Zaporizhzhia Nuclear Power Plant: Ownership and Expropriation of State Assets under International Law

Written by Juan Pablo Hernández Páez
The Treaty Examiner, vol. 3, issue 1
7 June 2023

All opinions expressed in this article are exclusively the author’s own and do not reflect the position of any organization.

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As a result of its illegal and unjustified aggression against Ukraine, the Russian Federation captured the Zaporizhzhia Nuclear Power Plant (NPP) in March 2022. As the war has raged on, the Zaporizhzhia NPP has become vulnerable to shelling and strikes, which has raised concerns that this situation risks the release of “dangerous forces” in a manner inconsistent with the provisions of Articles 57(1) and 58(c) of Additional Protocol I, Article 13(1) of Additional Protocol II and the corresponding customary international humanitarian law. The International Atomic Energy Agency (IAEA) itself has raised alerts regarding the physical integrity, safety and security of the nuclear station ever since its capture by the Russian army.

In an attempt to formalize its control over the power station and as part of its annexation of the Zaporizhzhia, Kherson, Lugansk and Donetsk oblasts, the Russian Federation declared on 5 October 2022 that it would “take into federal ownership the facilities of the Zaporizhzhia nuclear power plant and other property necessary for the implementation of its activities.” This move has been criticized by the international community and the IAEA as a breach of international law. The IAEA particularly declared that it considered the Zaporizhzhia NPP to be a Ukrainian facility and its ownership to lie with Energoatom, the Ukrainian State enterprise that legally operated it before the Russian invasion (x x). The purpose of this post is to analyze the legal situation of the Zaporizhzhia NPP, first under the lens of international humanitarian law (IHL) and later under lex generalis, to determine the consequences that flow as a matter of international law.

IHL and the international law of occupation

As the international armed conflict between Ukraine and Russia rages on, the situation of the Zaporizhzhia NPP falls to be determined first in accordance with IHL as lex specialis, as was recognized by the International Court of Justice (ICJ) in its 1996 Nuclear Weapons advisory opinion (para. 25). The special law applicable to this question is the international law of occupation, as contained in the IV Geneva Convention 1949, Additional Protocol I, the Hague Regulations 1907 and related customary IHL. The conditions for this law to apply are set out in Article 42 of the Hague Regulations 1907, which comprise the so-called “effective control test”. The elements are the lack of consent in respect of the presence of foreign forces in the territory in question, the ability of those forces to exercise authority in that territory, and the corresponding inability of the territorial State to exert that authority. In respect of some portions of Ukrainian territory, these conditions are met for the Russian invaders.

In accordance with this law, the Occupying Power is under the obligation to adopt measures to restore and maintain public order and civil life in the occupied territory. This duty, however, finds its limits in the nature and underlying principles of occupation under IHL. The ability of the occupying State to adopt measures obeys the need to protect the civilian population in the area. Occupation is intended as a temporary situation which does not confer on the Occupying Power any sovereign rights over the occupied territory. Indeed, the acquisition of territory through military occupation cannot be recognized and constitutes a blatant violation of the prohibition of the threat or use of force under international law, as codified in Article 2(4) of the United Nations Charter. This was recognized in the UN General Assembly’s resolution 2625 (XXV) of 24 October 1970 containing the so-called Friendly Relations Declaration, which reflects custom as declared by the ICJ (1986 Nicaragua case para. 188) and the General Assembly.

Hence, the occupying State is under an obligation not to adopt measures to render permanent its control over the territory. Russia’s attempted annexation of Kherson, Zaporizhzhia, Donetsk and Lugansk thus violate international law. But its attempt to assume legal ownership over the Zaporizhzhia NPP also contravenes it for a related, albeit not identical, reason.

Under customary IHL, the power of the occupying State over property in the occupied territory is limited. To start, private property must be respected and is immune from expropriation. Confiscation is generally prohibited but it may be performed on a limited basis and for certain categories of assets, if military necessity requires it and subject to restoration and compensation after the war ends. Customary IHL is relatively more permissive in respect of movable public property, which may be confiscated if it is being used for military operations. Nonetheless, immovable property is a different story. It cannot be expropriated by the occupying State. Under customary international law, the Occupying Power is only its administrator and must discharge that role “according to the rule of usufruct”. As Hague Regulations Article 55 says, the Occupying Power must “safeguard the capital of these properties”, i.e., the Occupying Power may use and reap the benefits (usus fructus) of the property but is under a duty to do so responsibly to safeguard its physical integrity and productivity. Most importantly, the fact that international law subjects this power to the “rule of usufruct” means a fortiori that the Occupying Power cannot legally claim ownership over the asset.

