LEGAL ASPECTS OF AN INTERNATIONAL NUCLEAR FUEL CENTER

Transcription

1 LEGAL ASPECTS OF AN INTERNATIONAL NUCLEAR FUEL CENTER LLM Law & Technology Master Thesis Julien Fournié Student number: ANR: Supervisors: Pr. Han Somsen Pr. Jonathan Verschuuren

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3 TABLE OF CONTENTS Introduction. 1 PART I: NUCLEAR LANDSCAPE. 5 Chapter 1: Nuclear technology : Front-end of the cycle 5 1-2: Use of the fuel and back-end of the cycle : Current technological concerns. 7 Chapter 2: Nuclear policies 8 2-1: Risk assessment : Organization overview Chapter 3: Nuclear Law : The basis of international nuclear Law : Proliferation control PART II: CORE OF THE TOPIC. 17 Chapter 4: The International Nuclear Fuel Center : Need of an internationalization of the nuclear fuel cycle : Existing international centers : Different kinds of Multilateral Nuclear Approaches projects : Description of the chosen concept of International Nuclear Fuel Center.. 21 Chapter 5: Establishment of the International Nuclear Fuel Center: Legal. Architecture 5-1: Founding Treaty : The Territorial Sovereignty Agreement : Specific Safeguards Agreements : The State-Operator Agreements : The Consortium Agreement : The Management Agreement. 31 PART III: SPECIFIC LEGAL ISSUES 32 Chapter 6: Environment and safety : Basis of the INFC functioning regarding environment and safety : Activities of the INFC implying transboundary movement of nuclear materials : Environmental impact 36 Chapter 7: Enrichment and reprocessing business. 39 Uranium processing contracts Legal scheme of the INFC business.. 41 International requirements regarding nuclear materials 42 Chapter 8: Technology transfers

4 Data protection.. 44 Intellectual Property management. 45 Conclusion Bibliography. 49 Acknowledgments 53 The LLM Law & Technology is offered by the Tilburg Institute for Law, Technology and Society (TILT). The Master s programme is focused on the legal framework of new technologies, such as biotechnologies, nanotechnologies, communication technologies, and intellectual property. TILT is a research institute of the Tilburg University. TILT s research activities cover a wide area related to the regulation of technology. In particular, research is centred on the interaction between law, technology, and society. The focus of TILT research includes areas such as privacy, security, autonomy, e-commerce, e-government, e-health, identity management, anonymity, cybercrime, DNA forensics, genetics regulation, neurotechnologies, development and justice, biotechnology and the environment, nano-technologies, intellectual property law and innovation, and general questions of regulation related to technology. Cover page picture: website ICON Etc. January 2011 julienfourni @yahoo.fr

5 LEGAL ASPECTS OF AN INTERNATIONAL NUCLEAR FUEL CENTER Master Thesis Julien Fournié, LLM Law & Technology Today, the United States' stockpile of atomic weapons, which, of course, increases daily, exceeds by many times the explosive equivalent of the total of all bombs and all shells that came from every plane and every gun in every theatre of war in all of the years of World War II. A single air group, whether afloat or land-based, can now deliver to any reachable target a destructive cargo exceeding in power all the bombs that fell on Britain in all of World War II. Those sentences are from the United States President Dwight D. Eisenhower, in his famous speech Atoms for Peace of the 8 th of December The United States were at this time stockpiling impressing amounts of nuclear weapons. Since this speech, other nations have also acquired nuclear weapons, increasing the concerns about the dangers of this technology. The use of just a part of the current world's nuclear weapons stockpile would be sufficient to provoke a worldwide nuclear winter 1. With the Atoms for Peace initiative, the United Sates proposed an international cooperation between States to use the nuclear technology for civilian purposes, in order to supply energy to populations. In reality, the nuclear technology is a perfect example of what is called dual-use technology, that is to say a technology which can be used as much for pacific than warlike aims. And notwithstanding all the fears related to nuclear power, this energy seems currently incontrovertible. Indeed, today the humankind has to face up to another risk, more silent than an atomic war but considered equally dangerous. Global warming seems, with reason, the major and most urgent environmental concern of governments. Greenhouse gases emissions lead to an increase of atmospheric temperatures and could provoke global changes in the Earth climate and global equilibrium. Specialists agreed today on the fact that human activities and their carbon emitting energies are «very likely» the cause of the XXth century temperature increase 2. In this regard, an overview of the actual world energy mix and the part of carbon emitting sources within this mix is eloquent. According to the International Energy Agency, in 2008 more than 81% of the world total energy supply came from carbon emitting sources: oil, gas, coal or peat 3. The use of those energies leads to warming the atmosphere, with catastrophic effects listed in the aforementioned report from the IPCC (sea level rise, precipitation changes, increase of extreme climatic events, extinction of up to one third of species, negative impact on human health and agricultural resources...). Those risks are now well known by policy makers. In 2006, Nicholas Stern, committed by the United Kingdom Government, estimated that consequences of global warming could lead to a loss of up to 20% of world GDP and is a major threat for our societies 4. More recently, this economist said that according to new scientific evidence, his 2006 report underestimates the impact of greenhouse gases 5. He today recommends to reduce the world total emissions of greenhouse gases by 50% before 2050 in order to avoid the 1 A. Robock, L. Oman, G.L. Stenchikov, Nuclear winter revisited with a modern climate model and current nuclear arsenal: still catastrophic consequences, Journal of geophysical research, vol.112, Intergovernmental Panel on Climate Change, Climate change 2007: Synthesis report (IPCC, Geneva, 2007) 3 IEA, Key World Energy statistics 2010 (IEA, Paris, 2010) 4 Nicholas Stern, Stern Review Report on the Economics of Climate Change (HM Treasury 2006) 5 The Guardian, 30 March

