A. Nuclear Safety: General problems.

The primary objective of nuclear safety is to protect individuals, society, and the environment from radiological hazards that may arise from nuclear power usage. Radiation protection and accident prevention and mitigation serve this primary objective, and are achieved by the defense in depth strategy [6]. The defense in depth concept is a key characteristic of both the design and operation of nuclear installation. With accident prevention as the number one safety priority, accounting for accident management strategies and effective off-site emergency plans is required to deal with potential accidents and consequences. We therefore maintain that it is vital to remove any viewpoint that nuclear accidents have externality or marginal benefits to anyone and the cost to the world-at- large is anything but marginal, insofar as even the smallest nuclear accident portends major radiological consequences.

Nuclear plant safety usually is assessed through the use of the analytical tool of probabilistic safety assessment (PSA) [23]. This methodology permits probability assessment of a wide range of potential mishaps. The strength of the PSA assessment model is that it draws attention to weak points in nuclear power plant design and operation and indicates changes which would lead to safety improvements. However, there are limitations to the PSA methodology which still require special attention.

Effective and safe operation of nuclear power plants requires a well developed safety culture, i.e. the personal dedication and accountability of all individuals involved [6, 22, 23]. Appropriate attitudes can be cultivated only if: the safety policy of the organization and all corporate and individual responsibilities are clearly defined; there is an adequate mechanism for implementing the policy and monitoring its effectiveness; and the policy and the management structure enable managers to demonstrate their commitment to safety culture. The responsibilities of governments, regulatory agencies, operators and advisory bodies must also be clearly defined and all parties must accept their responsibilities. Regulatory agencies must be able to act independently and be protected from undue external pressure.

Operational experience assumes the structured collection and analysis of operational data and the monitoring of performance indicators, i.e., indicators of the quality of operation, maintenance, staff performance and overall safety. The international exchange of such information is involved, but there still are problems related to the effectiveness of the collection process [6]. Along with the exchange of unevaluated data, the results of in-depth analyses must be distributed.

Although a comprehensive set of tools has been developed to make nuclear energy a safe technology, it is now time to focus on a wider use of these tools and an improvement of application procedures [35]. This includes more effective monitoring procedures and streamlined interpretation of what is a somewhat cumbersome general interpretation of the PSA results. Within this context, international collaboration must provide and expand areas of common understanding and resolving differences. Channels exist for the exchange of information on completed safety analyses [36]. But this exchange should be broadened through the establishment of a universal system for handling safety analysis findings.

There is a significant gap between public perceptions of the risk and benefits of nuclear power and the evidence obtained from technical and economic assessment [16, 23, 29]. There is even a lack of common understanding of such basic concepts as risk itself. It is important for the future of nuclear power that communications among regulators, operators, the scientific community, and public be improved.

The gradual establishment of bilateral technical relations and information exchange can ensure application of adequate safety criteria. However, the question remains to what extent binding standards and regulations can be applied across national boundaries.

The following problems concerning the fundamental principles for the safe use of nuclear energy need to be addressed first:

• improvement of safety standards and regulations: extension of the technical scope of application, and binding character in international scale;
• provision and development of systematic safety assessment throughout the operational life-time of nuclear installations;
• development of emergency planning requirements as a part of the defense in-depth concept;
• development of the system enabling information dissemination, information exchange and communication with political decision-makers and public.

For nuclear reactors the required high levels of operational safety are achieved and maintained by implementation of a coherent set of criteria, standards, and practices, integrated with continuous verification.

The analysis of operating experience and the feedback of the results are mechanisms for ensuring and enhancing through-life safety. However, there are significant differences between States as regards the extent to which these mechanisms are utilized [10, 23]. Improvement and harmonization of the feedback data handling are still needed. In this respect the IAEA and other international organizations should promote the exchange of information on the best ways of collecting, analyzing and using data on operating experience.

PSA can be particularly useful in assessing and managing safety related operations and changes. However, some potential users of PSA lack the necessary equipment reliability data and adequate training [6, 23]. At present the use of PSA at operating plants definitely requires the IAEA's assistance aimed at helping to achieve excellence in the use of PSA and to reduce the limitations associated with factors such as human errors, management effects and common mode failures.

The introduction of the concept of safety culture can help to reduce the frequency of human error by ensuring that corporate management and individuals are made aware of their safety responsibilities. However, methods of collecting, analyzing, and using human performance data need to be improved. In addition, there is a need for international cooperation in achieving a better understanding of the factors associated with human error.

Safe operation throughout the life of NPP behooves engineering support, particularly in order that management resolve problems associated with plant aging, fire, and external events, and the introduction of more sophisticated technologies. A detailed guidance on engineering support should be provided in this respect. International exchange visits organized by corresponding regulatory bodies must be increased.

As the present generation of nuclear power plants grows older, the impact of aging processes needs to be considered. It is important to understand the aging mechanisms that give rise to the degradation of safety significant components and structures. The IAEA should intensify its activities aimed at promoting the collation and systematization of information on the safety aspects of plant aging.

