Legal FrameworkModule structure

V0.1 18/06/2015 BYG Systems

Milestones Approach e-learning Module 14

This PowerPoint file contains the proposed raw content for the legal Framework module. Text copied directly from the Template_CS Meeting Content_Day5COMPLETE.doc is shown in black and summary text written by BYG is shown in red.

Key

Proposed menus Scenario screens

Scenario actorsOrganization Actors

Government of Bredonia – Ministry of Energy Minister of Energy – Suzanne Reyonne

Government of Bredonia – Ministry of Justice Minister of Justice – Fion Lamaba

Government of Bredonia - Prime Minister’s Office Advisor to the Prime Minister of Bredonia - Karl Rosenstrom

Government of Bredonia - Legal Advisor Caro Sellense

Government of Bredonia - NEPIO Director – Neil Hannan

Government of Bredonia - Ministry of Foreign Affairs Legal advisor - Cathy Matovu

Bredonia Nuclear Regulatory Authority Director - John Jenna

External Nuclear Law Consultancy External Nuclear Law Consultant – Greta Khabi

IAEA Legal Advisor – Paulo Hunner

Main Menu

1. Introduction2. Part One3. Part Two4. Part Three5. Part four

Introduction

Introduction to nuclear law1. Definition and objective of nuclear law2. The 3s concept

Definition and objective of nuclear law

• Definition of nuclear law• Nuclear law is defined as “The body of special legal 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.”

• This definition comprises four key elements. First, as a body of special legal norms, nuclear law is recognized as a part of general national legislation, while at the same time comprising different rules required by the special nature of the technology. Second, the element of regulation incorporates the risk–benefit approach that is central to managing activities that present both hazards and advantages for social and economic development. Third, as with all legal regimes, the special legal norms relate to the conduct of legal persons, including commercial, academic, scientific and governmental entities, as well as of individuals. The fourth element focuses on radioactivity (produced through the use of fissionable material or ionizing radiation) as the defining feature justifying a special legal regime. (Ref. Handbook, 2003, pag. 4.)

• Objective of nuclear law• The objective of nuclear law is “To 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”. (Ref. Handbook, 2003. Section 1.3 pag. 5)

The 3S Concept

• The 3S concept reflects the three technical areas which need to be addressed in establishing an adequate legislative and regulatory framework to ensure the peaceful uses and prevent the non-peaceful uses of nuclear energy and ionizing radiation; namely, safety, security and safeguards. As is increasingly recognized, measures taken to address one of these key areas can contribute to addressing the others as well.

Part 1 Topics

[1] Why a legal framework is required– Need for special legal arrangements– Elements of a legal framework

[2] The make-up of a legal framework• When does a country need to develop, revise or

amend its legal framework• Steps in developing the legal framework

Need for special legal arrangements

• A legal framework is needed to provide a sound legal basis to regulate this specific activity for peaceful uses which adequately protects individuals, property and the environment.

• Due to the special nature of nuclear energy and ionizing radiation, it is necessary that this activity is specifically regulated in the national legal framework, in line with the fundamental principles of nuclear law that distinguish it from other areas of law.

•

Elements of a legal frameworkINTERNATIONAL LEGAL FRAMEWORK

The use of nuclear energy and ionizing radiation has not only a national but also an international dimension that requires adherence to the international legal instruments adopted in the field.• Participation in the international legal framework for the safe, secure and peaceful uses of nuclear energy and ionizing radiation allows for the establishment of treaty relations between States and provides the basis for international cooperation in these areas.

COMPREHENSIVE NUCLEAR LAW

• A comprehensive nuclear law is required to cover adequately all aspects of safety, security, safeguards and civil liability for nuclear damage, in line with the international legal

instruments.

REVISION OF OTHER LAWS• The revision of other relevant laws is also necessary to prevent gaps and avoid duplications

and inconsistencies with other national legislation that may be related with nuclear activities.

When does a country need to develop, or revise and amend, its legal framework

• A country may need to enact national nuclear legislation when it has no specific laws covering this specific area that requires special legal arrangements.

• A country may need to revise or amend its national nuclear legislation in the following cases:-• adherence, or plans to adhere to, an international legal instrument(s) in order to ensure consistency

• In the case of new subject areas of nuclear law not previously provided for• Country A intends to conduct uranium mining activities which previously were not covered in the

national nuclear law. At the same time, mining laws in the country do not foresee regulatory control of uranium mining. An amendment to the nuclear law is required to factor in this activity which should also be under regulatory control.

• • To enhance the law based on lessons learned from national or international experiences• • Example• After the Fukushima Daichi nuclear accident, states operating nuclear power plants carried out

comprehensive analysis of their nuclear legislations, regulations and guides on safety in order to prevent any adverse effects in the unlikely event resulting from any incident or accident in the nuclear plant based on lessons learned from the accident.