6 worst consequences. Considering development of countries having a numerous population and a legitimate desire for economic growth together with well-being increase, which requires energy, this goal seems hard to reach. Another obvious rationale to give up carbon emitting sources of energy is that they are unsustainable. According to studies on oil resources, the peak oil (point in time since which the production of oil will decrease) could arise in less than 10 years 6. All our infrastructures being based on oil (one third of world total energy supply in 2008), this lack of energy will cause major disorders if no serious action is implemented quickly. Resources of gas and coal are wider but those sources are also not satisfying, as being carbon emitting (with an especially high level of emissions by coal). Carbon emitting energy sources are also always less accepted day after day by citizens, for those rationale and following major disasters like recently in the Mexico Gulf. Indeed oil and coal are not only polluting atmosphere but can have other negative impacts on environment. For all those reasons, and because variations of prices of hydrocarbons are still a concern, an increasing number of States and governments undertook to seek out other ways to produce efficiently large amounts of energy. The urge of the problem does not really allows to look at technologies with uncertain development, and the search for a powerful, mature, industrially available and non carbon emitting energy source points out the nuclear energy. Despite of high capital costs, nuclear energy is a competitive energy source 7 and a power plant, fueled by enriched uranium, is less dependent of fuel price than a fossil fuel plant. Indeed uranium prices are known as being not subjected to unforeseeable important variations and nuclear fuel has the highest power output ( times superior to coal). Today, uranium and nuclear power plants provide 5,8% of the world total energy supply. Major producers are, in order of importance: USA (30,7% of world nuclear electricity production in 2008), France (16,1%), Japan (9,4%), Russia (6%), Korea (5,5%) and Germany (5,4%). Uranium ore is shared by several countries in the world, less concentrated than oil. According to the first reference about uranium resource, the Red Book of the Nuclear Energy Agency (NEA, agency of the OECD) and the International Atomic Energy Agency (IAEA), Australia possesses 31% of uranium resources, Kazakhstan 12%, Canada 12%, Russia 9%. South Africa, Namibia, Brazil and Niger each possess 5% of uranium resources 8. Considering the actual consumption of uranium in reactors (2008 consumption rate), the estimated world resources of uranium are sufficient for the next 100 years. In reality, the demand will grow considerably (there are currently about 30 countries considering starting or restarting a nuclear civilian program) and all those resources are not yet available: important mining efforts will be necessary to meet this demand. The exploration costs are supposed to double, and with regards to this fact and the new demand, some analysts foresee a doubling of the uranium price in But even such an increase shall not prevent the nuclear rise. Nuclear industry has also the default to produce hazardous wastes. Among those wastes, some elements (High-Level Wastes or HLW) emit high level radiations during up to several million years. Handling and disposal of High-Level Wastes require high technology and after their neutralization, which can be only temporary, those wastes will still remain dangerous m³ of HLW are 6 Industry Taskforce on Peak Oil & Energy Security, The Oil Crunch, Securing the UK's energy future (ITPOES 2008) 7 World Nuclear Association, The economics of Nuclear Power (April 2010) 8 NEA & IAEA, Uranium 2009: Resources, Production and Demand (OECD, Paris 2010) 9 Nuclear prices to double in next year, says analyst, Nuclear Engineering International, 9 September

