CYIL vol. 11 (2020)

CYIL 11 (2020) STRICT LIABILITY AS A LEGAL PROTECTING MECHANISM … On the other hand, the term “hostility” or better say “act of hostility” is rather ambiguous and can be interpreted in several ways, which indeed does not contribute to legal certainty based on the principle of eliminating an extensive interpretation of liberation grounds. Therefore, pursuant to the rules of interpretation of the Exposé des motifs, proof of an act of “hostility” can liberate the operator from liability only if the act has been carried out in direct connection with a hostility of a political nature, such as civil war or insurrection. This (albeit rather teleological) interpretation also justifies the conclusion that the terms “armed conflict, act of hostility, civil war or insurrection” are to be interpreted in the sense of the substantive definition of the term international or national armed conflict. 16 In the light of the attacks on the World Trade Center in New York and in connection with the growing phenomenon of terrorism, there is a discussion relating to the operator’s liability for nuclear damage, whether the act of nuclear terrorism establishes the nuclear operator’s liability for such damage or it is a reason for his liberation. Whereas the existing international conventions do not expressis verbis include the acts of terrorism among the liberation grounds and from the formulation of the relevant provisions we may assume the enumerative calculation of these grounds, the possibility of liberation of the nuclear facility operator might therefore be considered only by subsumption as an armed conflict, or as an act of hostility. On one hand the theory of public international law as well as the doctrine of nuclear law is more inclined to the view that the terms armed conflict and acts of hostility do not imply acts of terrorism, although on the other hand it is necessary to admit that the process of differentiation between them is rather difficult and requires careful assessment of all circumstances of a given case. 17 In terms of the very development of the term armed conflict, jurisprudence has experienced a shift from the classical understanding of armed conflict as armed activities solely between states to armed conflicts of a national character 18 and in which insurgents fight against the official government to seize power or to create a new State. 19 In 1949, a legal standard was established also for armed conflicts of a national character, which indicated that terrorist movements (and thus acts of terrorism) differ from “legitimate” armed movements mainly in failing to comply with humanitarian law and customary law of war. 20 The refusal to identify armed conflict with the act of terrorism subsequently results in the inadmissibility of the act of terrorism as a liberation ground of the nuclear facility operator. 16 A similar interpretation was reached by the International Expert Group (INLEX) at its fourth meeting (7-11 February 2005). 17 KOCH, Bernard A. – ABRAHAM, Kenneth S. ‘ Terrorism, tort law and insurance: a comparative survey ’. (Springer Verlag 2004). 18 The number of armed conflicts, which do not have the international character of armed activity between states, increased rapidly after the Second World War. 19 See WOYKE, Wichard (ed) Handbuch Internationale Politik, Bundeszentrale für politische Bildung, (Bonn, 7th ed., 1998) 221-239. 20 CRENSHAW, Marthe ‘Terrorism, Legitimacy, Power. Middletown’(1983) To reference see SCHEU, Harald Christian, ŠULCOVÁ, Zuzana ‘Mezinárodněprávní aspekty boje proti terorismu. Právní aspekty terorismu.’ [International legal aspects of the fight against terrorism. Legal aspects of terrorism], Univerzita Karlova v Praze, Evropské informační středisko, Informační středisko pro otázky boje proti terorismu Praha 2004) vol 1, 6.

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