With regard to core damage prevention, there are significant differences between the situations in different states [30]. Generally, only countries with large nuclear programs develop and implement accident management strategies. International efforts should be directed towards ensuring that those strategies are available to all states requiring them. Independent reviews of the internal and external emergency plans of individual plants should be carried out.

Treatment of NPP built to earlier safety standards is also one of the serious problems [6]. The safety standards current in many countries may be significantly different from those applied to their operating plants when they were designed, and the extent of the differences may increase with time. All the plants may not fully match up to new concepts and standards but, through conservative design and excellence of maintenance, a demonstration of adequate safety is still possible. For a few older plants, however, the acceptability of the safety level is questionable and a solution must be found.

There is a growing need to demonstrate whether older operating plants are safe when judged by current safety standards. Unfortunately, adequate arrangements for keeping safety levels in line with rising safety standards do not exist in some countries with operating NPPs, and action is needed to rectify the situation [23]. A common international approach to the treatment of operating plants built to earlier standards should be considered. Though the national approaches differ in some respects, there is significant consensus regarding the need for a systematic review process. For instance, it is agreed that all plants should have levels of overall safety that are publically acceptable; operating plants should also comply with their original safety objectives where these are still valid; the safety standards of older plants should comply reasonably with current safety objectives; and there should be arrangements for assessing and monitoring the effects of aging.

There is a concern that, in the absence of a generally accepted and internationally agreed upon review process, some plants may not have plans submitted to review until there is an accident. On the other hand, if an adequately conceived review process were introduced, plants might be shut down prematurely [22]. With increasing economic pressures on operators to extend the operating life of their plants the need for an adequate safety review process is paramount.

As the procedures adopted in different countries for determining levels of plant safety are not equally acceptable, a unified approach is advisable. Its aim is to establish an internationally agreed review process that takes into account plant operating experience, physical plant state, safety and modification documentation, and the safety culture of the plant.

Due to the limitations of the assessment techniques applied when some older plants were built, the original safety analyses may not have comprehensively addressed issues such as natural phenomena, external hazards, and waste discharges. Guidance for carrying out updated assessments is required and the question of plant site acceptability needs to be reviewed.

Thus, at present, in the field of operating plants safety ensuring the following key issues require joint international efforts:

• design of the mechanisms promoting excellence in the safety performance of all NPPs;
• strengthening of the national commitment of states to the safe operation of NPPs;
• intergovernmental level actions aiming to enhance the safety of NPPs;
• increase of the role of international organizations as a major facilitating tools in the process of negotiations on NPPs' safety.

The quantity of radioactive waste requiring disposal is expected to increase as a result of a continuing expansion of nuclear power generation and decommissioning of NPP. The disposal of low-level waste is already managed on an industrial scale. However, current disposal programs for long-lived highly radioactive waste have not everywhere reached the stage of licensing of repository construction [6]. This is due in part to the gap in the belief level of specialists in current disposal technologies and the perception of the general public that radioactive waste disposal presents unacceptable hazards and environmental risks resulting in process of disposal site selection becoming the focal point of public opposition. The expert consensus is that feasible and safe options for disposal exist, yet this has not yet mitigated public fears.

From a regulatory perspective difficulties exist in formulating detailed, quantitative performance objectives and safety standards [23]. It is necessary for developers and regulators to discuss and resolve these issues at the national and international levels. Also adverse public reactions to proposals to the siting of repositories need to be addressed -- through improved communications and by making the public aware of the adequacy of such installations.

Consensus of the final disposal of radioactive waste can be reached only through international cooperation. The IAEA should work with member states and with other international organizations, providing a forum for discussion and resolution for technical and regulatory issues surrounding waste disposal. It should support, in particular, efforts to reach consensus on the application of radiation protection criteria over long-time scales. In addition, it should assist in validating safety assessment models, improving technology transfer and defining the safeguards requirements for nuclear material disposed.

The main problems regarding nuclear wastes disposal can currently be formulated as follows:

• development and implementation of a strategy for disposal of radioactive wastes;
• improvement of the international cooperation mechanism; determination of the role of international regulatory bodies, especially in their relation to implementing organizations;
• increase of the role of socioeconomic analysis in planning of nuclear wastes disposal.

The solution of nuclear safety problems at all levels includes: the elaboration of the nuclear safety principles, their implementation and verification. Research and development support requires an effective legal system of nuclear safety, established at both national and international levels. The International Convention on Nuclear Safety (1994, Vienna) elaborated and adopted within the framework of the IAEA was designed to serve as a basis for the development of this legal system. Therefore, now it is very important to initiate and develop application process in an appropriate way, trying to avoid possible conflicts, and bearing in mind the lessons learned from the development and implementation of the other international legal regimes.

Negotiating agreements for an international arena frequently may present a conflict between national interests of many countries. Thus, to ensure an effective and productive way of international negotiations it is very important to develop mutual understanding resulting in common approaches to a solving of major problems.