7 produced each year in the world 10. But the real immediate, short-term concerns about nuclear energy and uranium resources are not the availability of uranium ore, its price, or even the management of wastes. The States and international community are focused on another issue related to nuclear energy, connected with the speech of Eisenhower: proliferation. The term refers to the spread and the use of nuclear technology to fabricate nuclear weapons. Indeed civilian nuclear technologies can easily be diverted from their initial peaceful purposes and serve to create an atomic bomb. The international community made, and is still making, a lot of efforts to avoid such a spreading of dangerous technologies. Following the Atoms for Peace initiative, the International Atomic Energy Agency has been established in 1957, with the mission to foster the peaceful use of nuclear technology and prevent nuclear weapon proliferation. Under its supervision, nuclear weapon States, that is to say States possessing nuclear weapons and the technology enabling to produce them, and other States ( non-nuclear weapon Sates ) signed the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), opened to signature in 1968 and entered into force on 5 March Nuclear weapon States signatories (USA, URSS, China, United Kingdom and France) undertook not to transfer in any way nuclear weapon technology or devices to other States, and non-nuclear weapon States signatories undertook not to acquire nuclear weapon technology or devices. Inspectors from IAEA are empowered to visit the relevant facilities of States parties to the treaty in order to control their compliance with the provisions of the NPT. The aim of this treaty was to freeze nuclear weapons spreading and limit its legitimate possession to the States already in possession of this technology. Notwithstanding those efforts, other countries who did not signed the treaty acquired nuclear weapon: Pakistan, India and Israel (but Israel never officially confirmed). Some other countries have also signed the NPT and have been in violation with its terms, like Iraq or Syria, but they finally did not acquire the atomic bomb. Some States parties to the NPT are also suspected to be in breach of their commitments, the most current example being Iran. Iran refuses to cooperate correctly with the IAEA inspectors and IAEA rules in order to prove that its nuclear program has no military purpose. Some suspicious traces of highly-enriched uranium (uranium needed to make a bomb) have been found in a facility, and one supposed-to-be research reactor is similar to others used to produce plutonium for a bomb 11. Fearing the emergence of a new nuclear weapon State, the international community has made several proposals to Iran, including the possibility to supply uranium to the country without allowing the mean to use it for a bomb. All those proposals have been refused and Iran does not trust foreign supply for enriched uranium. This crisis, the foreseen growth in nuclear enriched fuel, and the dangers of proliferation when today not only States but also terrorists could be interested by nuclear weapons, led to take a new look at the international nuclear policies. Cooperation is more necessary than ever in order to avoid nuclear risks, and therefore several proposals from nuclear policy-makers arose out. One of those proposals is to create international facilities where uranium could be processed for civilian purposes, opened to any State ready to forgo its own national programs. Those international centers would be monitored by the International Atomic Energy Agency in order to provide the best confidence to the international community. 10 Including used fuel from States having chosen an open cycle. See WNA, Radioactive Wastes Management (June 2009) 11 WNA, Safeguards to prevent nuclear proliferation: Nuclear proliferation case studies (February 2010) 3

8 The topic of this thesis will be to study, for a global survey, the legal aspects of this project of an International Nuclear Fuel Center (INFC) dedicated to international nuclear safety and nonproliferation. The exact research question of my thesis is: what are the legal consequences and the legal needs of an International Nuclear Fuel Center? Such a center, involving several countries and an international agency, would obviously be hard and complex to implement: a large number of legal issues would arise out of its establishment, and functioning. In this thesis, I will try to: - Detect those legal issues and problems - Give responses to those problems This thesis is based on different kinds of written documents. - Legal documents such as treaties, agreements or national legislation - Non-binding regulations and codes of conduct issued by agencies and international committees - Articles and papers of technical nature - Articles and papers from legal publications - Reports of nuclear organizations: companies, companies groups, national agencies or international agencies and organizations - Reports from non-governmental organizations The majority of those documents has been found on Internet and is public. Other documents and know-how especially useful for Part II and Chapter 5 are issued from my studies and internships (in a private company often constituting consortia and in the French Space Agency). I found here some inspiration in documents not related to nuclear activities which were however relevant, like the provisions about the European Space Port in French Guiana. In the first part of this thesis, more factual, I will describe the nuclear energy framework: technical information, organization and policies, international nuclear law. Indeed, the comprehension of those technical aspects and the legal organization of international nuclear industry is compulsory in order to identify the risks of nuclear energy and the necessity of an internationalization of the uranium treatment. In a second part, the International Nuclear Fuel Center itself will be defined and detailed, and I will study its institutional establishment and aspects. Thus the first (and maybe the main) part of the answer to the research question will be given by legal proposals to implement the INFC. Finally, in the third part of the thesis, I will take a look at some specific legal issues inherent to such a facility and its functioning: safety and environment, the business legal aspects, and the technology protection. Those issues are consequential to the establishment studied in the previous part. Of course there are probably more legal problems which could occur in this framework, but I chose those three as being the most important from my point of view. Each of them could be linked to the three aims of the INFC as it will be explained in Chapter 4: environmentally sound management of the cycle (Chapter 6), assurance of supply (Chapter 7) and non-proliferation of hazardous technologies (Chapter 8). There is therefore a necessity to go further in these issues and explore the framework of: nuclear environmental Law, nuclear commerce, and sensitive technology transfers, unless the implementation of the INFC three aims would remain too much vague. 4

9 Chapter 1 Nuclear Technology Chapter 2 Nuclear Policies Chapter 3 Nuclear Law I NUCLEAR LANDSCAPE CHAPTER 1 NUCLEAR TECHNOLOGY Comprehension of nuclear industry and policies requires an overview on the functioning of nuclear fuel: why is this fuel dangerous, why some of those activities are said proliferating, what connection between a power plant and an atomic bomb? The question I intend to answer in this chapter is: what steps of the nuclear fuel cycle are proliferating and a matter of concern? With common sense and in order to present clearly the nuclear fuel cycle, I will follow the uranium life in a chronological way. Nuclear fuel is first extracted from the earth, used, and then will probably return to the earth, sealed in special containers. The steps of the nuclear fuel cycle are the mine, the milling, conversion, enrichment, the fuel fabrication, the use in the reactor, the eventual reprocessing, and the end as a waste. Then I will take a look at nuclear weapons technology. 1-1 Front-end of the cycle The mine. Uranium is the heaviest natural element in the universe. It is a white metal commonly found in association with oxygen (Triuranium Octoxide, or U3O8) and other elements, widespread in the environment, present even in water. It is more abundant in the earth's crust, and some concentrations are considered as ore when the uranium is economically recoverable from rocks. As said in the introduction of this thesis, the major mines of uranium ore are in Australia, Kazakhstan, Canada, Russia and Africa. Mining of uranium is a complex operation, and the recovered ore needs to be purified after extraction from the earth. Milling. The ore is therefore placed in a uranium mill, where it is mixed with chemical agents, such as sulfuric acid, in order to remove impurities and obtain a suitable form for the next steps of manipulation. During this process, the uranium is called yellowcake because it takes such an appearance (even if in more modern process, it is darker). In the end of the process, the uranium takes the form of U3O8. Conversion. The U3O8 is then transformed in a gas called Uranium Hexafluoride (UF6) also known as Hex. This gas will follow the most sensitive process of transformation, the enrichment. The hex will be liquefied for transport. Until this moment, the uranium has only been subjected to chemical treatments which are not considered as key proliferating technologies. Enrichment. Thus, the UF6 is a molecule of gas made up of six atoms of fluorine and a single atom of uranium. This atom of uranium can take two forms, which are both natural isotopes: U238, most 5