Steps in developing the legal framework• The development of the legal framework should comprise the following activities:• • Assessment of the national circumstances, such as the current status and plans for nuclear activities, the existing

legislations and the status of the country vis-à-vis the international instruments.• Analyze the advantages and implications of joining the relevant international instruments, in consultation with relevant

stakeholders (for instance, through a working group)• Identify gaps in the national legislation• Make recommendations on the treaties that the country should join, the legislations to be developed and amendments to

the existing national legislation• • When considering to join an international legal instrument, the following should be considered:• • International legal instrument are normally subject to ratification, acceptance or approval by the signatory States, and are

open for accession by all States after their entry into force. The appropriate instrument shall be deposited with the IAEA Director General.

• The conclusion of a safeguards agreement (e.g. Comprehensive Safeguards Agreement, Additional Protocol) entails the following steps:

• Request by the State to the IAEA• Negotiation of draft text prepared by the IAEA, based on existing models and standardized text• Approval of draft text by the IAEA Board of Governors• Signature of agreement between the State and the IAEA Director General• Entry into force, in accordance with national system

Steps in developing the legal framework (Cont.)

• When drafting a comprehensive national nuclear law the following aspects should be taken into account:

• • Seek instructions and guidance on the scope and general content of the draft law• Designate responsibilities for drafting the initial proposal• Designate responsibilities for consultation on initial proposal• Ensure participation of legal and technical experts and train where appropriate• Review and input by stakeholders• Seek expert review (for instance, IAEA legislative assistance)• Prepare final draft• Commence legislation process as per national system• • When revising other relevant laws the following aspects should be taken into account:• Identify relevant subject areas• Consult relevant institutions• Assess gaps and duplications between the nuclear law and other national legislation• Identify needs for amendment

Assessment of laws

• Of the many issues to be examined in an assessment of a State’s nuclear law, the following are the most important:

• (a) Does the current legislation make it clear that public health, safety, security and the environment are overriding considerations in the use of nuclear techniques and material?

• (b) Are there major gaps or overlaps in the legal structure regarding the treatment of nuclear related activities or material, both those currently being conducted or used and those that can reasonably be expected?

• (c) Have the most important terms used in the legislation been given clear and consistent definitions in the statutory documents? Does the use of different terms and definitions, or a failure to define certain terms, produce confusion about how nuclear related activities are to be regulated?

• (d) Are the institutional responsibilities for regulating nuclear related activities clear and consistent, permitting efficient regulation without delays and bureaucratic conflicts?

• (e) Does the present regulatory system involve unnecessary financial or administrative burdens on regulated entities or regulatory agencies that could be reduced in order to improve efficiency?

• (f) Does the present system fully comply with the State’s international legal obligations and reflect international best practice, as described in safety standards documents

Initial legislative draftingThe drafters of an initial legislative proposal should: (a) Identify the key terms that require precise definition in a separate section;(b) Clearly assign institutional responsibility for each regulated activity, in order to avoid confusion;(c) Ensure that the legislative language is sufficiently clear about which activities are covered and which

procedures must be followed in order to comply with the law;(d) Ensure that the legislation contains clear provisions for dealing with disagreements and with violations

of regulations (e.g. conflicts of jurisdiction between agencies, appeals by operators against regulatory decisions and the punishment of wilful violators of regulations);

Ensure that the legislation makes it clear how the financial costs of various activities will be met (e.g. through general tax revenues, licencefees or financial penalties for violations);

(f) Ensure that the legislation provides for adequate involvement in the regulatory process of stakeholders (including local communities and, where transboundary issues may arise, neighbouring States);

(g) Ensure that the legislation contains provisions giving regulators the flexibility necessary in order to adjust to technological, social and economic changes;

(h) Ensure that the legislation contains provisions for the orderly implementation of new or revised arrangements (e.g. a delay period before entry into force or phasing in over an extended period);

(i) Ensure that the legislation contains provisions for the treatment of activities being carried out and facilities being operated in accordance with earlier standards

Topic Summary

KNOWLEDGE CHECK PLACEHOLDER

Part 2 Topics

[1] International instruments-Overview -Implications of adherence

[2] Nuclear Safety[3] Nuclear Security[4] Nuclear Liability

The international legal framework• The international dimension of nuclear energy establishes a mechanism to create

the international legal foundation for using radioactive and nuclear material safely and securely in ways that protect all States - both those with active nuclear programmes and those conducting only limited nuclear activities.

• The international nuclear legal framework establishes the duty and responsibilities of the various organizations necessary for a successful nuclear power programme. Nuclear power programme cannot be operated in isolation. Legislation should therefore implement, or authorize implementation of, any international instruments to which the government is a party.

• While responsibility for nuclear policy rests entirely with each Member State, a number of States have not adhered to relevant instruments or implemented them effectively through their national legal and regulatory frameworks. This situation leaves gaps in the global system that can be bring inconsistencies in international cooperation, commercial issues, transport, security, among others.

International instrumentsA large number of international instruments (e.g. conventions and treaties) have been developed to cover specific nuclear related subjects. Adherence to these instruments has both an external and an internal aspect. As a matter of international law, States that take the necessary steps under their national laws to approve (or ratify) such an instrument are then bound by the obligations arising out of that instrument in their relations with other States Parties (assuming that the instrument has entered into force).

