CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ NUCLEAR LIABILITY: OLD FEARS AND NEW PERSPECTIVES ON THE CONCEPT … Civil Liability for Nuclear Damage , 15 Convention on Supplementary Compensation for Nuclear Damage and Protocol to amend the Paris Convention on Third Party Liability in the Field of Nuclear Energy ) that emphasized the issue of the definition of nuclear damage significantly. 3. Extended concept of nuclear damage – legal basis and general overview The Chernobyl experience led, among other things, to identification of the problematic issues within international legislation and subsequent complex evaluation of the nuclear damage concept together with formulation of corrective measures that would be able to follow the shift in perception of protection of the victim against the adverse effects of the use of nuclear energy. Mainly, it was concluded that terminological interpretation of the original elements of nuclear damage, “loss of life, personal injury, loss of or damage to property”, within the laws of individual countries (with each one of them approaching the definition of the respective notion within civilist theory or practice according to its own criteria and legal environment), leads through diversity of the selected theories to insecurity, ambiguities and major differences in the extent of compensable damage between these countries. 16 Different interpretations of the key terms for determination of the extent of the compensable nuclear damage led to general statement on ambiguity and rather restrictive scope of the definition of nuclear damage used in the Vienna Convention 17 as well as in the Paris Convention. As regards the period when the first-generation conventions were adopted (the 1960s), an emphasis was put on a significant progress concerning definitions of the damage within the international conventions of similar nature regulating civil concept of liability for damage caused by activities not prohibited by international law Jakub Handrlica 18 that were potentially capable to become a source of reference for an updated regulation of nuclear damage. On the other hand, those who oppose extension of the concept of nuclear damage argued that the new heads of nuclear damage shall have negative impact on compensation of the for Nuclear Damage: The Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention, Nuclear Law Bulletin, 43, 1989. 15 For more detail see LAMM, V. The Protocol Amending the 1963 Vienna Convention, Nuclear Law Bulletin, Paris, 61, 1998; REYNERS, P. Modernisation du régime de responsabilité civile pour les dommages nucléaires: révision de la Convention de Vienne et nouvelle Convention sur la réparation complémentaire des dommages nucléaires, Revue Générale de Droit International Public , Paris, 1998, SCHWARTZ, J.: Diplomatic conference convened to adopt a protocol to amend the Vienna Convention on civil liability for nuclear damage and to adopt a Convention on supplementary compensation for nuclear damage. In AIDN/INLA (ed.): Nuclear Inter Jura 1997, Paris : Société de Législation Comparée, 1998. 16 The said shortcomings in the definition of the notion of nuclear damage were mainly demonstrated after the nuclear accident in Chernobyl. Countries where the damage was caused would probably provide quite different answers to questions whether and to what extent can such a large scale of economic losses suffered as a direct consequence to a nuclear incident be qualified as damage to property. (IAEA: The 1997 Vienna Convention on Civil Liability for Nuclear Damage and the 1997 Convention on Supplementary Compensation for Nuclear Damage. Explanatory Texts. A comprehensive study of the Agency‘s nuclear liability regime by the IAEA International Expert Group on Nuclear Liability (INLEX) to aid the understanding and authoritative interpretation of that regime, 2004, pp. 35-36.) 17 Report of the Second Session of the Working Group on Liability for Nuclear Damage (document NL/2/4, p. 3). 18 The Protocol of 1993 amending the international Convention on Civil Liability for Oil Pollution Damage (1969) became a possible model for a new definition of nuclear damage. This protocol extended civil liability in its definition of “damage caused by pollution” by environmental damage, costs of preventive measures and loss or damage caused by such measures. An almost identical definition was adopted in 1993 by the European Council in the Convention on Civil liability for Damage resulting from Activities Dangerous to the Environment.

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