CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ NUCLEAR LIABILITY: OLD FEARS AND NEW PERSPECTIVES ON THE CONCEPT … personal injury and property damages, a compensable nuclear damage also includes other heads of economic loss, the costs of measures of reinstatement of impaired environment, loss of income deriving from an economic interest in any use or enjoyment of the environment and the costs of preventive measures. For the purposes of qualification of the said damages as nuclear damage, these (same as in case of the original nuclear damage definition in the first- generation conventions) had to be caused by one of the types of ionising radiation, specified in the second-generation conventions (the said does not apply in case of compensation of the costs of preventive measures and further loss or damage caused by such measures). Each of the newly established element of nuclear damage amending the original definition exists as a recoverable head of damage in states that ratified or acceded to the second- generation nuclear conventions, however, only to the extent determined by the national law of the competent court. 23,24 This formulation brought an undesirable element of insecurity into the international nuclear liability legislation (or the original element of insecurity and ambiguity, criticised in relation to the original nuclear damage definition, persisted, or even amplified) as defining the scope of the “new” categories of nuclear damage became dependent on the interpretation of applicable law of the competent court, 25 while from the comparative point of view, clear differences in the content of the economic loss categories, environmental damage and preventive measures within national legislations of the contracting states to the conventions can be identified. 26 The said concept of compensability “to the extent determined by the law of the competent court“ thus ignited extensive discussions and conflicting opinions about its interpretations within professional nuclear circles. One of the interpretations concluded that in accordance with lex fori the competent courts are entitled to decide on admissibility, or inadmissibility of claims for compensation of nuclear damage constituted by one of its newly established heads. A legal consequence of the said interpretation would be a possibility for the contracting states to the Protocols to decide within their national laws whether they shall recognise the new heads of nuclear damage as nuclear damage or not. 23 Formulation of the list of heads of nuclear damage was modified several times in the course of negotiations on revision of the nuclear damage definition within the Vienna Convention regime. The first draft of the list of the nuclear damage did not contain any reference to a possibility of the competent court to having a right to determine the scope of compensation. On the contrary, the wording drawn up at the sixteenth meeting of the Standing Committee paradoxically conditioned the scope of compensation of all the categories of nuclear damage (i.e. personal injury, loss of life and damage to property) by the competent court´s regulation of the law (see document SCNL/16/INF.3, pp. 20 and 25). During the seventeenth meeting of the Standing Committee, the French delegation proposed to insert a provision on “the scope determined by the law of the competent court” so that it could not be applied in relation to the personal injury, loss of life and damage to property. By accepting the said draft, the actual wording was adopted (see document SCNL/17.II/INF.7, pp. 4-5, 15, 17, and pp. 22-23). 24 Art. 2 (2) (k) ii) in fine The 1997 Protocol to Amend the Vienna Convention and art. I (b) (vii) The 2004 Protocol to Amend the Paris Convention, art. 1 (f) Convention on Supplementary Compensation for Nuclear Damage. 25 LAMM, V.: The Protocol amending the 1963 Vienna Convention. In : Nuclear Law Bulletin , No. 63, 1998, p. 14. 26 Cf.: 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: OECD Nuclear Energy Agency: Reform of civil nuclear liability . International symposium, Budapest, Hungary, OECD Publishing 2000, p. 66. as a result of a significant impairment of that environment, and insofar as not included in the category of “loss of or damage to property“ f) the costs of preventive measures, and further loss or damage caused by such measures.

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