Implementing Total.IO

In order to qualify as “nuclear damage” and, therefore, be eligible for compensation under the international nuclear liability regime, all of the above-mentioned treaties require damage to arise out of, or result from, the radioactive properties — or a combination such properties with toxic, explosive or other hazardous properties — of nuclear fuel or radioactive products or waste in a nuclear installation, or of nuclear material coming from, originating in or sent to, such an installation¹². In other words, such damage must be causally linked to an emission of ionizing radiation occurring either inside a nuclear installation or in the course of transport of nuclear material to or from such an installation. The only exception, as noted in Section 10.4.4, is constituted by the costs of preventive measures which, under the post-Chernobyl treaties, can be compensated if causally linked to either an emission of ionizing radiation or “a grave and imminent threat” thereof¹³.

More specifically, there needs to be an emission of ionizing radiation from “nuclear fuel”¹⁴ or

“radioactive products or waste”¹⁵; in case of an incident in the course of transport, the emission must originate from “nuclear material”, but such material is defined as including both “nuclear

12 See: Article 1(a)(i) of the Paris Convention [1]; Article I.1(k) of both the 1963 Vienna Convention [2] and its 1997 revision [3]; Article I(f) of the CSC [5]); and Article 1(a)(vii) of the Paris Convention as revised by the 2004 Protocol [4]. Unlike the other treaties, which specify this aspect in their definition of “nuclear damage”, the Paris Convention as currently in force [1] refers to it in its definition of “nuclear incident”.

13 See: Article I(k) and (l) of the revised Vienna Convention [3]; Article I(f) and (i) of the CSC [5]); and Article 1(a)(vii) and (ix) of the Paris Convention as revised by the 2004 Protocol [4].

14 “Nuclear fuel” is defined as “any material which is capable of producing energy by a self-sustaining chain process of nuclear fission”: see Article I.1(f) of both the 1963 Vienna Convention [2] and its 1997 revision [3] and Article 1.1(a) of the Annex to the CSC [5]). The definition in Article 1(a)(viii) of the Paris Convention [1] is different but also refers to “fissionable material”.

15 “Radioactive products or waste” is defined as “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”: see Article I.1(g) of both the 1963 Vienna Convention [2] and its 1997 revision [3] and Article 1.1(e) of the Annex to the CSC [5]). The definition in Article 1(a)(iv) of the Paris Convention [1] is very similar.

fuel” and “radioactive products or waste”¹⁶. It results from the definitions of these terms and, in particular, of “radioactive products or waste” that damage caused by an emission of ionizing radiation from “radioisotopes which have reached the final stage of fabrication so as to be usable for any scientific, medical, agricultural, commercial or industrial purpose” is, in principle, not included within the concept of “nuclear damage”. The justification given for this exclusion is usually that the nuclear liability conventions provide for an exceptional regime whose scope is limited to risks of an exceptional character: for example, the Exposé des Motifs for the Paris Convention [9] states in general that “whenever risks, even those associated with nuclear activities, can properly be dealt with through existing legal processes, they are left outside the scope of the Convention” (paragraph 7) and adds, with specific reference to

‘radioactive sources’, that, “despite the rapidly increasing use of radioisotopes in many fields, which will require continual and careful observance of health protection precautions, there is little possibility of catastrophe” (paragraph 10). However, despite these general statements, a distinction must in fact be made depending on whether ‘radioactive sources’ are inside or outside a “nuclear installation”.

As regards radioactive sources inside a “nuclear installation”, namely a reactor or other nuclear-fuel-cycle-related facility¹⁷, the Paris Convention [1] covers damage caused by “ionizing radiations emitted by any source of radiation” inside such an installation (Article 1(a)(i)). The 1963 Vienna Convention [2] only covers such damage “if the law of the Installation State so provides” (Article I.1(k)(iii)), but both the Protocol to Amend the Vienna Convention [3]

(Article I.1(k) of the revised Vienna Convention) and the CSC [5] (Article I.(f)) are in line with the Paris Convention and cover such damage irrespective of the law of the Installation State.

Therefore, leaving aside the 1963 Vienna Convention, damage caused by an emission of ionizing radiation originating from a ‘radioactive source’ inside a “nuclear installation” is in fact covered by the nuclear liability regime. In contrast, damage caused by ‘radioactive sources’

outside a “nuclear installation”, i.e. in the course of transport or inside a facility that does not qualify as a “nuclear installation” (e.g., a hospital), is excluded from the definition of “nuclear damage” in all of the nuclear liability treaties and is, therefore, treated like any other kind of

‘non-nuclear damage’.

