CYIL vol. 14 (2023)

CYIL 14 (2023) VIENNA CONVENTION ON CIVIL LIABILITY FOR NUCLEAR DAMAGE … the Hague Regulations seem most obvious, however, other customary international law principles, including the ‘no harm’ rule could be invoked for establishing responsibility of the Russian Federation under international law. 72 4. Conclusions The Russian forces’ seizure and occupation of the Chernobyl and Zaporizhzhia NPPs have given rise to important, yet mainly underexplored questions about the way in which international law regulates military activities involving NPPs and liability for potential consequential nuclear damage. While IHL establishes an elaborate framework governing the protection of NPPs during armed conflict and restricts military operations at NPPs, it does not ban them entirely, resulting in insufficient clarity as to what offensive and, most importantly, defensive operations might still be permissible. Such uncertainty contributes to the frustration and brings about serious risks of immense harm, when these issues are being decided in the midst of a war zone. On the other hand, the Vienna nuclear liability regime produces further ambiguities when addressing a nuclear incident caused by an act of armed conflict or hostilities, as it fails to provide sufficient clarity on when exactly the operator’s exoneration from liability applies. Just like for much of public international law, one of the characteristics of these international legal regimes is the intersection between law and politics. 73 The analysis, exposing the existing gaps of IHL and nuclear security legal framework, demonstrates that neither of the legal branches provide comprehensive support for nuclear security nor satisfactory resolve issues of liability for damages incurred by nuclear incidents resulting from the effects of armed hostilities on NPPs. This reinforces the need for a mutually supportive application of IHL and nuclear security legal framework during situations of an armed conflict. Moreover, constant shifts in the international security challenges in an ongoing armed conflict, call for the establishment of a sufficient and compact legal framework capable of comprehensively addressing the serious nuclear risks or damages. Finally, prevention, particularly in the context of nuclear security-armed conflicts nexus and potential damage to the NPPs during armed hostilities, is a key obligation. In this respect, the concerned international community is correct in employing all possible tools of deterrence. At the core of deterrence are threats, explicit or implicit, to prevent a potential foe from doing something undesirable, either using deterrence by denial (if the deterrence attempt is successful, the deteree believes that its goals would not be achieved and would consequently respect its obligations), or using deterrence by punishment (through an attempt to convince the deteree that even if the latter did achieve its goals, it would pay a prohibitive price to do so). 74 Both forms of deterrence are not mutually exclusive, and are more potent if applied cumulatively, thus in addition to the UN mechanisms, the IAEA, 75 ICRC, and other 72 See also Morgandi, T. and Betin, B., supra 4. 73 Boas, G. Public International Law, Contemporary Principles (2023) Edward Elgar, Cheltenham, Northampton, p. 47. 74 JORDAN, D., KIRAS, J. D., LONSDALE, D. J., SPELLER, I., TUCK, C. and WALTON, C., D. Understanding Modern Warfare (2016) Cambridge University Press, p. 413. 75 The IAEA Director General on 7 July 2023 reiterated the importance of the IAEA team being able to check all parts of the Zaporizhzhia NPP to monitor full compliance with the five basic principles for protecting

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