10 common (99,3% of natural uranium), and U235 (0,7% of natural uranium) which is a little bit lighter (by 3 neutrons in comparison to U238). U235 is the only natural fissile atom, that is to say which is able to split (explode) and therefore produce energy in a reactor. U238 is a fertile atom, that is to say that after capture of neutrons produced by U235 splits, it can be transformed after several steps into a fissile atom (an atom of Plutonium), but will not split itself. Like this, to start a sustainable nuclear chain reaction, the fuel of a reactor needs a certain level of U235. The reactor-grade uranium, or low-enriched uranium (LEU) that is to say uranium containing enough U235 atoms to maintain such a reaction, has (for the most used reactors, Light Water Reactors or LWR) a proportion of at least 3% and up to 5% U235, the remaining elements being U238. The uranium needs therefore a treatment to increase the number of U235 atoms in the mix: this is the enrichment. Hex can follow several kind of enrichment processes, the most commonly used being gaseous diffusion or centrifugation. Both use the slight difference of mass between U235 and U238 to increase the concentration of U235 in the gas after a cascade treatment. Gaseous diffusion uses membranes to filter U235 and is a process requiring a lot of energy. It will be replaced by centrifugation, which uses cylinders with rotors and the centrifuge force to collect a maximum of U235. Fuel fabrication. The enriched UF6 is then converted in nuclear fuel, suitable for use in the reactor. Fuel can take many forms depending of the kind of reactor. Often, the gas is transformed into solid pellets of Uranium Dioxide (UO2) which are put in tubes. 1-2 Use of the fuel and back-end of the cycle Fuel use. The fuel is placed in the core of the reactor and fission of U235 is harnessed in order to obtain a continuous fission reaction to produce heat. The reactor warms up water which will drag a turbine and therefore produce electricity. During the functioning of the reactor, the fuel will change, the elements being transmuted by neutron capture and radioactivity. The U235 will be consumed, and several by-product elements will appear, named fission products. Some of them are valuable, like the plutonium 239 (Pu239) which is a fissile and heat-generating element. Some others just pollute the fuel and impede the reaction to continue (especially some elements named minor actinides, other plutonium isotopes, etc.). For those reasons, after about three or four years, the fuel is removed from the core. Its future will depend of the solution adopted by the State using the power plant, and will have an impact on the proliferation policy: open or closed cycle. Open cycle. All the used fuel is disposed and considered as waste. Closed cycle and reprocessing. Even after use, there is still U235 in the fuel, and the Pu239 provides also valuable fissile material. Used fuel still contains half of the energy potential than when it is loaded, but the minor actinides and other products hampering the nuclear chain reaction have to be removed. All the commercial reprocessing facilities use the PUREX process, enabling to separate the different components from the used fuel, the uranium (96% of the used fuel), the plutonium (1%) and the other fission products (3%). The reprocessed uranium has to be re-enriched, and the plutonium will be mixed with uranium to fabricate Mixed Oxide Fuel (MOX). The MOX can be used in a licensed reactor in combination with normal fuel (up to 50% of MOX if some adaptations are done). To separate the plutonium from other elements is seen as a proliferation risk because including enough Pu239, it can be used to make a bomb, as we will see later in this chapter. 6