These considerations would appear to turn on the status of the Zaporizhzhia NPP. The nuclear station is owned and operated by Energoatom, which is a State enterprise. In accordance with Ukrainian municipal law, Energoatom was created by an Ordinance of the Cabinet of Ministers of Ukraine dated 17 October 1996, to produce electric energy, ensure the safe operation and increase the efficiency of Ukraine’s NPPs, and keep an uninterrupted supply of energy to the Ukrainian population. These are clearly sovereign functions in line with the ICJ’s 2023 Certain Iranian Assets Judgment (paras. 33-73). Consider also Articles 4 and 5 of the International Law Commission’s (ILC) Articles on the Responsibility of States for Internationally Wrongful Acts. It would therefore appear that the Zaporizhzhia NPP is to be treated according to the rules applicable to public property. Russia’s attempt to assume ownership of the Zaporizhzhia power station therefore contravenes IHL.

The situation under the general law

The status of the law concerning State ownership is much less clear outside the context of IHL. As pointed out by Tzeng (2023), although States have a complete and general right to territory, their right to property is much more limited. This however does not detract from the conclusion that Russia’s attempt to assume ownership over the Zaporizhzhia NPP is internationally wrongful and must be reversed. Beyond a general principle of property which has been proposed by other scholars, this author believes that this conclusion can derive from other well-established rules of international law that bear upon this question:

First, the Russian aggression against Ukraine is widely considered to constitute a blatant breach of the prohibition on the use of force codified in UN Charter Article 2(4). This is a wrongful act of overwhelming gravity. The attempted and illegal annexation of Kherson, Zaporizhzhia, Lugansk and Donetsk confirms this. Thus, under the law of responsibility, Russia is duty-bound to make reparation for the injury caused to Ukraine, including the restitution to the status quo ante to the extent that this is possible (Article 35 of the ILC Articles on State Responsibility). This undoubtedly includes the duty to completely, immediately and unconditionally withdraw from Ukraine’s territory within its internationally recognized borders; turn control of the Zaporizhzhia NPP over to Ukraine, its rightful owner; and reverse the conferral of ownership to Russian entities.

Second, as stated above, it is a Ukrainian State enterprise that is tasked by internal law to operate the NPP. The language of the Ordinance establishing Energoatom makes it clear that it exercises State functions. Thus, Russia’s interruption of these functions and forceful assumption of ownership and control over the Zaporizhzhia plant contravene the customary rule of non-intervention. The constitutive elements of this breach are clear in this case, in line with the ICJ’s 1986 Nicaragua Judgment, since the Russian Federation’s aggression fulfils the element of coercion.

Third, as a State asset, the Zaporizhzhia NPP is immune from execution and measures of constraint under international law. If Russia is not entitled to attach, seize or control the disposal of this asset without Ukraine’s waiver and, even then, only for the limited purpose of execution in connection with court proceedings, then a fortiori it certainly is not entitled to fully expropriate it for any general purpose, let alone ownership and regular operation. The right of States to expropriate private assets in the investment context does not apply here for a myriad of self-evident reasons, not the least of which is that this right is inapplicable to State assets like the Zaporizhzhia NPP, and in any event Russia is not lawfully entitled to exercise any sovereignty with respect to the nuclear station or the territory on which it lies.

Fourth, any right of ownership or operation claimed with respect to the Zaporizhzhia NPP derives from Russia’s violation of Article 2(4) of the UN Charter. Under the ex injuria jus non oritur principle recognized by the ICJ in the Gabčíkovo-Nagymaros Project case, Russia is not entitled to derive any rights from this initial injustice.

Fifth, under Article IV(1) of the Non-Proliferation Treaty (NPT) all parties to the Treaty have the “inalienable right” to develop research, production and use of nuclear energy for peaceful purposes. Both Russia and Ukraine are parties to the NPT. Russia’s forceful assumption of control and ownership over the Zaporizhzhia NPP, the largest nuclear station in Europe and one of Ukraine’s most important NPPs, severely impairs Ukraine’s rights under Article IV(1).

Concluding thoughts

The Russian Federation’s decision to transfer ownership and control of the Zaporizhzhia nuclear station to its own entities is but one item in a long list of internationally wrongful acts deriving from its invasion of Ukraine since 24 February 2022. Nonetheless, its importance cannot be overlooked. The Zaporizhzhia plant will remain at risk for as long as there is military presence in the area, and the dangers are not negligible. It flows from all pronouncements that have been made since the invasion started, and the rules of international law at play, that no State should recognize Russia’s decision to expropriate the Zaporizhzhia NPP and the consequences of it. It is the shared responsibility of the international community to cooperate to put an end to the illegal aggression against Ukraine, including collaborating with the IAEA to ensure the physical integrity, safety and security of the nuclear station.

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PIE DE IMPRENTA: Juan Pablo Hernández (editor-in-chief), Guatemala, 7 June 2023.

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