CYIL vol. 10 (2019)

MARIANNA NOVOTNÁ CYIL 10 ȍ2019Ȏ that without the use of nuclear power it is not possible to ensure cumulatively economically and environmentally acceptable other energy source. Significantly progressive development of the nuclear industry in the past (nuclear power covered about 1/6 of electricity consumption worldwide) required creation of an effective legal framework that would reflect the specific risks of using nuclear power not only in the process of preventive effect of nuclear safety standards but also in the process of compensation of adverse effects of a nuclear incident. The paper gives a view of the latter process that is intended to deal with the consequences of the damage to which the nature of nuclear damage can be attributed under the nuclear liability legislation. It is just the scope of the notion of nuclear damage that is the determining factor in defining the extent of compensable damage arisen as a direct or indirect consequence of a nuclear incident. Unfortunately, also the issue of the definition of nuclear damage is affected by the situation which the legal framework of the liability for nuclear damage faces, both in global and in the European context. It is a phenomenon, referred to in the literature as patchwork of the rules of the nuclear liability law, when the adoption of seven international first-generation and second-generation conventions on the liability and compensation for nuclear damage constituted an unclear and complex labyrinth of the rules of these conventions and their mutual combinations instead of a single harmonized regime. 57 So, in relation to the identification of nuclear damage as one of the prerequisites for establishing the liability of a nuclear installation operator, there are states bound by the original narrow definition of nuclear damage, states bound by the extended definition of nuclear damage resulting from the second-generation conventions as well as states moving entirely outside the legal framework created by international conventions. Moreover, the process of harmonization in regard to the definition of nuclear damage is disrupted within its extended concept by leaving the extent of the compensability for “new” forms of nuclear damage fully at the disposal of the contracting states to the second-generation conventions, thereby only increasing the opacity and diversity of compensability. This approach is at least partly understandable in view of the nature of some “new” forms of nuclear damage, which in many jurisdictions are, by their very nature, controversial or at least disputable instruments in general law of torts (e. g. the issue of (non) compensability for pure economic loss, costs of preventive measures, etc.), let alone in the nuclear liability law, where their scope may go beyond what is imaginable. On the other hand, the question remains whether the approach of second-generation conventions to nuclear damage and its compensability is not more of a Schrödinger’s cat than a real means of harmonization and efficiency improvement of the nuclear damage compensation process, as it is doubtful that the existing international regime for nuclear damage can be considered as a satisfactory regulatory framework for establishing an effective approach to the notion of nuclear damage. However, the new perspectives in this point are too far beyond the horizon and, unfortunately, the old fears are still present.

57 NOVOTNÁ, M., HANDRLICA, J. Zodpovednosť za jadrové škody. Výzvy pre medzinárodnú a národnú zodpovednostnú legislatívu v post – fukushimskom období . Bratislava: Vydavateľstvo Veda, 2015, p. 129, REYNERS, P.: Liability Problems Associated with the Current Patchwork Nuclear Liability Regime within the EU Member States. In PELZER, N. (ed.). Europäisches Atomhaftungsrecht im Umbruch. Baden Baden: Nomos Verlag, 2010.

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