Since the beginning of the "nuclear age" the development of the nuclear technologies, along with defense programs, and the construction of the nuclear energy facilities was carried out in a limited number of countries, such as USA, USSR, France, Japan, the UK, all of which currently possess a significant nuclear energy potential, incomparable with that of the rest of the world [2]. Therefore it is very important to get these 'shareholder' countries to the full degree possible involved in the negotiation process on the most crucial issues of the nuclear energy use and regulation. At present these countries, representing the dominating share of nuclear energy production and possessing the most part of operating and being built nuclear power plants are still reluctant to make any binding commitments. Thus many of existing important international agreements on nuclear energy regulation impose restrictions and obligations practically only on developing countries, either possessing some nuclear technologies or non-nuclear at all, whose presence at the negotiation table results from these countries' non-proliferation commitments.

This different "weight" of countries in terms of their nuclear energy potential (See Chart 3) should definitely be taken in to consideration while analyzing the effectiveness of current international legal provisions overall safe nuclear energy use. In the conflict of "interests" resolution stage between participants in the negotiation process the international bodies are no more then just facilitating mechanism for negotiating agreements.

Points to consider here include: Why do major nuclear countries not become Parties, or have difficulties in becoming Parties to the most important agreements? In which points may their obligations under these agreements interfere with their national interests? These questions have not yet been resolved.

There are some problems inherent to the existing legal instruments. In brief it is important to mention as general problems the following:

1. Non-compliance with existing international laws:
   • withholding of important information and purposeful disinformation of competent international
   • organs [6, 16];
   • setting barriers to expert inspections of nuclear facilities and to "peer review" process [23, 31].
   
   
2. The non-binding nature of important international agreements. As mentioned in chapter 2, agreements adopted within the framework of the IAEA are recommendatory. Compliance with these regulations is formally required only if the country is receiving assistance from the IAEA. Some other international multilateral agreements, such as Euratom, or bilateral agreements have developed more strict regulations but these agreements are limited in scope.
   
   
3. The limited reality of the scope of agreements' application. As a result of current situation, nuclear energy use at present is most strictly regulated in countries possessing a modest nuclear potential and depending both on their nuclear industry development and on IAEA support, which differs in Western Europe, having somewhat developed its own mechanism of relevant legal provisions (Euratom, NEA/OECD).
   
   
4. The long period between adopting of agreements and their entering into force. Only after the Chornobyl nuclear accident, with very serious transboundary consequences, have the most important players on the international nuclear arena recognized that situations may require urgent measures and requires implementation of agreements on early notification and emergency assistance. Since then a period of ten years has passed. It is well known that a number of nuclear facilities do not meet necessary safety requirements (previously known disfunctions, wrong site chosen for the facility, etc.). One cannot imagine what scale accident would echo loud enough to redound favorably in the process of elaborating, negotiating, adopting, and implementing vigorously needed agreements. At present, for example, major nuclear countries are reluctant to take obligations under the already adopter by the IAEA Convention on Nuclear Safety because some of their nuclear installations will require supplementary upgrade and maintenance works [17, 30, 32]. Some other countries, mainly transitional economies of Eastern Europe, in turn are trying to gain profits from their possession of facilities, requiring urgent upgrade and maintenance and plan to wield this argument in international negotiations as long as possible [30, 31].

Some information about the existing international agreements regulating the use of nuclear energy is presented below in Table 1.

The International Convention on Nuclear Safety, which was opened for signature on September 20, 1994 might become the most important international legal instrument in the field of the safety of nuclear installations. Designed for worldwide application it formulates basic nuclear safety requirements as follows [17]:

• use of nuclear energy is safe, well regulated and environmentally sound;
• promotion of high level of nuclear safety worldwide;
• responsibility for nuclear safety rests with the State, having jurisdiction over a nuclear installation;
• provision of an effective nuclear safety culture;
• awareness of nuclear accidents being the potential for transboundary impacts;
• maintenance of the conventions adopted in 1979 and 1986;
• international cooperation for enhancement of nuclear safety through existing bilateral and multilateral mechanisms and the establishment of this incentive Convention;
• application of fundamental safety principles for nuclear installations, rather then detailed safety standards;
• development of international convention on the safety of the radioactive wastes management;
• technical work on the safety of other parts of the nuclear fuel cycle that will facilitate the development of current and future international instruments.

The Convention on Nuclear Safety imposes strict safety requirements on the operation of the nuclear installations [17]. These requirements concern both technical safety requirements, and the requirements for the national legislative and regulatory frameworks, assessment and verification procedures. Contracting convention parties shall ensure that all reasonably practicable improvements are made as a matter of urgency to upgrade the safety of nuclear installations. And if such upgrading cannot be achieved, plans should be implemented to shutdown the nuclear installation as soon as practically possible (Article 6). Each contracting party shall establish and maintain a legislative and regulatory framework to govern the safety of nuclear installations. This framework shall provide for the establishment of applicable national safety requirements and regulations; a system of licensing with regard to nuclear installations and prohibition of the operation of a nuclear installation without a license; a system of regulatory inspection and assessment of nuclear installations to ascertain compliance with applicable regulations and the terms of license; the enforcement of applicable regulations and of the terms of licenses, including suspension, modification and revocation (Article 7). Similar requirements apply also to assessment and verification (Article 14), emergency preparedness (Article 16), and operation of nuclear installations (Article 19).

