ALLOCATION OF NUCLEAR CIVIL LIABILITY DURING TRANSPORTATION OF
NUCLEAR MATERIALS UNDER DIFFERENT LEGAL REGIMES
BY ANDREY SHLYAKHTOV1
Abstract
Article describes allocation of nuclear civil liability during transportation of nuclear materials
under different legal regimes.
Use of nuclear energy is potentially dangerous and hazardous activity, therefore people, companies
and environment should be adequately protected against possible loss and injury.
In all countries in the world exist certain rules in civil law providing tortuous liability of a tortfeasor
in most cases based on its fault. However such rules cannot provide adequate protection against nuclear
damage due to its specific features, such as:
high level of danger;
possible transboundary damage;
latent consequences for victims (may become apparent after long period of time
from the date of incident).
In 1986 Chernobyl accident confirmed prior theoretical assessments that a nuclear accident might
cause damage of an extreme magnitude. The detrimental effects of such an accident do not stop at State
borders; they may extend into regions far beyond the territory of the accident State. There may be damage
to individuals, to property and to the environment in several States.2
Therefore civil liability for nuclear damage cannot be regulated by general tort law and needs
separate specific regulation. Due to potential transboundary damage such regulation should be based on
international rules. In this paper I will try to analyze existing international instruments in the field of
nuclear liability (Section 1), their common features and differences (Section 2), pros and cons for a global
nuclear liability regime and its future prospects (Section 3).
Currently several international conventions regarding nuclear liability exist both on international
(open to all States) and regional (open to certain group of States) level. Also some states which are major
players in the civil nuclear market either have not joined any international convention (China, Japan,
South Korea) or have joined international convention which is not in force (USA).
The following international instruments regarding nuclear liability are now in force:
Head of Legal Department, JSC “Techsnabexport”.
Stoiber, C., Baer, A., Pelzer, N., Tonhauser, W. (2003), Handbook on Nuclear Law, International Atomic Energy
Agency, Vienna, p.107.
1
2
1. The 1963 Vienna Convention on Civil Liability for Nuclear Damage3. Currently there are 39
contracting parties. In 1997 was adopted Protocol to Amend the 1963 Vienna Convention on
Civil Liability for Nuclear Damage4. Currently there are 11 contracting states.
2. The 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy, as
amended by the Additional Protocol of 1964 and by the Protocol of 19825 and by the Protocol
of 20046 (which is not yet in force). Currently there are 15 contracting parties.
3. The 1963 Brussels Supplementary Convention to the Paris Convention, amended by three
Protocols successively adopted in 1964, 1982 7 and 2004 8 (which is not yet in force).
Currently there are 12 contracting parties.
4. The 1988 Joint Protocol Relating to the Application of the Vienna Convention and the Paris
Convention9. Currently there are 27 contracting parties.
The 1997 Convention on Supplementary Compensation for Nuclear Damage10 is not yet in force.
The Convention, pursuant to Article XX.1, "shall come into force on the ninetieth day following the date
on which at least 5 States with a minimum of 400,000 units of installed nuclear capacity have deposited
an instrument referred to in Article XVIII". As of today only 4 states from 16 signatories have ratified it
(USA, Argentina, Morocco, Romania).
These Conventions are based on the civil law concept and share the following main principles:
1. Liability is channelled exclusively to the operators of the nuclear installations;
2. Liability of the operator is absolute, i.e. the operator is held liable irrespective of fault;
3. Liability is limited in amount. Under the Vienna Convention, it may be limited to not less
than US$ 5 million (value in gold on 29 April 1963), but an upper ceiling is not fixed.
The Paris Convention sets a maximum liability of 15 million SDR provided that the
installation State may provide for a greater or lesser amount but not below 5 million SDRs
taking into account the availability of insurance coverage. The Brussels Supplementary
Convention established additional funding beyond the amount available under the Paris
Convention up to a total of 300 million SDRs, consisting of contributions by the installation
State and contracting parties;
4. Liability is limited in time. Compensation rights are extinguished under both Conventions if
an action is not brought within ten years from the date of the nuclear incident. Longer periods
are permissible if, under the law of the installation State, the liability of the operator is
covered by financial security. National law may establish a shorter time limit, but not less
than two years (the Paris Convention) or three years(the Vienna Convention) from the date
the claimant knew or ought to have known of the damage and the operator liable;
5. The operator must maintain insurance of other financial security for an amount corresponding
to his liability; if such security is insufficient, the installation State is obliged to make up the
difference up to the limit of the operator´s liability;
6. Jurisdiction over actions lies exclusively with the courts of the Contracting Party in whose
territory the nuclear incident occurred;
7. Non-discrimination of victims on the grounds of nationality, domicile or residence.11
In this article we consider allocation of nuclear liability during transportation of nuclear materials
between countries which have common and different nuclear liability regimes.