Implications of adherenceThe adherence to international legal instruments implies the following outlooks:

• Reaffirm the fundamental responsibilities of States, consistent with the respective international obligations to address nuclear activities

• Call on States to work cooperatively as an international community to advance nuclear safety and security• Endeavour to fully implement all existing nuclear commitments and work toward acceding to those not yet jointed• Support the objectives of international nuclear legal instruments• Recognize the role and contributions of the IAEA and the United Nations• Recognize the need for cooperation among States to effectively prevent and respond accidents/ incidents of nuclear activities. • Support the implementation of strong nuclear policies• Establish a Global nuclear legal infrastructure

The universal adherence to relevant legal instruments, harmonization of national legal and regulatory frameworks, and effective application of relevant legislation make a major contribution to a global nuclear safety and security worldwide. This broad range of binding instruments (developed under IAEA auspices) provide an adequate legal basis to regulate this specific activity for peaceful uses which adequately protects individuals, property and the environment, and recognized principles designed to control nuclear material and other radioactive substances.

International legal framework: Nuclear Safety

1. Convention on Early Notification of a Nuclear Accident2. Convention on Assistance in the case of a Nuclear Accident or

Radiological Emergency3. Convention on Nuclear Safety4. Joint Convention on the Safety of Spent Fuel Management and

on the Safety of Radioactive Waste Management5. IAEA Regulations for the Safe Transport of Radioactive

Material6. Code of Conduct on the Safety and Security of Radioactive

Sources and Guidance on the Import and Export of Radioactive Sources

7. Code of Conduct on the Safety of Research Reactors

Convention on Early Notification of a Nuclear Accident

• The Convention was adopted on and entered into force on. It strengthens the international response to nuclear accidents by providing a mechanism for rapid information exchange in order to minimize transboundary radiological consequences.

Why join• The accidents at Chernobyl in April 1986 and more recently at Fukushima in March 2011 both highlighted the importance of international

mechanisms for rapid information exchange in order to minimize their transboundary radiological consequences.

Objective• The Convention aims to strengthen international cooperation so that radiological consequences can be minimized.

Scope of application• The Convention applies in the event of any accident involving specified facilities or activities of a State Party from which a release of

radioactive material occurs or is likely to occur and which has resulted or may result in an international transboundary release that could be of radiological safety significance to another State.

Main obligations• In the event of a nuclear accident, a State Party must notify other States which have or may be affected as well as the Agency of the

accident, its nature, the time of its occurrence and its exact location. In addition, the State Party must provide additional information relevant to minimizing the radiological consequences of the accident, such as its assumed or established cause, the general characteristics of the radioactive release as well as its predicted development over time, and any off-site protective measures. This information is to be communicated by the Agency to States Parties, IAEA Member States, other States that may be physically affected and relevant international organizations.

• • A State Party must also notify the Agency and other States Parties of its competent authority which will serve as the focal point responsible

for issuing and receiving notification and information and should be available continuously.

Convention on Assistance in the case of a Nuclear Accident or Radiological Emergency

• The Convention was adopted on and entered into force on . It strengthens the international response to a nuclear accident or radiological emergency, including a terrorist or other malicious act, by providing a mutual assistance mechanism with a view to minimizing the consequences of such accidents or emergencies and protecting life, property and the environment against the effects of radioactive releases.

• Why join• Nuclear and radiological emergencies and accidents may have a detrimental impact not only on the facilities in which they occur but also on the environment

in the vicinity. Under certain circumstances, radioactivity may be transported by air or water to areas beyond the facility and may even cause long distance pollution, including pollution within the territories of other States.

• In the event of a nuclear accident or radiological emergency, international cooperation is vital to facilitate prompt assistance and thereby minimize their consequences.

• Both nuclear and non-nuclear power States can benefit from a system of prompt provision of assistance in the event of a nuclear or radiological emergency to help them mitigate its consequences.

• Objective• The Convention provides aims to facilitate prompt requests for and provision of assistance in the event of a nuclear accident or radiological emergency and to

promote, facilitate and support cooperation between States Parties to that end. • • Scope of application• The Convention applies in the event of a nuclear accident or radiological emergency, defined as • • Main obligations of States Parties• To cooperate among themselves and with the Agency to facilitate prompt assistance in the case of nuclear accident or radiological emergency. A State Party

that needs assistance may call for such assistance from any other State Party and from the Agency or from other international organizations, whether or not the accident or emergency originates within its own territory.

• To notify the Agency and other States Parties of its competent authority which will serve as the focal point responsible for issuing and receiving notification and information and should be available continuously. The Agency is required to maintain a list of such points of contact, as well as those of relevant international organizations, and provide this list to States Parties, IAEA Member States and relevant international organizations.

Convention on Nuclear Safety

• The Convention on Nuclear Safety was adopted on and entered into force on. It is the first legally binding international treaty to address the safety of nuclear installations and seeks to ensure that such installations are operated in a safe, well-regulated and environmentally sound manner.

• • Why join• The Convention on Nuclear Safety has played a useful role in strengthening the safety of civilian nuclear power reactors worldwide. • A nuclear accident within one country can have transboundary radiological consequences. Thus, all States, including those who do not have or are not considering the development of nuclear power

programs, have an interest to ensure that States with nuclear power programs, particularly those in the vicinity of their territory, are implementing a high level of nuclear safety. In this regard, the Convention affords all Contracting Parties the opportunity of reviewing the national implementation reports submitted by States with nuclear power programs, and thereby determining if the latter are complying with their obligations under the Convention.

