CYIL vol. 14 (2023)

MARIANNA NOVOTNÁ CYIL 14 (2023) operator 19 (if the nuclear facility operator is the State itself, its liability is of civil nature), who as a sole entity is liable for occurrence of nuclear damage (so-called legal channelling [20] ). 21 The nuclear liability regime was set up as a distinct normative system from the general tort law 22 on the basis of specifically constructed principles 23 that can be extracted from the basic normative instruments applicable to nuclear damage. 24 Despite the distinct treatment of nuclear damage compensation regulation, separate from the general civil law liability framework applicable to damage caused by activities associated with increased danger, (or it might be better to say by a source of increased danger) there is also a necessary legal link to a general tort law and its fundamental mechanisms due to the primary civil nature of the nuclear damage compensation regulation (at least in relation to certain legal aspects). As it is apparent, that the civil and non-contractual character of nuclear liability governed by the Vienna Convention forms a fundamental aspect of its legal regime and at the same time we may assume the collision of several legal jurisdictions will be relevant if there is a nuclear incident having cross-border consequences (thus the basic conditions for application of the Rome II Regulation are fulfilled), it is necessary to resolve the interplay between the Rome II Regulation and the Vienna convention. Upon initial examination, it may appear that the relationship between the Rome II regulation and the Vienna convention is explicitly defined in Article 1(2)(f) 25 of the regulation, which excludes non-contractual obligations arising from nuclear damage from 19 See Article I (1) (c) of the Vienna Convention: “ Person designated or recognized as the operator of a nuclear installation by the installation state .”. 20 For legal channelling concept see more AMEYE, E. Channelling of nuclear third party liability towards the operator: is it sustainable in a developing nuclear world or is there a need for liability of nuclear architects engineers? (2010) 19 European Energy and Environmental Law Review, pp. 33–58. PELZER, N. Die rechtliche Kanalisierung der Haftung auf den Inhaber einer Atomanlage – ein juristischer und wirtschaftlicher Fehlgriff? (1966) 17 Versicherungswirtschaft , pp. 1010–1016. 21 While constructing this so-called channelled liability the position of international “lawmaker” was based on the proposition that shifting the liability for nuclear damage solely to the operator of the nuclear installation is in accordance with the principles of civil law liability, since while using the nuclear energy as an activity which is organized, managed by the operator, and the operator makes profit out of it, there are certain processes of using certain types of technology or forces of nature which alone bear relatively high risk of harmful consequences. The operator is an entity which, due to its position of organizing and managing entity, has the biggest influence on the safest method of using of these dangerous sources and thus an opportunity to avert and prevent the damage. NOVOTNÁ, M., HANDRLICA, J. Act on civil liability for nuclear damage and its financial coverage as a new source of the Slovak liability nuclear and civil legislation (2015) 3 Societas et iurisprudentia , p. 47. 22 To the nuclear law as an academic discipline see HANDRLICA, J. Nuclear law revisited as an academic discipline (2019) 11 Journal of World Energy Law and Business , pp. 52–68. 23 To the nuclear liability principles see: HARDY, M. Nuclear Liability: The General Principles of Law and Further Proposals (1960) 36 British Yearbook of International Law , pp. 223–249, KISSICH, S. Internationales Atomhaftungsrecht: Anwendungsbereich und Haftungsprinzipien (Nomos Verlag 2004) pp. 142–143, PELZER, N. On Harmonizing Nuclear Energy Law in PELZER, N. (ed.) Status, Prospects and Possibilities of International Harmonization in the Field of Nuclear Energy Law (Nomos Verlag 1985) pp. 39–56, TREVOR, J. P. H. Principles of Civil Liability for Nuclear Damage in IAEA (ed.) Nuclear Law for a Developing World , (IAEA 1969) pp. 109–115. 24 NOVOTNÁ, M., ZORIČÁKOVÁ, V. Strict liability as a legal protecting mechanism within the international nuclear liability regime (2020), Czech Yearbook of Public and Private International Law , pp. 358–369. 25 Article 1 (2)(f) of the Rome II regulation: “The following shall be excluded from the scope of this Regulation: … (f) non-contractual obligations arising out of nuclear damage; …”

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