11 Waste from the reactor. Used fuel is not only composed by uranium and plutonium. Some other by-products are created by the transmutations taking place in the core. A small quantity of the used fuel (3% as aforementioned) is made up by minor actinides (neptunium, americium, curium) and other fission products (cesium, germanium, dysprosium). Those non-valuable products, ultimate wastes, are considered as High-Level Waste (HLW) because they contain the biggest part of radioactivity and emit extremely dangerous radiations for up to hundreds of thousands years or even for some several millions years. They cannot be handled normally for disposal. They are stored after a treatment enabling to manipulate and confine them as durably as possible (for instance in a vitreous matrix as primary barrier). It is to notice that in open cycle countries, the entire spent fuel, including uranium and plutonium, is considered as HLW and treated accordingly. The HLW after confinement can follow three different ways, according to the country policy: temporary storage (in surface or underground), final repository (most projects with deep geological disposal), or transmutation (the waste are transmuted in less dangerous elements, but such process are unfortunately yet not available at industrial level). 1-3 Current technological concerns Proliferation and nuclear weapon fabrication. A nuclear explosion is produced by the concentration of fissile elements, U235 or Pu239. The fissile material is compressed in the bomb with a detonation, in order to start a violent chain reaction, which is not harnessed like in a reactor. This reaction is highly supercritical, that is to say that each atom split will produce several splits instead of induce a continuous critical reaction. There are two sorts of nuclear weapons: fission and fusion weapons. The fission weapon works just like aforementioned, with enough fissile material to have a blast effect. The fusion weapon also named thermonuclear weapon or hydrogen-bomb (H-Bomb) produces energy with a fusion reaction between hydrogen isotopes. This reaction is much more powerful than the previous one, but requires to be initiated by a fission explosion. Thus, both bombs necessitate fissile material. The fissile material used must comply with certain requirements. Uranium needs to be enriched to higher levels than 3 or 5% to be used in a weapon. Highly- Enriched Uranium, HEU, with 90% of U235, is required for a useable bomb. To enrich uranium and reach what is called the weapon-grade level is quite simple with the same facilities and technologies than used for LEU for civil reactors. Furthermore, the uranium enrichment is not a linear process. The work needed to enrich uranium from 3% up to 90% is about the same than needed to enrich up to 3% natural uranium. In this way, a country possessing an efficient LEU plant has the possibility to militarize its nuclear capacity and produce uranium-based weapons really easily. Plutonium requires more dedicated investment to make a bomb. However less fissile material will be necessary: plutonium has a higher energy density than uranium (some kilos are enough 12 ) and thus is more easily inserted in missiles, and will serve to make H-bombs. Like uranium, plutonium is a mix between several isotopes, Pu239 and Pu240 mainly. As already seen only Pu239, fissile, is interesting for fission purposes. Weapon-grade plutonium contains at least 90% Pu239, which is not the case of reactor-grade plutonium produced in used fuel. Indeed the long fuel use produces too much Pu240 and consumes Pu239. Weapon-grade plutonium is produced 12 Department Of Energy, Nonproliferation and Arms Control Assessment of Weapon-Usable Fissile Material Storage and Excess Plutonium Disposition Alternatives (DOE, Washington, 1997): 36 7

12 in special reactors with short loads of U238 and quick reprocessing of used fuel. Some recent declassified documents of the US Department Of Energy showed that reactor-grade plutonium could also be used to make a bomb (which would probably be a complex and unpredictable device) 13. Future reactors. The current technology of reactors, LWR, is considered as the second generation of nuclear reactors. The third generation (European Pressurized Reactor, or EPR) is a technology of upgraded LWR but does not differ fundamentally from the second generation. Major technological advances will be made and are studied for the fourth generation of reactors. An ambitious international research program, the Generation IV International Forum (GIF), pointed out six different kinds of new reactors. States members of GIF work on the technologies they each prefer to explore with partners. All Generation IV reactors are designated to increase safety and be proliferation-resistant. Some of them (high temperature reactors) will produce electricity but also hydrogen. Some are fast-breeders, that is to say that they produce more fissile material than they consume. Some work with an open cycle, other with a closed cycle and could be concerned by the reprocessing method we already studied. All are very promising, but will not be available before 2040 or However the technological aspect (not studied in this thesis) of fuel treatment methods implemented in the INFC would have to be designated in consideration of those projects. These elements give evidences about the proliferation dangers of nuclear civilian technologies. Enrichment, even based on peaceful purposes, can be used directly to obtain weapon-grade uranium for a bomb. Reprocessing of civilian spent fuel could be used eventually to make a bomb with reactor-grade plutonium. The technology of spent fuel reprocessing is also very sensitive, because an access to experience in plutonium separation could serve to establish military reprocessing technology. Therefore, uranium enrichment as much as reprocessing of spent fuel are proliferation sensitive technologies and must be assessed as such in the framework of the nuclear fuel cycle internationalization. CHAPTER 2 NUCLEAR POLICIES The purpose of this second chapter is to describe a part of the nuclear industry organization, being focused on the uranium cycle. Therefore the topic of this chapter is not to offer a complete broad overview of the nuclear policies implemented throughout the world, but will be limited to the aspects which could be involved in an INFC. Risk assessment, and public as much as private aspects have to be studied. The question I will try to answer here is: considering the proliferating steps we identified in Chapter 1, and the risks associated to nuclear industry organization, how international policy makers reacted to limit nuclear hazard? 13 National Academy of Sciences & Russian Academy of Sciences, Internationalization of the Nuclear Fuel Cycle, goals, strategies, and challenges (The National Academies Press, Washington, 2009): 17 about aforementioned DOE document. 8

