CYIL vol. 14 (2023)

VASILKA SANCIN CYIL 14 (2023) The five basic principles for the protection of the Zaporizhzhia NPP that Director General Grossi established on 30 May 2023 at the UN Security Council, further state that there should be no attack from or against the plant and that it should not be used as storage or a base for heavy weapons – multiple rocket launchers, artillery systems and munitions, and tanks. The reports document that Russian forces ‘attacked’ the Zaporizhzhia nuclear power plant, shelled and damaged the training centre and administrative building inside the plant and prevailed against the Ukrainian forces attempting to defend it. So far, the shelling of the Zaporizhzhia NPP has not caused a release of radioactive materials, but one wonders if the Russian forces, at the time of the attacks, were really able to determine with a high degree of certainty that a radioactive release was not conceivable. 70 An interesting and difficult question has however been raised, on the possibility that the same might apply to the Ukrainian forces defending these installations, given that IHL does not distinguish between ‘attacks’ in the course of offensive or defensive operations, thus questioning the limits of an entitlement of Ukrainian forces to defend the NPP. Certainly, some defensive measures are permissible under Article 56(5) API, but the language with its references to defensive ‘installations’, and ‘weapons capable only of repelling hostile action’, is far from straightforward, given that the purpose of the overriding obligation, in the case of NPPs, is to prevent the release of nuclear radiation. The defence of the Zaporizhzhia NPP by Ukrainian forces, which involved a firefight and artillery, raises the complicated question of what a defending force is legally permitted to do. Ukraine has designated Energoatom as the operator of the Zaporizhzhia NPP. Thus, in principle, any liability for nuclear damage caused by a nuclear incident would be channelled to Energoatom. However, due to the exoneration clause in Article IV(3)(a), Energoatom could be exonerated from liability for a nuclear incident, as long as a nuclear incident is ‘directly due’ to an act of armed conflict, hostilities, civil war, or insurrection. How to assess causality and what exactly is intended by ‘directly’ and how to demonstrate this, remains unclear. What however seems to be clarified by the 1997 Protocol, amended paragraph 3, is that the operator bears the burden of proof that ‘the nuclear damage is directly due to an act of armed conflict, hostilities, civil war, or insurrection’. Incidents that are directly caused by acts of violence on or near a NPP, for example an artillery strike seem to fall squarely within the required standard. Morgandi and Betin, however, wonder if, for example, Russian forces interfere with the safe monitoring of the nuclear power plants or are simply negligent in this regard – would Energoatom’s liability still be exonerated? 71 One thing is certain, the answers to these questions could be sought before Ukrainian courts, but could, hypothetically, individuals seek remedies also before Russian courts, arguing that Russia has occupied and de facto operationally controls the Zaporizhzhia NPP, and consequently that Russia’s obligations under the VCCLND apply extraterritorially? Furthermore, Article XVIII VCCLND states that ‘[t]his Convention shall not be construed as affecting the rights, if any, of a Contracting Party under the general rules of public international law in respect of nuclear damage.’ Responsibilities of Russia, as an occupying power, for any potential nuclear damage in Ukraine and in third States, under

70 See also Morgandi, T. and Betin, B., supra 4. 71 Ibid.

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