There is no doubt that the adoption of the Convention on Nuclear Safety is an important step toward more precise formulation of the fundamental principles for a reliable and workable international nuclear safety regime. At the same time the requirements ennumerated above can exceed the possibilities of many nuclear countries, participating in the negotiations. Several comments should be made in respect to this:

1. 1. The provisions of the of the Convention behoove considerable quality improvements in national nuclear industries of the States. This will inevitably put the potential Parties of the Convention before political and economic choice: to sacrifice other current economic priorities for the sake of the quality improvement of existing nuclear facilities; to shutdown some operating nuclear facilities, thereby depriving itself of a certain share of energy supply; to accept assistance for upgrade operations from international institutions it any is provided; and to not undertake at all any obligations under the Convention that interfere with the current or possible interests of the State. However, only a very small number of nuclear countries, even those that are building new nuclear installations, at present may afford to redirect significant investments into the upgrade R&D and construction works related to already operating nuclear facilities. To accept IAEA assistance with related responsibilities to comply with the IAEA regulations may be considered politically unacceptable.
2. 2. At present it is also economically and politically unacceptable for the many States to shutdown, on a safety basis, unreliable nuclear facilities because these facilities provide strategically important energy supply. Some nuclear facilities located, for example, on the territory of the former USSR, and in Eastern Europe--even though known to be unsafe--are currently operating because their decommissioning may have unfavorable side effects on local economies. Moreover, a number of nuclear facilities decommissioned earlier for safety considerations, such as the Medzamor NPP (Armenia), built in a seismically active mountain region [5], two operational units of Ignalina NPP (Lithuania), and the "Kozloduy-1" NPP (Bulgaria) [33], are currently being prepared to restart operation.
3. 3. In an attempt to ensure firm basis for the nuclear safety, the Convention is designed to promote relevant national legislations in its Member States. However, bringing the national systems in line with the Convention on Nuclear Safety will demand serious developments and modifications in national legal provisions for nuclear energy use in the Member States. That cannot be done within a short period of time.

The above explains why the process of the implementation of the convention is proceeding very slowly. Among 61 States that had signed the 1994 Convention, at the outset of 1996 only 12 States have consented to be bound by the Convention, and only 12 have ratified it [16, 18]. It is also obvious, that unless the economic activity in some regions is stabilized, little progress in promotion of the nuclear safety there can be achieved. Therefore, the applicability of the Convention on Nuclear Safety may be in question, unless the international community through its respective institutions develops the workable mechanisms of the best available technologies transfer, supplementary funding provisions, and ensures related investment guarantees.

At a special meeting of the IAEA board of Directors on May 21, 1986 [3], it was proposed to hold post-meeting conventions to give binding status among member nations to the current IAEA regulations on the provision of information in cases of nuclear accidents and emergency aid on the part of neighboring states, known officially as the Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency. The draft texts for these two conventions were drawn up between July 21 and August 15, 1986, and discussed at the IAEA General Conference that followed the post-accident review meeting and the two Conventions, on September 24-26, 1986 [34].

The first Convention noted that in the event of an accident at a nuclear reactor, waste facility, or during the transport and storage of nuclear fuels, nuclear wastes or radioisotopes, the "State Party" must notify those states in the vicinity of the accident, either directly or through the IAEA, providing details about the precise time and location of the accident [19]. The state in which the accident occurs must also provide any information in the accident report that would result in the containment of such an accident's radiological consequences. Included in the report details to be provided concerning the accident should be the causes, the composition of the radioactive materials released, meteorological and hydrological conditions, the measures taken to combat the accident, and the longterm fallout that might be expected.

The Convention concerning assistance in the event of a nuclear accident specified that either one or several states were to come to the aid of the "State party" in order to minimize the effects of an accident [20]. If any country whether or not the accident took place in that country, feels that it requires assistance from other states to lessen the impact of that accident, then it can either appeal to those states directly, or operate through the IAEA to request assistance. The member states should let the agency know of the equipment it possesses to combat such accidents, and the financial terms that might be drawn up for the use of such equipment. The role of the IAEA in the event of such a request is to allocate its own resources where necessary, pass on the request to other countries as required, and if asked to do so, to coordinate assistance "at the international level."

Agreements concerning the early notification of nuclear hazards have been concluded, in particular by Finland, Denmark, Norway, Sweden, Poland, and the USSR [3]. The principle that property must be used in such a way as not to cause prejudice to others has received full recognition in both the theory and practice of international law. This principle declares that a State may not use its territorial sovereignty in such a way as to infringe the territorial sovereignty of other states. It was clearly set out in the Stockholm Declaration on the Environment (1972) and in a number of other instruments of international law [22]. An illustration of the application of this principle is the principle of "good neighbors" based on the idea that the states must exercise the territorial sovereignty in a manner that respects the rights of other states, and particularly those of neighboring states. Compliance with this principle creates a balance of forces, since the mutual obligations between states presuppose both the freedom of action of any state on its own territory, and the freedom of neighboring states from the possible transboundary consequences of such action (see Liability Section).

The Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency close a significant gap in the international legal framework. At the same time, although some of the nuclear countries (i.e., the USA and the USSR) have declared their intent to report the accidents not only at civil but also at the military nuclear facilities [3, 16], the requirements on notification do not formally apply to the accidents resulting from the nuclear weapon testing or involving nuclear weapons [19].

The Chornobyl nuclear accident showed the advantages and shortcomings of the nuclear third party liability regime established by the 1960 Paris Convention and the 1963 Vienna Convention and their supplements. Let us consider the main aspects of the liability for nuclear damage.

International and civil liability for nuclear damage are two different types of liability. The determination of material compensation in regard of transboundary nuclear damage in a matter of international liability. This liability is given effect within a "government-to-government" framework. It must be implemented in a way that takes account of the specific features of international law, and the status of the state as a subject of this law [22].

Civil liability for nuclear damage concerns claims for damage between subjects of domestic law within the framework of the following relationships: the person who has suffered the damage, and the nuclear operator; the person who has suffered the damage and the financial guarantor of the nuclear operator; the person who has suffered the damage, and the government, when the government is the financial guarantor of the nuclear operator [26, 27].

Civil and international liability are very different one from the other, so it is necessary take particular care when transposing the provisions of civil liability to the area of international liability. Civil liability for nuclear damage is very wide and set out in detail in the law of many states. The main provisions of international law regarding civil liability for nuclear damage are contained in a number of conventions. The most important of them are the Paris and Vienna Conventions. Many of the provisions of these conventions could be improved and amended. It is important to widen the scope of application of these conventions since at present such countries as USA, Canada, Japan, and all the Eastern European countries and the former republics of the USSR are outside them. The system of civil liability for nuclear damage is for the moment restricted to the countries of Western Europe which are signatories of the Paris Convention, while the signatories of the Vienna Convention are not significant users of atomic energy. The simplest way to widening the scope of application of the convention would be for new countries to adhere to it. However, the most optimal solution would be harmonization of the international norms regarding civil liability for nuclear damage in the Vienna and Paris Conventions, and then to extend them to all countries [10, 22].

The subject of international state liability is to serve the top layer of compensation when funds run out in some circumstances. As for the civil liability regime it does not provide any compensation for transboundary victims of accidents. However, there are substantial differences between the civil and international states liability regimes. To solve them a new approach aimed at combining and integrating the elements of both regimes is required. At present it is not quite clear what liability regime should deal with damage that cannot be claimed under the civil liability or with claims for damage that could not be satisfied under the civil liability regime because of limitation of liability or other restrictions to which the civil liability regime is a subject. One of the big issues is the problem of transboundary victims' compensation.

The operator's liability is still an important problem to be solved in relation to the amendment of the Vienna Convention. Two key points are in focus of international negotiations. The first is rather simple proposition, i.e., if a state cannot cover all the costs -- social, environmental, economic, associated with the nuclear activities it engaged, it had rather not engaged in those activities. In this context the operator should be liable, to the full amount of his assets. At that point the State that has authorized the operator to engage in those activities should have some responsibility, in fact some States have an obligation to step in to meet all other costs [26]. This fact relates to the second key point. These negotiations are being followed extremely carefully, although they are shrouded in a certain degree of secrecy, by a number of non-governmental actors, insurers, nuclear operators and non-governmental organizations. From the point of view of non-governmental organizations these are issues of public confidence. To send out a signal that you are limiting your liability as an operator -- as has happened in the UK, to 20 million pounds -- is a signal that you have no confidence in your own technology and you are not willing to invest in the consequences of activities which you are claiming to be safe. Thus, a low limit of liability has in fact a negative impact on public confidence. One finds that environmental organizations are far less critical of countries like the United States which have devised extremely innovative measures to increase very significantly the level of liability and countries like Germany and Switzerland which have, at least in principle, accepted the unlimited liability rule and allow the market to determine whether or not people will invest in that activity. It is well-known from the experience of the UK, where attempts were made to privatize nuclear power, that cities share the same view as Greenpeace International on the question of the economic viability of nuclear power, and the government was not able to privatize. In that context, the question of the operator's limit of liability is central to the issue of public confidence. So even if there is not going to be unlimited liability, if operators want to encourage the public to believe in their technology, they must be willing to accept liability up to a very significant level that goes much beyond the 150 million SDR now cited [22].