• For States with nuclear power programs, the Convention also facilitates international cooperation through mechanisms that promote transparency and facilitate the sharing of lessons learned, as well as technical cooperation for the enhancement of national measures.

• Objectives• • To achieve and maintain a high level of nuclear safety worldwide through the enhancement of national measures and international cooperation including, technical cooperation.• • To establish and maintain effective defences in nuclear installations against potential radiological hazards to protect individuals, society and the environment.• • To prevent accidents with radiological consequences and to mitigate the consequences of accidents if they should occur.• • Scope of application• The Convention applies to the safety of nuclear installations meaning land-based civil nuclear power plants under a Contracting Party’s jurisdiction including such storage, handling and treatment

facilities for radioactive materials as are on the same site and are directly related to the operation of the nuclear power plant. It does not apply to research reactors. • • Main Obligations• The Convention on Nuclear Safety requires its Contracting Parties to establish a legislative and regulatory framework to govern the safety of nuclear installations (Article 7).• • Each Party to the Convention is required to take, within the framework of national law, the legislative, regulatory and administrative measures and other steps necessary to implement its obligations

under the Convention. (Article 4)• • Each Party is required to submit for review a report on the measures it has taken to implement each of the obligations of the Convention. (Article 5)• • Each Party must establish an independent regulatory body to implement the legislative and regulatory framework required by the Convention with adequate authority, competence, human and

financial resources (Article 8).• • Each Party is required to ensure that on-site and off-site emergency plans are in place, are routinely tested and cover the activities to be carried out in the event of an emergency. (Article 16(1))• • Each Party is required to take appropriate steps to ensure that the siting, design and construction, and operation of a nuclear installation are in accordance with their obligations under the Convention

with a view to preventing the occurrence of accidents, protect against release of radioactive materials and to mitigate their radiological consequences should they occur. (Articles 17-19)• • Each Party is required to attend meetings of the Contracting Parties and be represented at such meetings by one delegate and such others as it deems necessary. (Article 24(1))• • Important Features• The Convention provides for a peer review mechanism. Contracting Parties must report to the Review Meetings of Contracting Parties how they implement each of the obligations under the Convention

(Article 20), as set out in related guidelines and procedural instruments.

Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste

Management• The Joint Convention was adopted on and entered into force on. It is the first legally binding international treaty on the safety of spent fuel management and radioactive waste management. It represents a commitment by

participating States to achieve and maintain a high level of safety in these areas as part of a global regime for ensuring the protection of people and the environment. • Why join• It is in the interest of all States to ensure that sound policies and practices are implemented in ensuring the safety of spent fuel and of radioactive waste management. The reasons why is relevant the observance of this convention

are preliminary describes in its preamble.

• By joining the Convention, States can engage in international cooperation aimed at protecting people and the environment from the harmful effects of ionizing radiation and participate in a peer review mechanism that promotes transparency and facilitates exchange of views on relevant issues.

• The Convention is relevant for all civilian applications, including nuclear power and research reactors, as well as disused sealed sources.

• Objectives• To achieve and maintain a high level of safety worldwide through the enhancement of national measures and international co-operation.• To ensure that there are effective defenses against potential hazards so that individuals, society and the environment are protected from harmful effects of ionizing radiation so that the needs and aspirations of the present

generation are met without compromising the ability of future generations to meet their needs and aspirations.• To prevent accidents with radiological consequences and to mitigate their consequences should they occur.

• Scope of application• The Joint Convention applies to (i) safety of spent fuel management when the spent fuel results from the operation of civilian nuclear reactors, (ii) safety of radioactive waste management when the radioactive waste results from

civilian application and (iii) to certain discharges.

• Main obligations• The Joint Convention requires the Contracting Parties to establish a legislative and regulatory framework to govern the safety of spent fuel and radioactive waste management. (Article 19).• Contracting Parties shall take the appropriate legislative, regulatory and administrative measures to ensure that at all stages of spent fuel management and radioactive waste management, individuals, society and the environment

are adequately protected against radiological hazards in the siting, design and construction, assessment of facilities, operations and closure. (Articles 4-17)• Each Contracting Party shall ensure that before and during operation of a spent fuel or radioactive waste• management facility there are appropriate on-site and, if necessary, off-site emergency plans. (Article 25 (1))• Each Contracting Party shall take the appropriate steps for the preparation and testing of emergency plans• for its territory insofar as it is likely to be affected in the event of a radiological emergency at a spent fuel or• radioactive waste management facility in the vicinity of its territory. (Article 25 (2))• Each Contracting Party shall submit a national report to each review meeting of Contracting Parties.• (Article 32)• Each Contracting Party shall attend meetings of the Contracting Parties and be represented at such• meetings by one delegate, and by such alternates, expert and advisers as it deems necessary. (Article 33(1))

• Important Features• Similar to the Nuclear Safety Convention, the Joint Convention provides for peer review mechanism. Contracting Parties must report to Review Meetings of Contracting Parties how they implement each of the obligations under

the Convention (Article 32). [picture of review meeting]

IAEA Regulations for the Safe Transport of Radioactive Material

• The IAEA transport regulations are a non-legally binding instrument, but become binding in as far as they are implemented in various international transport agreements that States have joined.