13 2-1 Risk assessment Environmental and human harm nuclear risk. Nuclear power plants are the most famous source of nuclear risk since the Chernobyl accident in Nevertheless they are not the subject of this thesis and other facilities and activities of uranium processing are also important sources of environmental or human risk. Two elements of the nuclear fuel cycle are considered as particularly dangerous for their environment (especially in the case of a terrorist attack): reprocessing plants and transport of radioactive material. According to a report prepared for Greenpeace International in 2005 by several experts, spent fuel reprocessing plants are amongst the most dangerous sources of hazard in case of an attack 14. They contain plutonium, which is highly radiotoxic. This report quotes Frank Barnaby, a former director of the SIPRI (Stockholm International Peace Research Institute) think-tank: if evenly distributed, a kilogram of plutonium in the Sellafield store 15 will, on average, contaminate more than 300 square kilometres to the level at which the NRPB [National Radiation Protection Board] recommends evacuation. A terrorist attack on a plutonium store at Sellafield could contaminate a huge area of land. 16 With regard to this estimation, it is to note that the biggest plutonium storage facilities in the world (United Kingdom, France and Russia) contain each several dozens of plutonium tons. Not only terrorist threat but also accidents are to consider and for example, a leak of about 20 tons of nuclear fuel (mainly uranium, with some plutonium) already occurred in the Sellafield plant in Other chemical products and radioactive elements are also present in such a reprocessing plant, and would increase the adverse consequences of an accident or an intentional terrorist attack. The other major element of risk is the transport of radioactive material. As we saw earlier, uranium cycle involves a lot of different steps and between those steps, the product needs to be moved to the different facilities (enrichment plant, fuel factory, power plant, reprocessing facility...). Transport of radioactive material presents different issues: the amounts of radioactive or toxic elements release will be inferior that in the case of a plant, but the release can occur in multiple places, for example in an urban area with a high density of population. Spent fuel and Hex transport are regarded as particularly dangerous, the former for its radioactivity, the latter for its chemical toxicity, and both are considered as catastrophic sources of harm if released in urban area 18. Transport of nuclear material is therefore regulated by several instruments, like the IAEA Regulations for the Safe Transport of radioactive Material, or other international treaties 19. Proliferation risks and fuel cycle policies. Two uranium processing steps are considered as proliferating, that is to say useable to produce weapon devices. As explained in the first chapter, those sensitive technologies are uranium enrichment and spent fuel reprocessing. Enrichment cannot be avoided by a State using the large majority of reactors available on the market (some Canadian designed reactors, CANDU reactors, can be fueled with natural uranium or thorium, but they represent a very small number of plants). Therefore this technology shall exist as 14 Helmut Hirsch, Oda Becker, Mycle Schneider, Antony Froggatt, Nuclear Reactor Hazards, Ongoing Dangers of Operating Nuclear technology in the 21 st Century, Report prepared for Greenpeace International (2005): The Sellafield plant is the Great Britain's facility dedicated to spent fuel reprocessing. 16 Frank Barnaby, Nuclear Terrorism: the Risks and Realities in Britain (Oxford Research Group, 2003) 17 Health and Safety Executive, report on the investigation into the leak of dissolver product liquor at the Thermal Oxide Reprocessing Plant (THORP), Sellafield, notified to HSE on 20 April 2005 (HSE, 2007) 18 Helmut Hirsch, Olga Becker, Mycle Schneider, Antony Froggatt, Nuclear Reactor Hazards, Ongoing Dangers of Operating Nuclear Technology in the 21 st Century, Report prepared for Greenpeace International (2005): See Odette Jankowitsch-Prevor, The International Law of Transport of Nuclear and Radioactive Material, in International Law: History, Evolution and Outlook, 10 th anniversary of the International School of Nuclear Law (OECD, Paris, 2010) 9

14 long as nuclear reactors will operate. The number of reactors increasing with the time, the same will probably apply for enrichment facilities. Reprocessing plants are not an obvious and incontrovertible part of the fuel cycle. Those techniques require complex technologies and engineering, and proliferation concerns are also part of the decision to close or not the fuel cycle. The USA, first producer of nuclear electricity, banned reprocessing of its spent fuel in 1977 ( Carter doctrine ), especially in order to avoid proliferation and production of large amounts of plutonium 20. Other nuclear countries like Sweden, Canada or South Korea adopted open cycle policies. But USA is reconsidering its position, with regard to GenIV reactors possibilities 21. Several other producers chose a close cycle, like France, UK, Russia or Japan which possess their own facilities. Some others chose the closed cycle too but are dependent of foreign providers. 2-2 Organization overview Nuclear industry organization. Nuclear industry and uranium processing technologies are not widespread and are still concentrated in few countries and companies. Indeed the nuclear technology, firstly developed for military aims, has been implemented by States for their defense programs. Civilian applications of nuclear technology came secondly, and with regards to the possibilities of divert it from civilian to military purposes, and the strategic importance of uranium resources, the entire fuel cycle industry is carefully watched by the States. For these reasons, the companies working on the nuclear fuel cycle are often State-owned. The chain of operations on the fuel is more or less vertically integrated in the industry. For example, in France, the entire fuel cycle is managed by the same State-owned company, Areva, from the mining up to the back-end cycle with reprocessing and waste management (and including building of power plants). More commonly the fuel cycle steps operations are divided between several operators. From the client's (power supplier) point of view, the fuel cycle is completely internationalized. An electricity supplier can buy the uranium ore from a Canadian miner, make it converse in Hex in Russia, enrich in the Netherlands, make fabricate the fuel in USA, and after use in a reactor, reprocess the fuel in France. The uranium market is seen today as enough competitive and healthy 22, and buyers have tendencies to diversify their supply sources 23. A dozen of countries have enrichment plants, but on the enrichment market, only six provide to foreign countries enrichment services: USA, Russia, France, Germany, UK and the Netherlands, the latter three acting together in the Urenco consortium. The competition on the back-end of the civilian fuel cycle (reprocessing), is even more restricted with only three countries able to reprocess foreign fuel: France, UK and Russia. Japan and India possess also this technology but use it only for their national reactor fleet. Russia was the only one to keep radioactive wastes resulting from reprocessing of foreign fuel, according to agreements with former Soviet Union countries, but those agreements are yet ended 24. International cooperation. The nuclear energy has, since its origins, been an international subject of concern. The first resolution of the United Nations General Assembly, in 1946, intended to create 20 Anthony Andrews, Nuclear Fuel Reprocessing: US Policy development, Congressional Research Service Report for Congress (2008) 21 WNA, Processing of Used Nuclear Fuel (April 2010) 22 IAEA, INFCIRC/640, Multilateral Approaches to the Nuclear Fuel Cycle: Expert Group report submitted to the Director General of the IAEA (IAEA, Vienna, 2005): 6 23 Steve Kidd, Uranium is it set to fuel the nuclear renaissance?, Nuclear Engineering International, 30 September Cristina Chuen, Russian Spent Nuclear Fuel, Nuclear Threat Initiative, February

