CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ NUCLEAR LIABILITY: OLD FEARS AND NEW PERSPECTIVES ON THE CONCEPT … and in Art. 3 (a) of the Paris Convention. 7 Therefore, pursuant to the definition of the first- generation conventions (provided that the condition of causation between the damage and radioactive properties within legal definition of the provided nuclear materials is fulfilled cumulatively), a nuclear damage is considered to be a loss of life or a personal injury, or damage to or loss of property. Nuclear liability conventions refer to personal injury and property loss without determining the exact scope, nature and extent of damages, whereas precise definition of the loss of life, personal injury and loss of or damage to property is left to a national doctrine or legislation of the contracting states of the Vienna Convention or the Paris Convention. Although the term „loss of or damage to property“ which covers proprietary rights and related proprietary interests affected by a nuclear incident, does not cause any specific interpretation problems, the mechanism of compensation of personal injury as nuclear loss raises more questions than answers. For example about whether the personal injury can be compensated where direct negative effects of a nuclear incident are indiscernible in spite of an undisputed exposure of the person to ionizing radiation, 8 about the problem of standard of probability of (delayed) illness development as a direct long-term consequence of radiation exposure, about whether the general rules on presumption may be adequate in cases of establishing causality between the illness developed by a person and its exposure to radiation 9 or about whether non-pecuniary damage (psychical harm occurring in the absence of any physical injury ) related to exposure to ionizing radiation or to the nuclear accident as such are to be recovered under the head of damage to health in relation to primary victims (e.g. renouncement from having children or termination of pregnancy reasoned by fear of child defects caused by radiation) or to the secondary victims (non-material damage caused by death of a relative) or on the contrary, the physical injury would be the essential element of personal damage. 10 All these questions can apparently be answered adequately only by referring to general concepts of general tort law. In accordance with a restrictive view of nuclear damage in the first-generation conventions, other damages (except for personal damage and damage to property) can only be considered properties of nuclear fuel or radioactive products or waste in, or of nuclear material coming from, originating in, or sent to, anuclear installation; (ii) any other loss or damage so arising or resulting if and to the extent that the law of the competent court so provides; and (iii) if the law of the Installation State so provides, loss of life, any personal injury or any loss of, or damage to, property which arises out of or results from other ionizing radiation emitted by any other source of radiation inside a nuclear installation. 7 The operator of a nuclear installation shall be liable, in accordance with this Convention, for: 1. damage to or loss of life of any person; and 2. damage to or loss of any property other than – the nuclear installation itself and any other nuclear installation, including a nuclear installation under construction, on the site where that installation is located; and – any property on that same site which is used or to be used in connection with any such installation, – upon proof that such damage or loss (hereinafter referred to as “damage”) was caused by a nuclear incident in such installation or involving nuclear substances coming from such installation, except as otherwise provided for in Article 4. 8 ŁOPUSKI, J. Liability for nuclear damage – an international perspective. Reflections on the revision of the Vienna Convention . Warsaw: National Atomic Energy Agency, 1993, p. 26. 9 PELZER, N. In: LUKES, R. Reformūberlegungen zum Atomrecht . Köln: Carl Heymanns Verlag, 1991. 10 ŁOPUSKI, J. Liability for nuclear damage – an international perspective. Reflections on the revision of the Vienna Convention . Warsaw: National Atomic Energy Agency, 1993, p. 27.

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