• The Regulations for the Safe Transport of Radioactive Materials are applicable to the

national and international carriage of radioactive material by all modes of transport. The Regulations address all categories of radioactive material ranging from very low activity, including such materials as ores and concentrates of ores, to very high activity such as spent fuel and high-level waste. The material to be transported must be categorized on the basis of its activity concentration, total activity, fissile characteristics (if any) and other relevant subsidiary characteristics. Packaging and package requirements are then specified on the basis of the hazard of the contents and range from normal commercial packaging (for low hazard contents) to strict design and performance requirements (for higher hazard contents). Specific requirements are also established for marking, labeling, placarding of conveyances, documentation, external radiation limits, operational controls, quality assurance and notification and approval of certain shipments and package types.

Code of Conduct on the Safety and Security of Radioactive Sources and Guidance on the Import and Export of Radioactive Sources

• The Code and the Guidance were endorsed by the IAEA General Conference in 2004. The Code and the Guidance are not legally binding instruments, but countries may write to the IAEA Director General expressing their support and political commitment to the Code.

• Objective• The objectives of this Code are to: (i) achieve and maintain a high level of safety and security of radioactive sources; (ii) prevent unauthorized access or damage to,

and loss, theft or unauthorized transfer of, radioactive sources, so as to reduce the likelihood of accidental harmful exposure to such sources or the malicious use of such sources to cause harm to individuals, society or the environment; and (iii) mitigate or minimize the radiological consequences of any accident or malicious act involving a radioactive source.

• The Guidance aims to assist and guide States on implementing the Code of Conduct on the Safety and Security of Radioactive Sources, particularly to improve the security and safety in relation the import and export of radioactive sources.

• Scope of application• The Code applies to all radioactive sources (as listed in Annex I) that may pose a significant risk to individuals, society and the environment by harmful effects of

possible accident and malicious acts involving radioactive sources. • The Code does not apply to nuclear material (except for radioactive sources incorporating plutonium-239). • The Code does not apply to radiation generators [There exist two large groups of radiation sources: (i) radioactive material (i.e. material that emits radiation through

the spontaneous decay of some radionuclides); and (ii) equipment specially designed to generate radiation (e.g. dental X ray equipment). Radioactive material emits radiation continuously, whereas radiation generating equipment can be turned on or off at will].

• Important Features • Every State should, in order to protect individuals, society and the environment, take the appropriate measures necessary to ensure: (a) that the radioactive sources

within its territory, or under its jurisdiction or control, are safely managed and securely protected during their useful lives and at the end of their useful lives; and (b) the promotion of safety culture and of security culture with respect to radioactive sources.

• Every State should also have in place an effective national legislative and regulatory system of control over the management and protection of radioactive sources.• The Code separates radioactive sources into three different categories based on the level of risk involved, i.e., category 1, 2 and 3 sources [Insert pictures identifying

category 1, 2, 3 sources: e.g., irradiator, cobalt teletherapy (1), brachytherapy, industrial radiography source (2), well logging or level gauge (3)]. • Exporting and importing States should aim to follow the Guidance when deciding whether or not to authorize exports and imports of Category 1 and 2 sources. The

Guidance provides for States to nominate a point of contact, which could be a person or a position, for the purpose of facilitating the export and/or import of radioactive sources in accordance with the Code and this Guidance. It sets out procedures for importing and exporting States with respect to the authorization and control of exports and imports, through, inter alia, evaluation of authorization, consent and notification requirements prior to specific shipments.

Code of Conduct on the Safety of Research Reactors

The Code was endorsed by the IAEA General Conference on ???? .It is a non-legally binding instrument.

• Objective• The Code aims to develop and harmonize policies, law and regulations

on the safety research reactors and promote an effective nuclear safety culture and enhance international cooperation in safety areas.

• Scope of application• The Code deals with the fundamental safety principles of research

reactors, separate from those involved in land-based nuclear power plants in general, which are covered by the Nuclear Safety Convention.

International legal instruments: Nuclear Security

1. Convention on the Physical Protection of Nuclear Material and Amendment

2. Other international instruments on nuclear security

Convention on the Physical Protection of Nuclear Material and its Amendment

• • The Convention is the only international legally binding undertaking in the area of physical protection of nuclear material. It was adopted on and entered into force on . An Amendment to the Convention was

adopted on . It will enter into force once it has been ratified by 2/3 • • Why join• While national Governments continue to have primary responsibility over nuclear security, international cooperation is vital to avert the potential consequences of any unlawful taking and use of nuclear material

by collectively implementing physical protection measures. Having the broadest participation of States in the CPPNM and its Amendment are vital to enhancing global nuclear security and addressing the vulnerabilities of States to nuclear terrorism. The CPPNM is one of several existing counter-terrorism treaties.

• • Even States which do not have nuclear material or facilities can be a transit or destination point for stolen nuclear material can benefit from ratifying the Amendment. They can cooperate with other States in

undertaking recovery efforts for such materials and mitigating any radiological consequences in case of sabotage. Further, the Amendment lists certain offenses for which the offenders are subject to prosecution and extradition.