3
http://www.iaea.org/Publications/Documents/Infcircs/1996/inf500.shtml
http://www.iaea.org/Publications/Documents/Infcircs/1998/infcirc566.pdf
5
http://www.oecd-nea.org/law/nlparis_conv.html
6
http://www.oecd-nea.org/law/paris_convention.pdf
7
http://www.oecd-nea.org/law/nlbrussels.html
8
http://www.oecd-nea.org/law/paris_convention.pdf
9
http://www.iaea.org/Publications/Documents/Infcircs/Others/inf402.shtml
10
http://www.iaea.org/Publications/Documents/Conventions/supcomp.html
11
http://www.iaea.org/Publications/Documents/Conventions/liability.html
4
From the tables below we can see that allocation of nuclear liability between operators from
countries which have different nuclear liability regime is impossible. In case of potential nuclear incident
it is unclear what legal regime will be applied and whether all victims will be satisfied.
From this analysis we can conclude that unification of legal regime of civil liability for nuclear
damage is currently the most important task for international nuclear law. Chernobyl incident leaded to
changes in Paris and Vienna conventions (increase of minimal limits of liability, extension of the term
damage to be compensated, etc.). We hope that Fukusima incident will give rise to new developments in
this sphere.
Scheme № 1
Transportation of nuclear material
From a state which is a party to Vienna Convention on Civil Liability for
Nuclear Damage of 21 May 1963 (Vienna Convention) to states neither
members of the Vienna Convention nor members of the Paris Convention
on Third Party Liability in the Field of Nuclear Energy of 29 July 1960
(Paris Convention)
(Scheme № 2)
Example of transferring state
Russia, Brazil,
Hungary, France,
United Kingdom,
Spain
Example of receiving state
USA, Japan,
South Africa
From a state neither member of the Vienna Convention
nor member of the Paris Convention to state which is a party to the Vienna
Convention or the Paris Convention (Scheme № 3)
USA, Japan,
South Africa
Russia, Brazil,
Hungary, France,
United Kingdom,
Spain
From a state which is a party to Vienna Convention to a state-member of
the Paris Convention (and vise versa)
(Scheme № 4)
Russia, Brazil,
Hungary, Slovakia,
Bulgaria, Romania
France, United
Kingdom, Belgium,
Finland, Spain
Between states-members of the Vienna Convention
(Scheme № 5)
Russia,Ukraine, Brazil, Hungary, Slovakia,
Bulgaria, Czech Republick, Romania
Between states-members of the Paris Convention
(Scheme № 6)
France, United Kingdom, Belgium, Finland,
Spain, Greece, Turkey, Italy
From states members of the Paris Convention and the Joint Protocol to
states members of Vienna Convention and Joint Protocol (and vice versa).
(Scheme № 7)
Ukraine, Hungary, Slovakia, Bulgaria, Czech
Republick, Sweden, Netherlands, Germany
Nuclear liability
during transportation of nuclear material from states members of the Vienna/Paris Convention
to states non-members of the Vienna/Paris Convention
Border of
receiving
state
Border of
transferring
state
Transferring operator of a state-member of the Vienna
Convention shall bear nuclear liability up to the moment the
nuclear material has been unloaded from means of transport
by which it has arrived in the territory of the receiving state.
Transferring operator of a state-member of Paris Convention
shall be liable up to the beginning of territorial waters of the
receiving state (unless otherwise provided by the national
legislation of such transferring state).
Receiving operator bears nuclear liability according to it’s
national legislation.
Transferring operator and receiving operator may not allocate
nuclear liability under the contract.
Transferring operator of a
state-member of the Paris
Convention is liable for
nuclear damage
Transferring operator of a
state-member of the
Vienna Convention is
liable for nuclear damage
Receiving operator is
liable for nuclear damage
Transferring operator of
state-member of the Vienna
Convention is liable up to
the moment when nuclear
material is unloaded at the
port of the receiving state
Receiving operator of a state
which is not a party to Vienna/
Paris Convention
Transferring operator of a state
which is a party to Vienna/Paris
Convention
Transferring operator statemember of the Paris
Convention is liable shall
bear nuclear liability up to
the border of receiving
state (including its territorial
waters)
The receiving operator
bears nuclear liability in
accordance with natianal
legislation; in most states
non-parties of the Vienna
Convention and Paris
Convention (e.g. USA,
Japan) receiving operator
bears nuclear liability from
the moment the vessel
loaded with nuclear
material cross the border of
territorial sea of the
receiving state.
Scheme № 2
Nuclear liability
during transportation of nuclear material from states non-members of the Vienna/Paris Convention to states-members to the Vienna/Paris Convention
Border of
receiving
state
Border of
transferring
state
Transferring operator bears nuclear liability according to it’s
national legislation (usually up to the end of territorial waters of
the transferring state).
Receiving operator of a state-member of the Vienna
Convention shall bear nuclear liability from the moment of
loading of nuclear material on board the vessel at the port of
loading of the transferring state.
Receiving operator of a
state-party to Vienna
Convention is liable for
nuclear damage
Receiving operator of a state-member of Paris Convention
shall be liable for nuclear damage from the end of territorial
waters of the transferring state (unless otherwise provided by
national legislation of such receiving state).
Receiving operator of a
state-party to Paris
Convention is liable for
nuclear damage
Transferring operator and receiving operator may not allocate
nuclear liability under the contract.
