CYIL vol. 14 (2023)

CYIL 14 (2023) PROTECTION OF NUCLEAR POWER PLANTS IN INTERNATIONAL ARMED CONFLICT extreme, one could argue that after shutting down its reactors, even Zaporizhzhia moved outside the scope of the article as it did not produce any electricity for certain periods of time. When looking at the wording in other authentic languages, both French and Spanish refer more generally to what could be understood as ‘nuclear power plants for the production of electric energy’ (‘les centrales nucléaires de production d’énergie électrique’ , ‘las centrales nucleares de energía eléctrica’) . The wording in Russian can be directly translated as ‘nuclear power plants’ ( ‘ атомные электростанции’ ). 43 None of these understandings require the NPP to be in operation. 44 In case of doubts, the provision must also be interpreted in its context and in light of its object and purpose. 45 The primary aim of Art 56 API is to safeguard the civilian population from dangerous forces contained in certain facilities that could get released in case of an attack and cause severe collateral damage. 46 However, NPPs can still release radiation even if they do not generate electricity. As the purpose of Art 56 is the protection of civilians from dangerous forces, the question of whether or not are NPPs still producing electricity is thus irrelevant. 47 Based on this interpretation, NPPs are protected by Art 56 regardless of their operational status, as long as they can still release radiation in case of damage to them. Because of the strict wording, the protection does not regrettably extend to other facilities handling nuclear material. 2.2.3 Exemption from application Even if the scope of Art 56(1) is met, the protection is not absolute. Paragraph 2 provides an exception to the rule: 2. The special protection against attack provided by paragraph 1 shall cease: (…) (b) for a nuclear electrical generating station only if it provides electric power in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support; 48 Accordingly, the exemption applies if two requirements are met. Firstly, the NPP must provide ‘electric power in regular, significant and direct support of military operations of the adversary’. The issue that quickly comes to mind is that the electricity produced by NPP serves primarily for civilian purposes during peacetime, which is even more apparent with a facility as large as Zaporizhzhia. Should, in times of war, the electricity be distributed to the military, it would still probably constitute a mere fraction of the overall energy produced, provided that the party controlling the site does not cut off the rest of the supply. The interwoven electricity distribution between civilian and military destinations thus further complicates the evaluation of what then is a ‘regular, significant and direct support of military operations’. Yet, the cumulative conditions set the threshold significantly higher than the one 43 Art 56(1) API. 44 Morgandi and Betin (n 3). 45 Vienna Convention on the Law of Treaties (Vienna, 23 May 1969) 1155 UNTS 331, entered into force 27 Jan 1980 (‘VCLT’), Art 31(1). 46 Diplomatic Conference (n 18) Volume XIV CCDH/III/SR.18, 154 para 16. 47 Morgandi and Betin (n 3). 48 Art 56(2) API.

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