• • Scope of Application• The Convention applies to nuclear material used for peaceful purposes while in international nuclear transport and, with certain exceptions, while in domestic use, storage and transport. The Amendment extends

its scope to cover nuclear facilities and nuclear material in peaceful domestic use, storage and transport as well as sabotage. However, it does not extend to “all radioactive material and associated facilities”. • • Main Obligations• The Convention commits each State Party to undertake the following actions to ensure the physical protection of nuclear material—• Physical protection• To ensure that during international transport, nuclear material within its territory, or on board a ship or aircraft under its jurisdiction, is duly protected • Not to import, export or authorise the import, export or transit of nuclear material unless it has received assurances that such material will be protected during the international nuclear transport• To cooperate regarding guidance on the design, maintenance and improvement of systems of physical protection for nuclear material in international transport• Offenses• To make certain offenses punishable under its national law • To inform the depositary of its implementing laws and regulations • International cooperation• To notify the IAEA and other States Parties of its central authority and point of contact that have responsibility for the physical protection of nuclear material and for coordinating recovery and response operations • To extend cooperation and assistance in accordance with its national law in the recovery and protection of nuclear material in case of theft, robbery or any other unlawful taking of nuclear material or a credible

threat of such, and in connection with related criminal proceedings • • The Amendment strengthens the CPPNM in the three main areas: • It sets out a new undertaking by States Parties to establish, implement and maintain a physical protection regime applicable to nuclear material and facilities under their jurisdiction. This includes the

establishment of an appropriate legislative and regulatory framework and a competent authority responsible for its implementation. • It requires States Parties to make punishable under their national laws certain additional offenses such as smuggling and sabotage. • It expands the mechanisms for international cooperation and coordination, including through the nomination of points of contact, and enhances information sharing in addressing cases of sabotage and unlawful

acquisition of nuclear material and mitigating any resulting radiological consequences.

Other international instruments on nuclear security

• The international community has come to recognize that the threats to nuclear security have an international dimension that requires an international response and, through this, a strengthening of the ‘weakest link’ in the security chain. Among the documents relevant to nuclear security are the following:

• —The Physical Protection of Nuclear Material and Nuclear Facilities (INFCIRC/225/Rev.5);• —The International Convention for the Suppression of Terrorist Bombings (hereinafter the Terrorist

Bombings Convention) (1997);• —United Nations Security Council resolution 1373 (2001) on threats to international peace and security

caused by terrorist acts;• —United Nations Security Council resolution 1540 (2004) on non-proliferation of weapons of mass

destruction;• —The Code of Conduct on the Safety and Security of Radioactive Sources (2004) [16] and the companion

publication on Guidance on the Import and Export of Radioactive Sources (2005) ;• —The Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime

Navigation (SUA Convention) (2005);• —The Protocol of 2005 to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed

Platforms Located on the Continental Shelf (2005);• —The International Convention for the Suppression of Acts of Nuclear Terrorism (hereinafter the Nuclear

Terrorism Convention) (2005).

International legal framework: Safeguards

• Overview• Comprehensive Safeguards Agreements• Model Additional Protocol

International legal framework: Safeguards

• Significance • The purpose of the safeguards system of the IAEA is to provide credible assurance to the

international community that nuclear material and other specified items are not diverted from peaceful nuclear uses.

• • The safeguards system consists of several, interrelated elements: • the Agency’s statutory authority to establish and administer safeguards, i.e., Article III.A.5 of

its Statute; • the rights and obligations assumed in safeguards agreements and additional protocols. These

agreements are of three main types: (i) comprehensive safeguards agreements, (ii) item-specific safeguards agreements, and (iii) voluntary offer agreements. A State with any one of these agreements may also conclude a protocol additional to its safeguards agreement (hereinafter referred to as an ‘additional protocol’); and

• the technical measures implemented pursuant to those agreements. • These, taken together, enable the Agency to independently verify the declarations made by

States about their nuclear material and activities.

Comprehensive Safeguards Agreements

• A Comprehensive Safeguards Agreement to be concluded with the IAEA follows the structure and content set ou in IAEA document INFCIRC/153 (Corr.) and covers all nuclear material in a State. Under such an agreement, the State undertakes to accept Agency safeguards on all source or special fissionable material in all peaceful nuclear activities within the territory of the State, under its jurisdiction, or carried out under its control anywhere. This is not limited to nuclear material actually declared by a State (to verify its “correctness”), but includes any material that is required to be declared (to verify its “completeness”).

• For its part, Agency has a corresponding right and obligation to ensure that safeguards are so applied

on all such material, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.

• Virtually all comprehensive safeguards agreements have been concluded by non-nuclear- weapon States pursuant to their obligation under the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) to do so. However, comprehensive safeguards agreements are also required under other bilateral or multilateral arrangements. These include: the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (Tlatelolco Treaty); the South Pacific Nuclear Free Zone Treaty (Rarotonga Treaty); the Argentine-Brazilian Declaration on Common Nuclear Policy; the Treaty on the Southeast Asia Nuclear Weapon-Free Zone (Bangkok Treaty); the African Nuclear-Weapon-Free Zone Treaty (Pelindaba Treaty); and the Central Asian Nuclear-Weapon-Free Zone Treaty.