At present there is no single, generally accepted definition of damage in international law. It must be defined on a case-by-case basis. Both in theory and practice, the damage caused by transboundary pollution is considered to be material damage. Nevertheless, the concept of damage in international relations is not limited to material damage, but also includes the notion of moral injury. So one of the more important questions presently under consideration in the ongoing negotiations on the revision of the Vienna Convention is evidently the one concerning the concept of damage. One of the current problems is how to compensate the damage caused to the environment and what is the mechanism to make the expenses on preventive measures recoverable. Another is the possibility to extend a future civil liability regime in this field for covering such damage and such costs [10]. These questions are far from being non-controversial. In other words the proposal to extend the definition of the concept of damage is still under discussion, particularly as regards the question of compensation for environmental damage and preventive measures. Of course, there are advantages and possible drawbacks related to an extended and more precise definition of the concept of damage in the field of nuclear law as compared with the existing definitions. In this respect it can be possible and desirable to include rules of compensation for environmental damage as well as preventive measures in revised international legislation on nuclear third party liability. These provisions should be unambiguously defined in a new Convention, and should not be left to national law in order to create international uniformity and to avoid different treatment of victims depending on the place of the accident.

In the existing Civil Liability Conventions the content of damage, as it has been already mentioned, is defined in different ways. The relevant provision in the Paris Convention is Article 3(a) [26]. It specifies as damage covered by the Convention: damage to or loss of life of any person, and damage to or loss of any property. This is subject to certain exceptions and limitations concerning the nuclear installation itself and any other nuclear installation or property on the same site. But this provision attempts only a very general definition of the damage covered. There is nothing mentioned about damage to the environment. The relevant provision in the Vienna Convention is Article 1(k) [27]. This provision specifies as damage covered by the Convention as follows: " loss of life, any personal injury or any loss of, or damage to property, and any other loss or damageÉif and to the extent that the law of the competent court so provides." This is subject to exceptions concerning the nuclear installation itself, property on the same site, etc. (Article IV.5) similar to those mentioned above.

The Vienna Convention like the Paris Convention leaves the elaboration of the types of damage covered to national law. However, the current proposal under discussion is an amendment to the existing definition in Article I. 1(k) to the following effect. By this definition nuclear damage means [16, 26]:

• loss of life or personal injury;
• loss of or damage to property;
• loss or damage by contamination to the environment, provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of
• reasonable measures of reinstatement actually undertaken or to be undertaken;
• other loss of profit not referred to in the above subparagraph, (if, and to the extent determined by the law of the competent court);
• the cost of preventive measures and further loss or damage caused by such measures, to the extent that the loss or damage... arises out or results from the radioactive properties.

Nevertheless, the proposed definition has met considerable opposition and is one of the major obstacles to agreement on a new draft Convention. But this definition is preferable to the current position and would contribute to unifying law in this particular field.

As for evaluation of material damage it still remains a very complicated matter. Material damage may be considered to be damage caused to a person or property, and may include all types of lost assets, including indubitable losses caused, for example, by the inability to use land, water, etc., because of radioactive contamination. It also includes loss of income, for example, from trade and tourism [22].

The technical means of detecting and locating nuclear damage are available now. They make possible to establish an incontrovertible link between nuclear damage and the use of atomic energy where it exists. But no profound study has been made of the question of whether such a casual link constitutes the main prerequisite for establishing a government's international liability for compensation. In the literature of international law there is agreement on one main point, i.e. in determining international liability for the harmful consequences of the acts of a government, international law allows the cause of the consequences to taken into account as well as the damage. In the case of nuclear damage, the fact of establishing a casual link between a permitted action and the cause of the damage is tantamount to establishing the existence of an unlawful act on the part of the government.

The theory of fault and objective liability is another subject of particular interest in international law. The definition of the place of objective liability in the system of international law may depend on the fact whether this liability is a general or selective principle in international law. Of course, it is expedient to adopt the principle of objective liability based on objective prerequisites which are independent of the concept of fault [27]. The legal literature postulates two types of international liability which are independent of the concept of fault, thereby giving an objective basis to this liability: liability with regard to a risk, and absolute liability. Thus, liability with regard to a risk is liability for an occurrence. However, such factors as force majeure, third party fault, or the fault of the victim which relate to the circumstances of the occurrence, release the incriminated party from liability. Absolute liability is liability for both an occurrence and force majeure. The only circumstances that can release a party from absolute liability are large scale warfare, natural disasters, premeditated acts or patent negligence on the part of the victim.

It is generally accepted at present that international state liability for nuclear damage constitutes a liability for compensation. This liability must be given effect primarily with a view to compensating a state or group of states for damage that has been incurred in connection with the use of atomic energy for peaceful purposes. In this case the forms of compensation are determined by the nature of the obligation that has been infringed. These forms are various and depend on the type of damage incurred, i.e. material or non-material. The payment of monetary compensation or compensation of an amount equivalent to the damage caused is a main element of the implementation of international liability for nuclear damage [22]. But in practice, the determination of the amount of compensation is fraught with difficulty, problems arising with determining both the scale of the damage and the amount of the compensation.

Furthermore, the definition of the compensation principle acquires a special importance. The problem is whether the compensation should be full or there should be an upper limit on it. In theory and practice the priority is placed on the principle of compensation in full. However, there are some views that indicate that this approach is ill-advised since it constitutes a major impediment to the use of nuclear power for peaceful purposes.

