CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ NUCLEAR LIABILITY: OLD FEARS AND NEW PERSPECTIVES ON THE CONCEPT … tort law 42 in answering the question how far can tort liability expand without imposing excessive burdens upon individual activity. Some laws consider pure economic loss to be a category associated with uncontrollable und unforeseeable floods of claims and therefore not compensable, however in other countries, pure economic loss is treated as any other recoverable loss. 43 Regardless of the diversity in approaches taken on the national level, the approach of nuclear liability law to the pure economic loss recovery should be more cautious and restrictive always bearing in mind the limitation of operator´s liability in amount and time and the value and nature of legally protected interest (e.g. life and health vs. pure economic interests). 4.2 Environmental damage The second-generation nuclear conventions 44 do not define environmental harm as a type of damage comprehended in the broader concept of nuclear damage, but rather specify the possible categories of economic consequences arising from potential negative impacts on the environment which are considered as recoverable damage under the conventions. 45 Environmental damage is, by its very nature, a highly controversial concept of civil law of torts, if we look at it through the prism of objective monetary expression. Difficulties caused by the definition of the extent of the environmental damage itself as well as the establishment of criteria for its compensability constituted the reasons why several states were set against the subsumption of environmental damage under the concept of nuclear damage in the process of negotiation related to the revision of the first-generation conventions. 46 The concept of environmental damage, which was adopted in the final amended version of the second-generation conventions, therefore reduced the extent of compensable environmental damage solely to the costs of measures for restoring the impaired environment, except where such damage would be insignificant. 47 The concept of costs of reinstatement measures as the recoverable head of nuclear damage covers only the impairment of the general environment (environmental damage per se which can be claimed by aggrieved person entitled to claim for damage to public property) 42 ROGERS W.V.H., SPIER J., VINEY G. Preliminary Observations. In: SPIER, J. (ed.) The limits of liability. Keeping the Floodgates Shut. Hague, Boston: Kluwer Law International, 1996, p. 8. 43 VAN BOOM, W. Pure Economic Loss. A Comparative Perspective. In: VAN BOOM, W., KOZIOL, H., WITTING, CH. A. (eds.) Pure economic loss. Wien, New York: Springer, 2004, p. 3. Available at SSRN: https://ssrn.com/abstract=555809. 44 The first-generation nuclear liability conventions do not refer to damage caused to the environment and to other related environmental losses as the nuclear damage. 45 DANZI, E. Some Reflections on the Exclusion of Nuclear Damage from the Scope of Application of the Environmental Liability Directive. In: PELZER, N. (Hrsg.) Europäisches Atomhaftungsrecht im Umbruch . Tagungsbericht der AIDN/INLA-Regionaltagung in Berlin 2009. Baden-Baden: Nomos Verlagsgesellschaft, 2010, p. 196. 46 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. 73. 47 Environmental restoration measures are such reasonable measures that were approved by a competent authority of the state where the measures were taken (i. e. they may be measures approved by a state other than the one in the territory of which a nuclear incident occurred) and which aim to restore damaged or destroyed environmental compartments into the previous or similar condition or, where reasonable, put equivalents of these compartments into the environment. Article 2 (2) of the Protocol to amend the Vienna Convention and Art. B (viii) of the Protocol to amend the Paris Convention.

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