As a rule, ‘non-nuclear damage’ is outside the scope of the nuclear liability regime and its compensation is exclusively governed by the provisions of national torts law. The nuclear liability conventions do not in fact apply to damage other than “nuclear damage”, as defined:

therefore, whereas liability for “nuclear damage” is legally channelled by the conventions to the operator of a “nuclear installation”, to the exclusion of any other person who might otherwise be liable, any person might be held liable for ‘non-nuclear damage’ under domestic torts law; moreover, whereas the operator’s liability for “nuclear damage” under the conventions is “absolute”, i.e. it is a strict or objective liability not based on the operator’s fault or negligence, the liability of any person for ‘non-nuclear damage’ under domestic torts law is usually based on fault or negligence on the part of the tortfeasor. Finally, whereas the operator’s

16 “Nuclear material” is defined as “i) nuclear fuel, other than natural uranium and depleted uranium, capable of producing energy by a self-sustaining process of nuclear fission outside a nuclear reactor, either alone or in combination with some other material; and (ii) radioactive products or waste”:see Article I.1(h) of both the 1963 Vienna Convention [2] and its 1997 revision [3] and Article 1.1(c) of the Annex to the CSC [5]). The Paris Convention [1] uses the term “nuclear substances” instead of “nuclear material” but the definition of that term in Article 1(a)(iv) also includes “nuclear fuel” (other than natural uranium and other than depleted uranium) and radioactive products or waste”.

17 See the definition of “nuclear installation” in Article 1(a)(ii) of the Paris Convention [1]; Article I.1(j) of the 1963 Vienna Convention [2] and of its 1997 revision [3]; and Article 1.1(b) of the Annex to the CSC [5].

liability under the conventions must be covered by insurance, or other financial security, this is not necessarily the case for liability for ‘non-nuclear damage’ under domestic torts law.

There is, however, a minor exception to the clear-cut distinction between liability for “nuclear damage” under the conventions and liability for other kinds of damage under domestic torts law: in a situation where “both nuclear damage and damage other than nuclear damage have been caused by a “nuclear incident” or jointly by a nuclear incident and one or more other occurrences, damage other than “nuclear damage” will be deemed to be “nuclear damage” for the purposes of the conventions to the extent that it is “not reasonably separable” therefrom¹⁸. Such a situation may occur, for example, when both “nuclear material” and other radioactive material are on the same means of transport: in case of an incident causing radiation damage which cannot “reasonably” be traced to either the “nuclear material” or the other radioactive material which is being transported, the operator of the “nuclear installation” involved in the transport of the “nuclear material” will be liable for that radiation damage.

On the other hand, although the rule under the nuclear liability conventions is that no person other than the operator of a “nuclear installation” can be held liable for “nuclear damage”, in a situation such as the one just described where the distinction between “nuclear damage” and

‘non-nuclear damage’ cannot “reasonably” be applied in practice, the conventions do not exclude the possibility that “any person” may be held liable under domestic torts law for damage other than “nuclear damage”¹⁹. Another minor exception to the legal channelling of all liability for “nuclear damage” to the operator relates to “nuclear damage” in respect of which the operator is not liable under the international nuclear liability regime, i.e. certain kinds of property damage to which is referred to in Sections 10.2–10.4 above and all damage caused by incidents due to armed conflicts or similar events which exonerate the operator from liability:

the conventions do not exclude that “any individual” who acted with intent to cause damage may be held liable for such damage under general torts law²⁰.

Finally, another important aspect of the international nuclear liability regime is that it excludes the operator’s liability for “nuclear damage” under domestic torts law: just as liability for ‘non-nuclear damage’ is, in principle, exclusively governed by domestic torts law, liability for

“nuclear damage” is, in principle, exclusively governed by the international nuclear liability regime, and domestic torts law only applies to those aspects of nuclear liability in respect of which the treaties themselves give some discretion to national law. Article 6(c)(ii) of the Paris Convention [1] expressly provides that “the operator shall incur no liability outside this Convention for damage caused by a nuclear incident” and a similar provision is contained in Article 3.10 of the Annex to the CSC [5]; the absence of corresponding provisions in both the

18 See: Article IV.4 of the 1963 Vienna Convention [2] and its 1997 revision [3], and Article 3.4 of the Annex to the CSC [5]. Article 3(b) of the Paris Convention [1] refers instead to “damage caused jointly by a nuclear incident and by an incident other than a nuclear incident” but then adopts the same solution. The term “nuclear incident” is defined in Article I.1.(l) of the 1963 Vienna Convention [2] as “any occurrence or series of occurrences having the same origin which causes nuclear damage, and Article 1(a) of the Paris Convention [1] has a similar definition which is brought entirely in line with the 1963 Vienna Convention by the 2004 Protocol [4]. The corresponding definitions in Article I.1.(l) of the revised Vienna Convention [3] and in Article I(a) of the CSC [5] are identical except that they add, in respect of preventive measures only, the case where there is a “grave and imminent threat”

of nuclear damage: see Section 4.4 above.

19 Ibidem.

20 See: Article 6(c)(i)1 of the Paris Convention [1]; Article IV.7(a) of the 1963 Vienna Convention [2]; and Article IV.7 of the revised Vienna Convention [3]. There is no corresponding provision in the Annex to the CSC [5].

1963 Vienna Convention [2] and its Amending Protocol [3] should not lead to a different conclusion in respect thereof²¹.