Model Additional Protocol• The Protocol Additional to Agreement(s) between State(s) and the IAEA

for the Application of Safeguards (INFCIRC/540 (Corr.)), referred to as the Model Additional Protocol, aims to further strenghten the Agency’s safeguards measures. The Protocol is designed for States with a safeguards agreement with the Agency. It equips the Agency with important new tools to verify the correctness and completeness of States’ declarations under comprehensive safeguards agreements: that there is no indication of diversion of declared nuclear material from peaceful activities (including no misuse of declared facilities or LOFs) and no indication of undeclared nuclear material and activities for the State as a whole.

• NOTE: CONSULT THE RELEVANT CONTENT OF THE E-LEARNING MODULE ON SAFEGUARDS

International legal framework: Nuclear liability

• Overview• Vienna Convention on Civil Liability for

Nuclear Damage and its 1997 Protocol• Convention on Supplementary Compensation

for Nuclear Damage• Joint Protocol relating to the application of

the Vienna Convention and the Paris Convention

International legal framework: Nuclear liability

• Why join an international civil liability regime

• The liability conventions aim to ensure that adequate compensation for nuclear damage suffered in one Contracting Party is promptly available from the liable operator of a nuclear installation situated in another Contracting Party by establishing a harmonized nuclear liability regime setting out the main nuclear liability principles. In principle, the conventions only apply to nuclear incidents and nuclear damage suffered in the territory of a Contracting Party. For that reason, treaty relations are important. Nuclear liability treaties do not apply to radioactive sources, low risk facilities and small quantities of nuclear material.

• • 2.4.2 Overview• • [Insert: official IAEA diagram on overview of conventions] Explanation of diagram: There are various nuclear liability treaties that may be separated into the Vienna

(IAEA) instruments, open to all IAEA member States, and the Paris (OECD) instruments, open to OECD member States. Though containing similar fundamental liability principles, these conventions may differ somewhat into its material and geographical scope of application. The Vienna and Paris Convention are linked through the Joint Protocol, but cannot link CSC Annex States that are not party to the Vienna or Paris Convention. Therefore the CSC was established as an umbrella convention linking all States together, whether Contracting Party to the Vienna Convention, Paris Convention, Joint Protocol or CSC Annex States.

• • [Insert: official diagram on overview of main principles – the flower] Explanation of flower elements:• Liability without fault: i.e., strict liability, the victim does not need to prove fault of the liable operator. Exonerations are limited: operator is liable for terrorist acts,

and in the modern liability conventions, also for grave natural disasters, but not for war-like events.• Channeling of liability: All liability is channeled only and exclusively to the operator, and no claims are possible under any other law. (e.g., suppliers cannot be held

liable, also not under other laws).• Liability limited in time: actions must be brought 10 years from the date of the nuclear incident (under all conventions), extended to 30 years for personal injury

(revised conventions).• Liability limited in amount: the operator’s liability is limited to a specific amount as specified within the treaties and national implementing domestic law, varying per

treaty and country (under the CSC and 1997 Vienna Convention this is fixed to a minimum of 300 million SDRs).• Financial security: the operator is required to take out financial security to cover its liability, without which operation of reactor is not allowed. To this effect, national

insurance pools are normally created in a State, to provide coverage which otherwise is not available for nuclear damage. • Channeling of jurisdiction: all claims are to be channeling to one court in the Contracting Party, in whose territory (or territorial sea and/or EEZ), the nuclear incident

occurred. A judgment of the court is enforceable in all other Contracting Parties.• Non-discrimination: The nuclear liability conventions and the national law applicable thereunder are to be applied without any discrimination based upon nationality,

domicile or residence.

Vienna Convention on Civil Liability for Nuclear Damage and its 1997 Protocol

The Convention aims at harmonizing the national law of the Contracting Parties by establishing some minimum standards for compensation for damage resulting from certain peaceful uses of nuclear energy. Under the convention liability for nuclear damage is channeled to the operator of a nuclear installation and requires the operator to take out financial security for such amount as specified in the convention and national law. The Convention applies to nuclear damage arising out of nuclear incidents occurring at nuclear installations as defined in the Convention (i.e. land based reactors, factories for the production or processing of nuclear material, facilities where nuclear material is stored unless storage is incidental to transport), or in the course of transport of nuclear material (nuclear fuel, excluding natural and depleted uranium, and radioactive products or waste) to or from such installations. The Convention does not apply to installations and radioactive substances which do not pose the risk of large-scale nuclear damage, i.e. radioisotopes in the final stage of fabrication and usable for scientific, medical, agricultural, commercial or industrial purposes. Nuclear damage is defined so as to cover, as a minimum, loss of life or personal injury and loss of or damage to property, but national law can cover any other loss or damage caused by nuclear incidents.

The 1997 Vienna Convention extended its scope of coverage to include a threat of a nuclear incident and “damage wherever suffered”, even within a State’s Exclusive Economic Zone, and enlarged types of nuclear damage to be compensated to economic loss, income loss, costs of reinstatement measures of impaired environment and of preventive measures, as specified.