15 a commission to deal with this issue 25. The representative of the USA at this commission, Bernard Baruch, proposed an ambitious program, known as Baruch Plan, aiming to give the entire control of research on nuclear activities and nuclear material to an Authority holding the entire know-how connected to nuclear technology, the USA agreeing in exchange to destroy all its nuclear weapons 26. The explosion of the first nuclear bomb of URSS, in 1949, ended the possibility of such a compromise. The nuclear race of the cold war and the stockpiling of nuclear weapons started. In 1953 the USA President pronounced his speech Atoms for Peace and negotiations about nuclear threat leaded finally to the creation of the IAEA in The IAEA is an international organization of 151 member States with three main missions: - Implement safeguard controls in voluntary States in order to verify that their nuclear technology and facilities are not used for military purposes - Implement security and safety 28 controls to ensure a safe use of nuclear energy and thus avoid nuclear accidents - Promote the peaceful use of nuclear technology worldwide, supporting the countries desiring implement a peaceful nuclear program by the mean of technical cooperation. The legal functioning of the IAEA, important for the issue of this thesis, will be studied in the Chapter 3. Other multinational agencies have been created to focus on nuclear concerns, particularly Euratom and the Nuclear Energy Agency (NEA). Euratom is the regional agency of the European Union in charge of the coordination of research and development in the nuclear field. It has been created by the Euratom Treaty which is one of the Treaties of Rome signed in 1957 establishing the European Union. The NEA (formerly called European Agency for Nuclear Energy until 1972) is an agency of the OECD created in 1957 to foster the development of nuclear industry in the member States. The NEA is currently a tool for the member States to preserve their know-how and develop research cooperation; for example, NEA provide secretariat of the GenIV International Forum 29. With regards to proliferation concerns and spreading of sensitive technologies, the States possessing nuclear technologies set up in the 70s a committee, named Zangger Committee according to the name of chairman Claude Zangger. In 1974 the Zangger Committee issued the Trigger List detailing the materials and equipments considered as proliferating, to trigger the safeguards controls of IAEA. Following the establishment of the Trigger List and the peaceful nuclear explosion of an atomic device in India, States having participated to the Zangger Committee and other suppliers of nuclear equipment decided to form the Nuclear Suppliers Group (NSG), also named London Club. The NSG members agreed to apply specific guidelines to their exports of sensitive technologies and materials. The NSG is seen by some developing countries as a club of privileged countries, cooperating in order to keep their leadership on nuclear technology and hampering technology transfers towards developing States, an usual reproach against international institutions aiming to 25 The United Nations Atomic Energy Commission, created by the UN General Assembly Resolution n 1, Establishment of a commission to deal with the problems raised by the discovery of atomic energy, seventeenth plenary meeting, 24 January Tom Vanden Borre & Roland Carchon, Preventing the Proliferation of Nuclear Weapons: 50 Years of Atom for Peace, Nuclear Law Bulletin n 57, June Statute approved on 23 October 1956, entered into force on 29 July It is important to differentiate the 3 S : safeguards, safety and security aspects. Safeguards intend to avoid diversion of civilian nuclear technology and proliferation; Safety intends to protect environment and people against risks of radioactivity; Security intends to protect nuclear material against terrorism or criminals (attacks with destructive purpose, or robbery). 29 Julia A. Schwartz, The OECD Nuclear Energy Agency, in International Law: History, Evolution and Outlook, 10 th anniversary of the International School of Nuclear Law (OECD, Paris, 2010) 11

