nuclear
fuel) are certainly covered by the liability regime created by the Convention.
However, the Convention does not address directly 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  Steering Committee, radioactive waste disposal facilities are to be considered as «nuclear installations» within the meaning of the Paris Convention  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 . 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 . One possibility envisaged  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 (thereinafter: «the Protocol of 2004»). The Protocol of 2004 is intended to amend the definition of & quot-nuclear installation& quot- 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 & quot-nuclear installations& quot- in their post-closure phase as well» .
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 . The Vienna Convention is silent with regard to the nuclear reactors, being 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 the way, that a facility remains to be covered by the liability regime of the Convention until the final removal of any nuclear materials . 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 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» . This decision, however, did not reflect the fact that the reduced risk represented by the facility due to its shutdown could or should have a mitigating effect upon the extent of mandatory financial liability limit . For that reason the Steering Committee decided in 1990, that a Contracting Party may cease to apply the Paris Convention to a nuclear installation being decommissioned, provided that it must have permanently  ceased operation, be completely defueled and remain under control of the competent national authority, which should ensure maintenance of appropriate provisions for confinement of radioactivity, and, finally, provided that the specified criteria are satisfied . This means that the decision to exclude the facilities in the process of being decommissioned from the scope of the Paris Convention is left to the Contracting States, whereas the technical criteria for this option ensure that the risk presented by the relevant facility are minimised to the extent that continued application of the Convention is no longer warranted. Similar provisions on the possible exclusion of nuclear installations being decommissioned have been proposed in the original draft of the Amended Vienna Convention .
Mining and milling facilities
Not all facilities interconnected directly, or indirectly with nuclear sector, do fall under the Vienna Convention. Some facilities, as for exam-
ple those used for mining, milling and the physical concentration of uranium ores, do not involve high levels of radioactivity. Hence, these activities do not fall within the scope of the Convention. Factories for the manufacture or processing of natural or depleted uranium, facilities for the storage of natural or depleted uranium, and the transport of natural or depleted uranium, since the level of radioactivity is low and there are no criti-cality risks, are also excluded .
Low risk installations
Further, the Vienna Convention envisages the possibility of an Installation State to exclude any small quantities of nuclear material from the application of this Convention, provided that maximum limits for the exclusion of such quantities have been established by the Board of Governors of the International Atomic Energy Agency- and any exclusion by an Installation State is within such established limits. The maximum limits shall be reviewed periodically by the Board of Governors.
However, unlike the Paris Convention , the Vienna Convention does not envisage the possibility to exclude «low risk installations» from the scope of applicability of the Convention. In particular, this provision might be of importance for some types of research reactors, but also for some types of small nuclear reactors . Consequently, the Amended Vienna Convention contains a new provision , which allows such exclusion, provided that criteria for such exclusion have been established by the Board of Governors of the International Atomic Energy Agency.
Since the adoption of the Vienna Convention, the issue of its applicability on various types of nuclear installations has been matter of scientific discussions. When the Convention was drafted, the question of hazards arising from certain uses of nuclear materials was not yet fully understood. The lack of explicit provisions concerning these uses in the Convention is due to the fact, that when the Convention was drafted, the development of nuclear energy was in its infancy, and there was little concern about activities at the back end of the fuel cycle.
However, most recently, problems are arising from disposal of radioactive waste, decom-
missioning of nuclear installations and also from launching of new nuclear technologies (e.g. floating nuclear power plants, nuclear fission etc.) raised again the questions concerning applicability of the liability regime of this Convention on various types of technologies. In this respect, the Amended Vienna Convention strengthens existing legal framework and constitutes appropriate tool to cope with the challenges discussed in this contribution.
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» (Art. I, Par. 1, letter /d/).
2. Art. 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., ChoporniakA. B. Otvetstvennosti za iadernyi ushcherb. — M.: 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 (Art. 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. Art. IV, Par. 3.
7. Art. IV, Par. 2.
8. The Convention provides (Art. 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 $ referred to in this Convention is a unit of account equivalent to the value of the United States dollar in terms of gold on 29 April 1963, that is to say US $ 35 per one troy ounce of fine gold.