Financial guarantees for nuclear risk is another important problem in the field of nuclear power use. At present there are disparities in the implementation of the existing conventions by the various Member States regarding the amount covered by the operator's insurance in the Conventions. These disparities have some disadvantages [10, 23, 26]. They have a negative effect on the image of the nuclear industry in the public eyes, that is, the public sees that different countries give different answers to the question of what damage can result from a nuclear accident and what compensation should be provided. Of course, the differences among the countries that signed the Paris and Brussels Conventions cannot have been intended by those who originally set up these conventions. They are even more striking inside the European Community where harmonization of legislation is normal practice and a common goal. Thus, it is relevant that most operators are or soon will be working in a privatized situation and in competition, i.e., competition with other sources of energy and competition with each other. The differences in the legislation lead to different financial obligations for operators on different sides of the borders. In this respect, the recent NEA recommendation to set the maximum of an operator's liability at not less than 150 million SDRs will not improve the situation because a number of States have already fixed higher limits in their own national legislation and others are likely to follow [22]. To sum up, the differences in national legislation with their negative effects on the public and for the operators are increasing and so far, due to lack of cooperation on the part of the governments, the International Conventions have failed to solve this problem.

From the point of view of power utilities the concern is how to manage the overall nuclear safety, liability and compensation system together. The utilities consider they have to invest their means in nuclear safety so to ensure that the consequences of eventual nuclear incidents will remain inside the safety barriers and containments so that the only remaining risk outside the installation would be from exceptional natural disasters. Society at large does not provide any guarantee against this type of natural disaster. As regards liability and compensation, there are national and international systems involving insurance and supplementary funding which is a new element that could enhance the total system of safety and credibility [6].

From the juridical point of view the problems of nuclear incidents prevention, i.e., rules on safety and supervision, prohibitions, penal sanctions, etc., and compensation for nuclear damage belong to different fields of law. However, one cannot deny a certain interrelation between liability and compensation for nuclear damage on the one hand and prevention of such damage on the other. The preventive effect of civil liability is admitted to be considerably weaker. But liability insurance may become an important factor of control in the conduct of risk-creating activities. Moreover, affording certain privileges to the operator, e.g., limitation of liability, on the conduct of maintaining the required safety standards may also have some preventive effects. Pooling arrangements on the level of operators or states may be significant as preventive measures if their effectiveness is made conditional on the application of agreed safety standards subject to international inspection. However, prevention is not the only problem of first priority, but the lack of internationally agreed binding nuclear safety regulations when considering some issues of compensation is a focus as well. In this case the system of international nuclear security may be composed of two main elements. The first element being established is international binding nuclear safety requirements ensuring the acceptable minimum of nuclear safety. The second element being established is international norms on liability and compensation for nuclear damage ensuring the acceptable minimum of financial protection for victims of nuclear incidents. These seem to be basic requirements for the credibility of nuclear industry.

To cope with the problems related to the mechanism of compensation for nuclear damage a set of tools has been designed within the existing conventions, i.e. special funds: governmental, nuclear industry, local, regional; additional funding; supplementary and subsidiary funding; international nuclear funds (nuclear pools) to compensate the clean-up measures [16, 26, 27, 28]. However, the current levels of compensation under the Conventions still remain inadequate [22]. The States may feel obliged to turn to national solutions if the international cooperation fails to provide sufficient protection but the compensation mechanism requires to be improved.

As mentioned above liability regimes traditionally focus on compensation. Where the damage concerned is suffered by a particular individual or State no difficulty arises with this approach. But in the case of damage to the global commons that is not specifically suffered by any particular State, the problem, of course, arises as who would receive any compensation. One approach to providing compensation for nuclear damage taken in number of recent treaties dealing with civil liability for damage within the national jurisdiction of States goes some way to providing a solution to the problem. This is to focus on the aim of repairing the environment, that is to say preventing or minimizing future damage. The concept of reinstatement should be elaborated as soon as possible. It should include the introduction of the equivalent of damaged components of the environment into the environment. Pursuant to such a provision individuals or States incurring clean-up costs could claim compensation for those costs. In this case the benefit of liability is enjoyed by all who use that environment now and in the future, rather than only going to the claimant. Of course, this would not guarantee that such clean-up measures would be undertaken. However, it would mean that individuals or more probably States would not be discouraged from undertaking remedial measures by the prospect of having to bear the costs themselves.

A more comprehensive approach to ensuring that measures are taken to reinstate the environment when damage does occur would include an express obligation on the part of the individual causing the damage to carry out preventive and remedial measures. This would ensure that the fundamental aim of reparation, to restore the situation that would have existed if the damage had not occurred, would be achieved.

The Chornobyl nuclear accident made it clear that the existing international liability regime established by the Vienna Convention on Civil Liability for Nuclear Damage of 1963 (the scope of Paris-Brussels liability regime is limited to the OECD countries) is not adequate to ensure equitable and rapid compensation, particularly in the event of large scale damage [3, 22]. Current regime has limited territorial application, narrow definition of damage, and cannot guarantee necessary level of compensation.

