CYIL vol. 14 (2023)

JAN MAIS CYIL 14 (2023) Although the given examples demonstrate some recourse to a more eased understanding of protection given to NPP, this does not automatically lead to the change of general rule. The VCLT presupposes that ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’ shall be taken into account in the interpretation of the treaty. 81 Indeed, not necessarily every party to a treaty must have individually engaged in the practice, as it suffices that inactive parties should have accepted the practice set by other parties. 82 However, this is not simply a case of Art 56 as there is a second group of parties that adhere to the absolute meaning of the provision, which protects the facilities regardless of their use. The explicit adherence to the wording of API can be found in military manuals of Canada or New Zealand. 83 Finland likewise favours this broad protection. 84 Given this division, the Art 56 API must be understood as protecting NPP regardless of their use. Conclusion As proven by the Russian attack on and consequent occupation of Zaporizhzhia, the discussions on the legal protection of NPPs during an armed conflict are no longer just theoretical exercises. NPPs present the IHL with a rather unique situation. The pervasive threat of cataclysmic consequences creates a set-up in which the humanitarian imperative is so weighty that it strives to preclude any attack on the facility. Such humanitarian need is reflected by the multi-layered legal framework ensuring NPPs’ protection. Any considered attack must first follow a legitimate military objective as required by the principle of distinction. Should this protection fail, the considered attack still needs to cope with special protection granted by Art 56 API, and even where this would fail, there is still a broad safety net comprised of general IHL rules, primarily the principles of precaution and proportionality. With the need to fulfil all these conditions, the scenario in which the recourse to an attack on an NPP would be legal is, in practice, hardly conceivable. Yet still, the expected cornerstone of this framework –– protection of works and installations containing dangerous forces under Art 56 API –– appears to be crumbling as it suffers the usual anxiety of international law. On one hand, it ambitiously aims to establish objective prohibition of attacks on the works containing dangerous forces. On the other, it faces challenges due to the restraint encountered during the drafting of the API, as the involved States wished to keep some doors open, resulting in a text that is hardly workable. Such settings leave us with an ambitious provision that fails to secure its goal due to its clumsiness. The ambiguity of what ‘several losses’ are, how to assess the risk of release of dangerous forces, or the inconsistency of the exceptions, form only some of the many grey areas, which provide the parties longing to attack NPPs with a leeway to interpret the rules for its benefit. 81 Art 31(3)(b) VCLT. 82 DÖRR, O., ‘Art 31. General rules of interpretation’ in DÖRR, O. and SCHMALENBACH, K., (eds), Vienna Convention on the Law of Treaties: A Commentary (2nd edn, Springer Berlin, 2018) 599. 83 Canada, The Law of Armed Conflict at the Operational and Tactical Levels , Office of the Judge Advocate General, 13 August 2001, para 444.3; New Zealand, Manual of Armed Forces Law , DM 69 (2nd ed) Vol 4 (2017), para 14.9.4.b. 84 Finland ‘Statement before the Sixth Committee of the UN General Assembly’ (13 October 1977) UN Doc A/C.6/SR.17 para 19.

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