Transferring operator is
liable for nuclear damage
Transferring operator of a state
which is not a party to Vienna/
Paris Convention
Receiving operator of a
state-party to Vienna
Convention shall bear
nuclear liability from the
port of loading of the
transferring state.
Receiving operator of a
state-party to Paris
Convention shall bear
nuclear liability from the
end of territorial waters of
the transferring state (the
receiving operator shall not
bear nuclear liability within
the territory of transferring
states-non parties to Paris
Convention unless
otherwise provided by
national legislation of such
receiving state).
Transferring operator bears
nuclear liability in
accordance with national
legislation: usually within
the territory of the
transferring state including
territorial waters (e.g. USA,
Japan).
Receiving operator of a state
which is a party to Vienna/Paris
Convention
Scheme № 3
Nuclear liability
during transportation of nuclear material from states-members of Vienna Convention to states members of the Paris Convention (and vice versa)
Border of
receiving
state
Border of
transferring
state
Transferring operator of a state-party to Vienna Convention shall bear nuclear
liability up to the moment the nuclear material has been unloaded from means
of transport by which it has arrived in the territory of the receiving state.
Receiving operator of a state-member of Paris Convention shall be liable for
nuclear damage from the end of territorial waters of the transferring state
(unless otherwise provided by national legislation of such receiving state).
Transferring operator of a state-member of Paris Convention shall be liable up
to the beginning of territorial waters of the receiving state (unless otherwise
provided by the national legislation of such transferring state).
Receiving operator of a state-member of the Vienna Convention shall bear
nuclear liability from the moment of loading of nuclear material on board the
vessel at the port of loading of the transferring state.
Transferring operator and receiving operator may not allocate nuclear liability
under the contract.
Receiving operator of a
state-member of the
Vienna Convention is
liable for nuclear damage
Transferring operator of a
state-member of the Paris
Convention is liable for
nuclear damage
Receiving operator of a
state-member of the Paris
Convention is liable for
nuclear damage
Transferring operator of a
state-member of the
Vienna Convention is
liable for nuclear damage
Receiving operator of a state
which is a party to Vienna/Paris
Convention
Transferring operator of a state
which is a party to Vienna/Paris
Convention
Receiving
operator of
state-member
of the Vienna
Convention is
liable up to
the moment
when nuclear
material is
unloaded at
the port of the
receiving
state
Receiving
operator of a
state-party to
Paris
Convention
shall bear
nuclear
liability from
the end of
territorial
waters of the
transferring
state.
Transferring operator statemember of the Paris
Convention is liable shall
bear nuclear liability up to
the border of receiving
state (including its territorial
waters)
Transferring operator of
state-member of the Vienna
Convention is liable up to
the moment when nuclear
material is unloaded at the
port of the receiving state
Scheme № 4
Nuclear liability
during transportation of nuclear material between states-members of the Vienna Convention
Transferring operator of a state
which is a party to the Vienna
Convention
Border of
receiving
state
The contracting parties are free to allocate nuclear liability at their own
discretion (transfer of nuclear liability may occur at any point en route
such transportation).
Border of
transferring
state
Unless otherwise stipulated in the Contract the nuclear liability shall
pass from transferring operator to the receiving operator from the
moment the receiving operator has taken charge of the nuclear material.
As a general rule liability
transfers from the
transferring operator to the
receiving operator at the
moment the receiving
operator has taken charge
of the nuclear material
Receiving operator of a state
which is a party to Vienna
Convention
Scheme № 5
Nuclear liability
during transportation of nuclear material between states-members of the Paris Convention
Transferring operator of a state
which is a party to the Paris
Convention
Border of
receiving
state
The contracting parties are free to allocate nuclear liability at their own
discretion (transfer of nuclear liability may occur at any point en route
such transportation).
Border of
transferring
state
Unless otherwise stipulated in the Contract the nuclear liability shall
pass from transferring operator to the receiving operator from the
moment the receiving operator has taken charge of the nuclear material.
As a general rule liability
transfers from the
transferring operator to the
receiving operator at the
moment the receiving
operator has taken charge
of the nuclear material
Receiving operator of a state
which is a party to the Paris
Convention
Scheme № 6
Nuclear liability
during transportation of nuclear material from states-members of the Vienna Convention and Joint Protocol
to states-members of the Paris Convention and the Joint Protocol (and vice versa)
Transferring operator of a state
which is a party to the Vienna
Convention and the Joint Protocol
or the Paris Convention and the
Joint Protocol
Border of
receiving
state
The contracting parties are free to allocate nuclear liability at their own
discretion (transfer of nuclear liability may occur at any point en route
such transportation).
Border of
transferring
state
Unless otherwise stipulated in the Contract the nuclear liability shall
pass from transferring operator to the receiving operator from the
moment the receiving operator has taken charge of the nuclear material.
As a general rule liability
transfers from the
transferring operator to the
receiving operator at the
moment the receiving
operator has taken charge
of the nuclear material
Receiving operator of a state
which is a party to the Paris
Convention and the Joint Protocol
or the Vienna Convention and the
Joint Protocol
Scheme № 7