The Vienna convention on civil liability for nuclear damage: past, evolution and perspectives

• Author: Jakub Handrlica - Marianna Novotná
• Position: Jakub Handrlica - associate professor of administrative law, Law Faculty, Charles University in Prague, Czech Republic, jakub.handrlica@prf.cuni.cz. Marianna Novotná - associate professor of civil law, Law Faculty, University in Trnava, Slovak Republic, marianna.novotna@gmail.com.
• Pages: 48-63

The Vienna convention on civil liability for nuclear damage:

past, evolution and perspectives

Associate professor Jakub HANDRLICA1

Associate professor Marianna NOVOTNÁ2

Abstract

Thearticle r emains the 55th anniversar y of the a doption of the Vienna Convention

on Civil Liability for Nuclear Damage in 1963. As an instrument of internationa l law adopted

to tackle the issues of liability and compensation of damages arising from incidents in nuclear

installation s, the Vienna Convention currently pr ovides for lia bilityfra mework in

40 Contra cting Parties (Insta llation States) worldwide, establishing – inter alia – a lia bility

framework covering most States of the former Easter n bloc. The pur pose of the work is to

ana lyse developments of the Vienna Convention, especially its gra dual a cceptance among

the international community of States in the la st decad es. Fur ther, the article points out

further developments in the field of nuclear liability, in par ticular the a doption of the Joint

Protoco l, which established a virtual bridge with a nother liability regime, provided in the

States of Western Europe by the P aris Convention. Also, the article dea ls with the Protocol

of 1997, adopted in order to strengthen the liability framework esta blished by the Vienna

Convention. Fa cing the developments of the last 55 years, the Vienna Convention is to be

considered as a successful internationa l trea ty. It was able to attr act the executives of several

Central and Easter n European Sta tes, many of which represent major nuclear countries of

the region. Fur ther, the specific principles, esta blished by the Vienna Convention, have been

accepted as pilla rs of the legal framework of the peaceful uses of nuclear ener gy. At last, but

not at lea st, the Vienna Convention repr esents an instrument, being able to connect this

region in the future with other regions, intending for future development of nuclear industry.

Keywords: internationa l nuclear law, nuclear lia bility, nuclear insur ance, nuclear damages,

exclusive liability, jurisdiction, nuclear insta llations.

JEL Classification: K23, K32

1. Introduction

55 years ago, on 21 May 1963, the Vienna Convention on Civil Liability for

Nuclear Damage (thereinafter “the Vienna Convention”or “the Convention”)3 was

adopted by the States4 participating at the International Conference on Civil Liability

1 Jakub Handrlica – associate professor of administrative law, Law Faculty, Charles University in

Prague, Czech Republic, jakub.handrlica@prf.cuni.cz.

2 M arianna Novotná – associate professor of civil law, Law Faculty, University in Trnava, Slovak

Republic, marianna.novotna@gmail.com.

3 The Vienna Convention on Civil Liability for Nuclear Damage (adopted 2 1 May 1963, entered into

force 12 November 1977), INFCIRC/500.

4 Argentina, Belarussian Soviet Socialistic Republic, Chile, Colombia, Cuba, Egypt, the Socialist

Federal Republic o f Yugoslavia, the State of Israel, Lebanon, Morocco, Philippines, Spain, USSR

and the United Kingdom.

Juridical Tribune Volume 8, Special Issue, October 2018 49

for Nuclear Damage5 under the auspices of the International Atomic Energy Agency

(thereinafter “the IAEA”) in order to address the risks arising from peaceful uses of

nuclear energy.6 Its goal was to establish a nuclear liability framework applicable

worldwide.7 The Vienna Convention was opened for signature for the States

represented at the International Conference and it had to enter into force three months

after the date of deposit of the fifth instrument of ratification to the Director General

of the IAEA.8 Consequently, it entered into force on 12 November 1977, after being

ratified by Argentina, Cuba, Egypt, the Socialist Federal Republic of Yugoslavia and

Philippines.9 In the following decades, a number of other (both nuclear10 and non-

nuclear) States either ratified (Chile, Lebanon), or acceded (Bolivia, Brazil,

Cameroon, Jordan, Mauritius, Mexico, Niger, Nigeria, Peru, Saudi Arabia, Saint

Vincent and Grenadines, Senegal, Trinidad and Tobago, Uruguay).11

While the Union of Soviet Socialistic Republics (together with the

Belarussian Soviet Socialistic Republic) participated at the International Conference

on Civil Liability for Nuclear Damage, it strictly opposed the principles provided by

the newly established liability regime (in particular the principle of channelling of

liability to the operator, rather to the State). Consequently, neither of the States of

the former Eastern bloc (with the salient exception of the above-mentioned

Yugoslavia12) acceded to this convention until the early 1990s. They did so only after

5 29 April – 19 May 1963.

6 K. Wolff, The Vienna Internationa l Convention on Civil Liability for Nuclear Damage , [in] Nuclear

liability, progress in nuclea r energy, ed. James Weinstein, Pergamon Press, Oxford, 1966, pp. 1-22.

7 In 1960, the Convention on Third Party Liability in the Field of Nuclear Energy (thereinafter “the

Paris Convention”) was adopted under the auspices of the European Nuclear Energy Agency (ENEA)

to establish a regional liability framework in the Western Europe. Consequently, it was later ratified

by Belgium, Denmark, Finland, France, Federal Republic of Germany, Greece, Italy, Netherlands,

Norway, Portugal, Spain, Sweden, Turkey and th e United Kingdom. In entered into force in 1 968.

Further, in 1962, the Convention on the Liability of Operators of Nuclear Ships was adopted und er

the auspices of the International Maritime Organisation (IMO) in order to tackle the liability issues

arising from the operation of nuclear propelled maritime vessels. However, this Convention has never

been ratified by the required number of the States and consequently, did never entered into force.

8 Vienna Convention, Article XXIII.

9 At that time, only Argentina was operating a nuclear installation in its territory. However, both Egypt,

Cuba, Philippines and Yugoslavia had some nuclear ambitions, which were successful on ly in the

latter case.

10 I.e. States operating nuclear installations covered by the liability regime as established by the Vienna

Convention in their territories.

11 While participating at the International Conference on Civil Liability for Nuclear Damage, the State

of Israel has never ratified the Vienna Convention and remains to be out of the nuclear liability

framework established. Also, Spain and the United Kingdom did originally participate in the

International Conference. However, they did ratify the Paris Convention afterwards. Due to the fact,

a parallel participation in bo th the Vienna and Paris Conventions has been regarded as impossible,

they have never ratified the Vienna Convention. See M. Lagorce, Étude comparative des conventions

O.C.D.E. et A.I.E.A. sur la responsabilité civile dans le domaine de l´ énergie, “Aspects de droit de

l´ enérgie atomique”, 1/1965, pp. 93-102.

12 The Socialist Federal Republic of Yugoslavia had signed and ratified the Vienna Convention on 21

May 1963 and 12 August 1977, respectively. Bosna and Hercegovina, Croatia, Montenegro, Serbia

and the Republic of Macedonia succeeded to be Contracting Parties to the Convention. Slovenia did

originally also succeed, but had afterwards terminated the Vienna Convention and acceded to the