16 limit proliferation 30. Today research and development is also seen as a mean to reduce proliferation risks, by the design and fostering of new reactors with safe closed cycles. That is the purpose of the Global Nuclear Energy Partnership (GNEP), with 25 members States cooperating to seek out the best ways to implement worldwide a proliferation-resistant fuel cycle. The GNEP has been initiated by the USA in 2006 and is supported by the IAEA and major nuclear countries. It works on developing new concepts of fuel cycles, reactors, and helping countries desiring implement a nuclear infrastructure. This partnership is complementary with the researches undertaken in the GenIV International Forum. The domination of States over the nuclear industry, and the long practice of international cooperation in this domain, are to notice. It is important to note the consensus between them on the absolute necessity to limit proliferation and control strictly the commerce of nuclear items. If some policies like control-export are almost worldwide agreed, States have however several possibilities of internal management of their nuclear fuel, like the choice between open and closed cycle. The strategic character of nuclear energy remains important, and even if international cooperation is widespread, States always affirm their sovereignty over these questions. CHAPTER 3 NUCLEAR LAW Nuclear law being a wide discipline deserving entire books and thesis, I will here restrain the topic of this chapter to an overview, useful for the comprehension of our subject, and more detailed information about IAEA, safeguards and export control. The application of nuclear law to the International Nuclear Fuel Center and more precise topics (like transport) will be addressed in the following parts II and III of the thesis. The aim of this chapter will be to answer to this question: how the policies undertaken by States, described in the previous Chapter, are implemented in legal instruments? 3-1 The basis of international nuclear law Definition and main aspects. Nuclear law is defined by IAEA as (t)he body of special norms created to regulate the conduct of legal or natural persons engaged in activities related to fissionable materials, ionizing radiation and exposure to natural sources of radiation 31. Its objective is (t)o provide a legal framework for conducting activities related to nuclear energy and ionizing radiation in a manner which adequately protects individuals, property and the environment. 32 Nuclear law is therefore considered in function of its object. It has been developed since the apparition of nuclear technology, due to the risks implied by its use, and is mainly based on scientific knowledge and assessments 33. In this way, nuclear law can refer to codes or standards which are continuously updated according to the latest scientific knowledge. 30 Ben Sanders, A Short History of Nuclear Non-Proliferation, Nuclear law Bulletin n 62, December Carlton Stoiber, Alec Baer, Norbert Pelzer, Wolfram Tonhauser, Handbook on Nuclear Law (IAEA, Vienna, 2003): 4 32 Ibid, 5 33 Katia Boustany, Reflection on the development of Nuclear Law, Nuclear law Bulletin n 51 (June 1993) 12

17 IAEA lists several fundamental principles of nuclear law 34, necessary to implement a safe and secured nuclear program in a country. Some are particularly relevant for the topic of this thesis. - Safety principle, as aforementioned in Chapter 2 - Security principle, also mentioned in Chapter 2 - Responsibility principle: nuclear activities involving typically many parties and contractors, the operator who has been granted a licence to carry out his activities is considered as responsible when a damage occurs. - Continuous control principle: the State has to exercise a permanent monitoring on the nuclear activities taking place under its jurisdiction - Sustainable development principle: users of nuclear energy and materials, considering the longtime scales involved, should as much as possible to take account of next generations when using nuclear technologies - Transparency principle: relevant information should be made available to public - International cooperation principle: considering especially risks of transboundary damage, and advantages of feedback between users in order to reduce those risks or the impact of accidents, international agreements and cooperation should be fostered. The International Atomic Energy Agency and its norms. The statute of IAEA has been approved on 23 October 1956 by the Conference on the Statute of the IAEA in the headquarters of the United Nations, and came into force on 29 July The mission of the Agency is to seek to accelerate the contribution of atomic energy to peace, health and prosperity throughout the world. It shall ensure, so far as it is able, that assistance provided by it or at its request or under its supervision or control is not used in such a way as to further any military purpose (Art. II of IAEA statute). The Agency is an independent international organization, but works in coordination with the United Nations, as defined in the statute of IAEA (Art. XVI) and in the Agreement governing the relationship between the United Nations and the International Atomic Energy Agency, entered into force on 14 November According to those texts, IAEA shall report to the United Nation Security Council infringements of a State to the IAEA safeguards. The IAEA is governed by a General Conference (Art. V of its statute), electing a Board of Governors (Art. VI) mainly issued from countries possessing advanced nuclear technology. The Board of Governors appoints a Director General (Art. VII) responsible to administer the Agency. In order to carry out their mission, IAEA inspectors and officials are granted with privileges and immunities agreed with members (Art. XV). The primary role of IAEA is to establish safeguards (Art. III A5) which shall apply to projects implemented with its assistance, or to any State requiring it by the mean of an agreement. In practice, those agreements are often concluded to comply with the NPT (see infra). The Agency can also issue health, safety and security standards to give guidelines to States desiring establish a safe regulatory framework for nuclear material use (Art. III A6). Those standards are not binding norms for members. It is also relevant to notice that the Agency has the possibility (t)o acquire or establish facilities, plant and equipment useful in carrying out its authorized functions, whenever the facilities, plant, and equipment otherwise available in the area concerned are inadequate or available only in terms it deems unsatisfactory (Art. III A7). The Agency can supply material to member States requiring its assistance (Art. IX), and can also help a member desiring carry out a project, to implement it, by providing experts or equipment, or 34 Carlton Stoiber & others, Handbook on Nuclear Law 13