CYIL vol. 10 (2019)

MARIANNA NOVOTNÁ CYIL 10 ȍ2019Ȏ differing from the impairment of the environment of private property (e.g. land, forest). 48 Impairment of the environment of private property (it should be born in mind that much of what we consider as being part of the environment belongs to an actual or legal person, which may be a public body 49 ) should be subject to the compensation for damage to property. The quantification of “environmental damage per se ” reduced in nuclear legislation to costs of measures of reinstatement of impaired environment implying ipso facto an economic consideration, requires the preliminary verification that a certain type of damage (environmental damage) has occurred and then, in a second stage, the quantification of the economic losses arising from such a damage. 50 However, the second-generation conventions neither define the notion of environment 51 as a prerequisite for establishing the amount of costs of measures for restoring the damaged environment nor indicate the explicit meaning of the formulation “unless insignificant” as an exclusion of liability clause, thus constituting a considerable level of ambiguity in the interpretation of this kind of nuclear damage. Furthermore, the expanding liability hitting the area of environmental damages and the nature of public good of the environment have generated much controversy within the liability insurance market and have led to a widely recognized position of insurance market that almost all forms of environmental liability are currently uninsurable due to the unquantifiable nature of environmental damage. 52 4.3 Costs of preventive measures The reimbursement of the costs of preventive measures represents a category of loss whose compensability was calling for by the nuclear law doctrine in relation to nuclear incidents for a long time, 53 despite the fact that the insurance market had serious reservations about the insurability of this category of loss (especially in view of the unpredictability of the extent of such costs). The compensable costs within this category of nuclear damage are those incurred for preventive measures as well as other losses or damage resulting from preventive measures. 54 48 ŁOPUSKI, J. Liability for nuclear damage – an international perspective. Reflections on the revision of the Vienna Convention. Warsaw: National Atomic Energy Agency, 1993, p. 30. 49 DUSSART-DESART, R. The Reform of the Paris Convention on Third Party Liability in the Field of Nuclear Energy and of the Brussels Supplementary Convention: An Overview of the Main Features of The Modernisation of the two Conventions. In: Nuclear Law Bulletin , No. 75, 2005, p. 14. 50 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, pp. 196-197. 51 It should be noted that it is difficult to develop a precise definition of „environment“ for purposes of nuclear damages that would be narrow enough to keep the floodgates closed while at the same time broad enough to enable a holistic approach. 52 See for example TETLEY, M. Revised Paris and Vienna Nuclear Liability Conventions – Challenges for Nuclear Insurers. In: Nuclear Law Bulletin , No. 77, 2006, pp. 36-37; FAURE, M. Environmental damage insurance in theory and practice. In: Swanson, T. (ed.) An Introduction to the Law and Economics of Environmental Policy: Issues in Institutional Design . Research in Law and Economics, Vol. 20, Emerald Group Publishing Limited. 53 DEPRIMOZ, J. La notion de dommage nucleaire appliquee au cout des mesures preventives en cas de menace imminente de dommages aux tiers . In: OECD NEA (ed.), Nuclear Third Party Liability and Insurance. Status and Prospects. Paris: OECD, 1985, p. 214. 54 The inclusion of other loss different from direct costs themselves incurred for preventive measures, but caused by preventive measures, i. e. such loss or damage that is their direct consequence, into the nuclear damage concept may be seen as a response to the experience of the Chernobyl nuclear incident, when the Soviet Union

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