CYIL vol. 10 (2019)

MARIANNA NOVOTNÁ CYIL 10 ȍ2019Ȏ as nuclear damage in case a national legislation applicable to the matters of compensation for nuclear damage in the respective case so provides. Therefore, it can be concluded that the first-generation conventions do not directly apply to the damages other than those relating to property, life or health of the injured (e.g. environmental damage 11 , lost profits, costs of preventive measures). These can only be subject to compensation if and to such extent as national legislation expressis verbis identifies them as nuclear damage or to such extent as the general law of torts or judicial practice subsumes them within the terms loss of life, personal injury or loss of or damage to property. Through a rather restrictive view of nuclear damage, the conventions of the first generation clearly reflect that there were high expectations about nuclear power as an energy resource of the future in the late 50s and beginning of the 60s. They were adopted approximately at the same time the European Atomic Energy Community was established with the common denominator of these instruments being an effort to support development of nuclear power industry as a new and perspective field. This is reflected by numerous instruments contained in the first-generation conventions apart from the restrictive definition of the nuclear damage: limitation of the operator´s liability in amount and time, exclusive court jurisdiction etc. This clearly positive perception of nuclear energy and its support through pro-nuclear legal framework was irreparably damaged by the accident in the American nuclear power plant Three Miles Island (1979) and in the Soviet nuclear power plant Chernobyl (1986). The Chernobyl accident showed the actual extent and nature of damage that a possible nuclear incident could cause. International public was confronted with the fact that the regime established by the first- generation international conventions would be insufficient in the face of a real nuclear incident. Therefore, the efforts of the international community focused on creation of a new legal regime that would adapt the first-generation conventions to the new post-Chernobyl reality. In these efforts, the international community concentrated on regulating several key aspects, 12 with the primary goal being not to create a favourable legal framework for further development of nuclear power industry but to achieve better protection of the victims by increasing the liability caps, increasing the amount of compensation available in the event of a nuclear accident through public funds , extending the scope of compensable nuclear damage and the scope of geographical application of nuclear liability conventions. 13 Negotiations resulted in adoption of the so-called second-generation conventions ( Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention, 14 Protocol to Amend the Vienna Convention on 11 The question whether the civil regime of liability for nuclear damage established by the Vienna Convention does enable to compensate environmental damage was the subject of several expert discussions. The expert discussion conducted on an international level concluded the issue by stating that civil liability not explicitly referring to the compensation for environmental damage cannot be, in any case, applied to damage caused to the individual constituents of the environment. (For more details, see: Soljan, V. The new definition of nuclear damage in the 1997 Protocol to amend the 1963 Vienna Convention on civil liability for nuclear damage . In: Reform of civil nuclear liability. Budapest symposium. OECD, Paris 1999, p. 61.) 12 For more details, see: SCHWARTZ, J.: Le droit international de la responsabilité civile nucléaire: l’ aprés Tchernobyl. In OECD Nuclear Energy Agency (ed.): International Nuclear Law in the Post – Chernobyl Period, Paris: OECD, 2006, pp. 326-329. 13 NOVOTNÁ, M., HANDRLICA, J. Zodpovednosť za jadrové škody. Výzvy pre medzinárodnú a národnú zodpovednostnú legislatívu v post – fukushimskom období . Bratislava: Vydavateľstvo Veda, 2015, p. x 14 The Joint Protocol of 1988 forms a virtual bridge between both contractual regimes of Vienna and Paris Conventions and ensures that only one convention applies to a particular accident. For more details on the objective and specific regulation, see: BUSEKIST, O. A Bridge Between two Convention on Civil Liability

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