CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ NUCLEAR LIABILITY: OLD FEARS AND NEW PERSPECTIVES ON THE CONCEPT … Regarding the time factor of implementing preventive measures, a difference in the regimes of the amended Vienna and Paris Conventions may be identified, where, within the former, preventive measures are deemed as any reasonable measures to prevent or minimize the occurrence of nuclear damage taken by any person after the very occurrence of the nuclear incident. The regime of the amended Paris Convention is based on an extended definition of preventive measures which, in addition to measures to prevent or minimize nuclear damage taken after the occurrence of a nuclear incident, classifies as preventive measures also any reasonable measures taken after an event creating a grave and imminent threat of nuclear damage. Within the regime of both amended Vienna and Paris Conventions, preventive measures may be taken by any person but subject to an approval of a competent authority of the state where such measures were taken. Such strictly set conditions for admissibility of compensation for costs incurred for preventive measures offset, to some extent, the insurance market’s concerns about the insurability of this head of nuclear damage, but they also prevent an undesirable phenomenon referred in German literature to as “ Ausuferung der Haftung ”. The costs of preventive measures are subject to the proportionality criterion, the evaluation of which depends on the approach of the law of the court authorized to act and decide on the compensation for nuclear damage. Proportionality as a relatively abstract category is assessed in terms of the appropriateness and proportionality of the measures taken so that a balance between the costs incurred and their intended purpose shall be maintained. It is necessary to take into account all the circumstances of the particular case, while the Protocols amending the basic conventions lay down by example which circumstances to be taken into account. It is, in particular, the nature and extent of the damage incurred or, in the case of preventive measures, the nature and extent of the risk of such damage, the extent to which, at the time they are taken, such measures are likely to be effective or relevant scientific and technical expertise (e. g. expertise concerning quantification of the damage suffered, determination of the effectiveness of individual measures, definition of their quality level in relation to the renewal process regarding the damage suffered, etc.). 55 The court authorized to act and decide in the particular case shall set clear criteria determining the proportionality of costs from a technical point of view, but these criteria must be also sufficiently flexible to be applied to different types of measures. 56 5. Conclusion Today, when one may conclude a sustained increase in the number of individual nuclear power plant units globally and with current knowledge that replacing nuclear energy with renewable resources is not realistic with existing consumption growth, it is essential to admit refused compensability for cross-border damage caused by the actions of the authorities they wanted to protect their country’s population against long-term risk of radiation exposure. HANDL, G.: Transboundary Nuclear Accidents: The Post Chernobyl Multilateral Legislative Agenda. Ecology Law Quarterly, 2/1988, pp. 242-243 quoted from 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. 79. 55 Art. 2 (4) of the Protocol to amend the Vienna Convention and Art. B (x) of the Protocol to amend the Paris Convention. 56 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. 78.

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