9. Art. XI, Par. 1.
10. Argentina, Armenia, Belarus, Bolivia, Bosna and Herzegovina, Brazil, Bulgaria, Cameroon, Chile, Croatia, Cuba, Czech Republic, Egypt, Estonia, Hungary, Jordan, Kazakhstan, Latvia, Lebanon, Lithuania, Mauritius, Mexico, Montenegro, Morocco, Niger, Nigeria, Peru, Philippines, Poland, Republic of Macedonia, Republic of Moldova, Romania, Russian Federation, Saint Vincent and
Grenada, Saudi Arabia, Senegal, Serbia, Slovakia, Ukraine and Uruguay.
11. Art. I, Par. 1, letter /l/.
12. Consequently, the nuclear liability regime created by the Convention will be not applicable to the damages, arising from a traffic accident that occurred at the site of an nuclear installation. Neither will it be applicable to the damages, arising from a work accident occurred in the course of maintaining works at the site. Similarly, damages arising from a fire in one of the administrative building at the site are not to be considered as «nuclear damages» pursuant to the Convention. However, if such a fire «arises out of or results from the radioactive properties», damages occurred are to be considered as «nuclear» in the sense of the Convention.
13. «Nuclear fuel» means any material which is capable of producing energy by a self-sustaining chain process of nuclear fission (Art. I, Par. 1 letter /f/).
14. «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/).
15. See: Wolff K. The Vienna International Convention on Civil Liability for Nuclear Damage // Weinstein J. (ed.) Nuclear liability, progress in nuclear energy. — Series X, vol. 4. — Oxford: Pergamon Press, 1966. — P. 1−22.
16. The Paris Convention on Nuclear Third Party Liability of 1960 was adopted under the auspices of the OECD Nuclear Energy Agency and covers most Western European countries (Belgium, Denmark, Finland, France, Germany, Greece, Italy, Netherlands, Norway, Portugal, Slovenia, Spain, Sweden, Switzerland, Turkey and the United Kingdom).
17. The Paris Convention provides in its Art. 1, Par. a/, letter ii/, that a «nuclear installations» means «reactors other than those comprised in any means of transport- factories for the manufacture or processing of nuclear substances- factories for the separation of isotopes of nuclear fuel- factories for the reprocessing of irradiated 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 ma-
terial is held, be treated as a single nuclear installation».
18. Argentina, Belarus, Czech Republic, Hungary, Indonesia, Italy, Latvia, Lebanon, Lithuania, Morocco, Peru, Philippines, Poland, Romania and Ukraine.
19. Argentina, Belarus, Bosnia and Herzegovina, Jordan, Kazakhstan, Latvia, Montenegro, Morocco, Poland, Romania, Saudi Arabia and United Arab Emirates.
20. Art. I, Par. 1 letter /j/, Section /iv/.
21. Art. I, Par. 1 letter /i/.
22. «Nuclear fuel» means «any material which is capable of producing energy by a self-sustaining chain process of nuclear fission» (Art. I, Par. 1, letter /f/).
23. See: Reye S. Extension of the Technical Scope of the Paris and Vienna Conventions: Fusion Reactors and Reactors in Means of Transport // OECD (ed.) Nuclear Accidents — Liabilities and Guarantees. — Paris: OECD, 1993. — P. 248−252.
24. «Nuclear installation» means «reactors other than those comprised in any means of transport- factories for the manufacture or processing of nuclear substances- factories for the separation of isotopes of nuclear fuel- factories for the reprocessing of irradiated 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».
25. The reason was the research project, ongoing to the date of the Conventions adoption, dealing with the use of nuclear energy as means of transport for terrestrial rescue vehicles. However, this the outcomes of this project have never been applied in the reality. See: Kissich S. Internationales Atomhaftungsrecht. — Baden Baden: Nomos Verlag, 2004. — P. 141−142.
26. See: Seaver R. The Impact of Nuclear Propulsion of Ships on Admiralty and Shipping Law // Atomic Energy Law Journal. — 1960. — P. 303.
27. The Brussels Convention on the Liability of Operators of Nuclear Ships of 1962.
28. A proposal to include the nuclear reactors generating power for vessels and airplanes was made during the negotiation of the Amended Vienna Convention. But while several delegations supported the proposal, a number of other delegations objected to it. In particular, they noted, that there were no civilian nuclear powered vessels,
with the exception of a few nuclear ice-breakers. In view of the difference in opinion, it was decided not to include these nuclear technologies under the scope of the Amended Convention.