Both the Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the Case of Nuclear Accident or Radiological Emergency, elaborated just after the Chornobyl accident and then implemented, were aimed to close a significant "gap" in the legal framework of mitigation of the consequences of nuclear accidents. They also provide for the possibility of bilateral and multilateral intergovernmental agreements in respect of their subjects [19, 20, 34]. At the same time, the 1986 Conventions do not provide a basis for a formal definition of international legal claims for compensation in respect of nuclear damage. Failure by a Contracting State to comply with the obligations under the Convention on Early Notification of Nuclear Accidents does not constitute a source of liability under international law.

Besides, under the rules of customary international law on State responsibility, foreign victims of a nuclear accident are practically unable to receive compensation for damage from the Installation State. Many countries, including the USSR, which participated in the drafting of the Vienna Convention and were signatories of the Final Act of the international diplomatic conference for its adoption (1963), never ratified this convention [16, 22]. Even if the USSR, for example, had been the party of the Vienna Convention at the time of the Chornobyl accident and even if it had been possible for the victims to receive compensation by virtue of the Convention, compensation could have been paid only to a very small number of victims.

The idea of the revision of the existing nuclear liability regime has engaged the attention of experts for more then two decades. The question of its amending over the past years was a subject of many writings and conferences, such as the congresses of the Nuclear Law Association and the Symposium on Nuclear Third Party Liability and Insurance held in Munich in 1984. Still, the Chornobyl accident with transboundary consequences necessarily alerted international public opinion to finally arrive at an understanding that the resolute steps toward revision of the Vienna Convention should be initiated without delay.

The question of international liability for nuclear damage was put on the agenda of the IAEA General Conference just after the accident. But throughout the development of the negotiation process the focus of revisions was gradually changed. The note on the issue of the developing new liability regime initially prepared by the IAEA Director General at the request of the Board of Governors was strongly suggestive that the primary way to improve the existing regime would be that of concluding a new international instrument based on the principle of state liability [16, 22]. The following decision of the Board of Governors to set up an open-ended group to study all aspects of liability for nuclear damage was worded in a more restrained way: whereas Document GOV/2306 dated May 22, 1987, a year after Chornobyl accident, literally stated that "the Board requests the Director General to convene an open-ended working group of governmental experts for the purpose of studying further the issues involved in international liability for damage arising from a nuclear accident and the scope of a new international legal instruments in this field" the Board's decision of February 23, 1989 contained no reference to a "new international legal instruments," but assigned the working group the task "to study all aspects of liability for nuclear damage. In this context the working group should consider the ways and means of complementing and strengthening the existing civil liability regime and consider also the questions of international liability."

The working group started work in May 1989, and in 1990 the IAEA Board of Governors set up a Standing Committee on Liability for Nuclear Damage [15]. It was requested to consider international liability for nuclear damage, including international civil liability, international State liability and the relationship between international civil and State liability.

The negotiations on the revision of the Vienna Convention, going on up to now for over seven years, cover the substantive aspects mainly of the following areas: extension of the geographical scope of the Convention, application of the Convention to military facilities or for non-peaceful uses of nuclear energy, concept of nuclear damage, exonerations, financial limits of liability, time- limit for submission of claims, priorities in settlement of the claims, supplementary funding for compensation for nuclear damage, dispute settlement procedure, definition of Installation State with respect of military installations, international tribunal for settlement of claims, problems of claims commissions, updating the liability limit, and some others [6, 23, 38].

These talks have shown broad areas of agreement on the need to improve and strengthen the existing regime. However, the participants hold widely differing views on what is to be understood by this improving and strengthening and on how far to go in amending the Convention and what new provisions to insert in it. The representatives of States participating in the negotiations within the Standing Committee have sought to affirm different interests and concepts. Like at some other negotiations dealing with nuclear energy issues, there are certain conflicting views between States operating nuclear power plants and those that has no such nuclear installations or have closed them down. The States possessing nuclear installations for military purposes and States having no such installations also hold widely different approaches [16]. The developing countries at the negotiations form a special and separate group pursuing goals often conflicting with those of the industrialized countries.

In connection with the Vienna negotiations, special mention should be made of the States Parties to the Paris-Brussels regimes of liability. Most of them have similar positions on a number of issues [22]. It is the delegates of this group of States who are most active at this negotiations and who have submitted the greatest number of concrete proposals for a revision of the Vienna Convention.

In all, the Vienna talks apparently reflect the conflicting views and endeavors of virtually two groups of States, one preferring to modify the Vienna Convention under a maximalist program and the other taking more realistic view of the situation and expecting to adopt amendments of a more modest scope.

These negotiations are rather slow in moving ahead and the date of the final diplomatic Review Conference of the Vienna Convention to adopt amendments is being delayed: initially, obviously still under the influence of the shock caused by the Chornobyl accident this conference appeared possible to take place in 1991 [6], then it was postponed to 1993 [23], and currently it is scheduled for 1996 [16]. Within the revision of the Vienna legal regime, this Conference would also consider the question of elaborating of supplementary funding convention.