CYIL vol. 14 (2023)

CYIL 14 (2023) VIENNA CONVENTION ON CIVIL LIABILITY FOR NUCLEAR DAMAGE … about the consequences of an attack on a nuclear facility was being expressed particularly in the context of terrorism. Although some studies show that nuclear reactors would be more resistant to attacks by an aircraft crashing into an NPP than virtually any other civil installations, 11 the risk in situations of armed conflicts is severe. While main NPP structures are robust, the 2001 terrorist attacks in the USA did lead to increased security requirements and plants were required to install barriers, bulletproof security stations, and other physical modifications. Switzerland’s Nuclear Safety Inspectorate reported in 2003 that the danger of any radiation release from such a crash would be low for the older plants and extremely low for the newer ones. 12 The results of these studies are relevant also in the context of armed hostilities, as an NPP could, although in violation of the rules of international humanitarian law (IHL), be damaged intentionally, or incidentally. The destruction of the Nova Kakhovka dam in Ukraine on 6 June 2023, regardless of the determination of responsibility, 13 proves how damage to critical infrastructure can plunge entire communities into despair and devastate civilian lives. 14 This article proceeds with presenting the strict limits imposed by IHL to protect works and installations containing dangerous forces, including NPPs, against the danger of hostilities. Due to the grave risks from the release of the dangerous forces they contain, IHL affords special (heightened) protection to NPPs. The purpose of this detailed system of protection is to avoid NPPs become battlegrounds or are incidentally damaged due to hostilities, imposing obligations on all parties to armed conflict to refrain from attacking them, and to avoid as much as possible any action that would expose them to attack, including locating military objectives at or in the vicinity of such facilities. The focus is then devoted to analysis of Article IV(3)(a) of the Vienna Convention on Civil Liability for Nuclear Damage 15 (VCCLND), given that this convention attracted a significant number of Central and Eastern European States, including the Russian Federation and Ukraine. 16 The Convention on Third Party Liability in the Field of Nuclear 11 For example, the studies say that penetrating (even relatively weak) reinforced concrete requires multiple hits by high speed artillery shells or specially-designed “bunker busting” ordnance – both of which are well beyond what terrorists are likely to deploy. In the 1980s in the USA, at least some plants were designed to take a hit from a fully-laden large military transport aircraft and still be able to achieve and maintain cold shutdown. Ibid. 12 Ibid. 13 See MILANOVIĆ, M. The Destruction of the Nova Kakhovka Dam and International Humanitarian Law: Some Preliminary Thoughts (2023) EJIL: Talk! https://www.ejiltalk.org/the-destruction-of-the-nova-kakhovka dam-and-international-humanitarian-law-some-preliminary-thoughts/ [accessed 1 July 2023]. 14 See Destruction of the Nova Kakhovka dam: humanitarian needs and Red Cross response https://www.icrc.org/en/ document/destruction-nova-kakhovka-dam-humanitarian-needs-and-red-cross-response [accessed 1 July 2023]. 15 The Vienna Convention on Civil Liability for Nuclear Damage (adopted 21 May, 1963, entered into force on 12 November 1977), INFCIRC/500. 16 This paper does not discuss the regime under the Convention on Third Party Liability in the Field of Nuclear Energy or the so called Paris Convention (adopted 29 July 1960), as amended by the Additional Protocol of 1964 (adopted 28 January 1964, in force since 1 April 1968) and by the Protocol of 1982 (adopted 16 November 1982, in force since 7 October 1988), as the two States in focus for this discussion are not parties to these treaties. It is nevertheless noteworthy, that the Paris regime provides similar, but more detailed and slightly different exoneration provisions, and some States submitted reservations stating that the operator shall be liable for damage caused by a nuclear incident directly due to an act of armed conflict, hostilities, civil war, insurrection or a grave natural disaster of an exceptional character (e.g., Germany and Switzerland – see https:// www.iaea.org/sites/default/files/22/06/liability_reserv.pdf [accessed 21 June 2023]).

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