29. The project of Russian floating nuclear power stations started in early 2000s. In 2000, the Rosatom State Atomic Energy Corporation chose Severodvinsk in Arkhangelsk Oblast as the place for building the first floating power generating station. Construction of the first floating nuclear power station, «Akademik Lomonosov», started on 15 April 2007 at the Sevmash SubmarineBuilding Plant in Severodvinsk. However, in August 2008 construction works were transferred to the Baltic Shipyard in Saint Petersburg, which is also responsible for the construction of the next vessels. «Akademik Lomonosov», was launched on 1 July 2010, at a cost of 6 billion rubles (232 million US $).
30. Five of these will be used by Gazprom for offshore oil and gas field development and for operations on the Kola and Yamal peninsulas.
31. Including China, Indonesia, Malaysia, Algeria, Namibia, Cape Verde and Argentina.
32. The Convention does not apply to any reactor «with which a means of sea … transport is equipped for use as a source of power, whether for propulsion thereof or for any other purpose» (emphasis added).
33. See: Tscherning R. Transportable Nuclear Power Plants — An Update on Regulatory Responses in International Nuclear Law // Nuclear Law in the EU and Beyond. — Baden Baden: Nomos Verlag, 2014. — P. 198.
34. See: Ioirysh A. I., Supataeva O. A., Chopor-niakA. B. Op. cit. — P. 126−127.
35. It may be interesting to mention, that during the drafting of the Amended Vienna Convention, the issue of potential radiological risks that might be posed by fusion reactors was discussed. However, at the end, the delegations decided that it was «premature to consider coverage of future fusion installations by the third party liability regime». 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. — P. 26.
36. Also the Paris Convention restricts its applicability of fission reactors, when defining (in Art. 1 Par. A/ letter /iii/) the «nuclear fuel» as «fission-able material (emphasis added) in the form of uranium metal, alloy, or chemical compound (including natural uranium), plutonium metal, alloy, or chemical compound, and such other fissionable material as the Steering Committee shall from time to time determine».
37. In this respect, the situation is very similar to the framework established by the Paris Convention. The Preamble of this Convention states, that one
of the reasons of its concluding was «ensuring adequate and equitable compensation for persons who suffer damage caused by nuclear incidents whilst taking the necessary steps to ensure that the development of the production and uses of nuclear energy for peaceful purposes is not thereby hindered».
38. See: Wolff K. Op. cit. — P. 18.
39. See: IAEA (ed.). The 1997 Vienna Convention on Civil Liability for Nuclear Damage and 1997 Convention on Supplementary Compensation for Nuclear Damage — Explanatory Texts. — P. 27.
40. Art. I B.
41. See: Montjoie M. Droit international et gestion des dechets radioactifs. — Paris: L.G.D.J. -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. — P. 26.
46. OECD Nuclear Energy Agency.
47. The Paris Convention covers also those «facili-ties 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. — P. 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. — 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 // OECD (ed.). Nuclear Third Party Liability and Insurance. — Paris: OECD, 1985. — P. 303.
53. See: Kissich S. Op. cit. — P. 141.
54. See: OECD (ed.). Paris Convention. Decisions, Recomendations, Interpretations. — Paris: OECD, 1990. — P. 6.
55. See: Horbach N., Haneburg E. Legal Aspects of the Decommissioning of Nuclear Facilities: A Comparative View // Nuclear Law Bulletin. -1996. — P. 39.
56. This moment represents another point, where 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 phase out the installation. See: Ioirysh A. I., Supataeva O. A., Choporniak A. B. Op. cit. — P. 112.
57. See: OECD (ed.). Paris Convention. Decisions, Recomendations, Interpretations. — P. 8 — Ibidem. Annex III Contracting States Authorised to Exclude Installations Being Decommissioned. -P. 22.
58. See: Horbach N., Haneburg E. Op. cit. — P. 39.
59. Similarly, risks which arise in respect of radioisotopes usable for any industrial, commercial, agricultural, medical, scientific or educational purposes are excluded from the scope of the Convention. Further, where materials, such as uranium salts, are used incidentally in various industrial activities not related to the nuclear industry, such usage does not bring the plant concerned within the scope of the Convention.
60. The Paris Convention provides in Art. 1 /b/, that the Steering Committee may, if in its view the small extent of the risks involved so warrants, exclude any nuclear installation, nuclear fuel, or nuclear substances from the application of this Convention.
61. See: Riley P. Institutional Challenges to Mini Nuclear Power Plants: A Way Forward // Nuclear Inter Jura 2009. — Toronto: INLA, 2009. -P. 153−162.
62. Art. I. Par. 2.