Convention on Supplementary Compensation for Nuclear Damage

The Convention aims at establishing a worldwide liability regime in which all States may participate. Accordingly, the Convention is open not only to States that are party to either the Vienna Convention on Civil Liability for Nuclear Damage or the Paris Convention on Third Party Liability in the Field of Nuclear Energy (both Conventions being defined so as to include any amendment thereto), but also to other States provided that their national legislation is consistent with uniform rules on civil liability laid down in the Annex to the Convention, which contain the nuclear liability principles in line with those provided in the Paris and the Vienna Conventions. In addition, the Convention aims at establishing a minimum national compensation amount and at further increasing the amount of compensation through public funds to be made available by the Contracting Parties in the event that the national amount is insufficient to compensate the damage caused by a nuclear incident. (Individual State contributions in case of a nuclear accident can be calculated online - link to calculator). The CSC not only provides a linkage for all countries worldwide, but in addition provides for the modernized nuclear liability principles and increases compensation through an international public fund.

Joint Protocol relating to the application of the Vienna Convention and the Paris Convention

The Joint Protocol is designed to establish a link between the Vienna Convention and the Paris Convention by mutually extending the benefit of nuclear liability regime. It will apply the rules on nuclear liability for compensation in case of a nuclear incident to the Paris Convention Contracting Parties as though they were party to the Vienna Convention, and vice versa. Therefore, under the Joint Protocol, a victim in a Paris Convention State will have access to the compensation from the liable operator in a Vienna Convention State, and vice versa. It also aims to eliminate conflicts that may arise from the simultaneous application of both Conventions to the same nuclear incident. Accordingly, the Joint Protocol is only open to States that are Parties to the Vienna Convention or to the Paris Convention, both Conventions being defined so as to include any amendment thereto.

Topic Summary

KNOWLEDGE CHECK PLACEHOLDER

Part 3 Topics• [1] Creating a comprehensive nuclear law

• The regulatory body• Regulatory Framework• Radiation Protection• Radioactive sources• Nuclear facilities • Emergency preparedness and response• Mining and Milling• Transport of Radioactive Material• Radioactive waste and spent fuel management• Nuclear security• Safeguards• Export and import controls• Nuclear liability and coverage

[2] Revision of other laws

Enacting a comprehensive nuclear law

• A comprehensive national nuclear law should cover all activities, facilities and materials, as well as sources in in the State.

• A comprehensive national nuclear law reflects the safety, security and safeguards (3S concept) adding liability, which need to be addressed in an adequate legislative framework. This 3S concept helps to avoid gaps, overlaps and inconsistencies in the law.

• All elements of a comprehensive national nuclear law should commensurate with the extent and the nature of activities and facilities, sources it must regulate.

• A comprehensive national nuclear law should be placed in high level of the legal system.

The Regulatory BodyA Fundamental element of a comprehensive national nuclear law is the establishment and the maintenance of a regulatory body with legal powers and

technical competencies. • The first factor is the regulatory body’s basic structure and composition. States with different governmental organizations and legal traditions will

obviously structure their regulatory bodies in different ways. • One element related to organizational structure is the regulatory body’s reporting arrangements. If a regulatory body cannot provide information on

its safety judgements or about safety related incidents at licensed facilities without the approval of another organization, issues of independence and transparency will arise. The reporting arrangements should therefore be such that the regulatory body can provide safety related information to the government and the public with the maximum degree of directness and openness.

• A second element concerns the need for an appeals process for disputes concerning regulatory judgements. A process must be provided for resolving

such disputes that does not give the appearance that regulatory judgements are subject to a reversal for extraneous reasons. The national legal system should include a process whereby appeals are dealt with either through a hierarchy of administrative bodies or through the judiciary.

• Independence and separation of regulatory functions. A fundamental requisite for an effective regulatory body is that it possesses an adequate

measure of independence or functional separation from entities having interests or responsibilities that could unduly influence regulatory decision making. Such entities include not only the regulated industry and medical users of radioactive material and technology, but also other governmental bodies charged with the development or promotion of the technology, as well as political bodies and non-governmental bodies.

• It is important to recognize that regulatory independence cannot be absolute. The ‘effective independence’ of the regulatory body does not require

that a regulatory body be completely isolated from other governmental bodies. Responsible regulatory decision making requires the appropriate involvement of legitimate, recognized interests, both governmental and non-governmental. However, the regulatory body must be able to exercise its key regulatory functions (standard setting, authorization, inspection and enforcement) without improper pressure or constraint. Recognized means of achieving such effective regulatory independence include:

—Institutional separation of regulatory and non-regulatory functions;—Fixed terms for regulatory officials;—Constraints on removal of regulatory officials on political grounds;—Separate budgetary and employment authority for the regulatory body;—Reporting to an official or organization without conflicting responsibilities;—Unrestricted access to press, media and the public.

Regulatory body continued• Adequate human and financial resources. Adequate human and financial resources are essential for enabling a

regulatory body to fulfil its responsibilities. Also, a regulatory body’s control over its resources, through separate budgetary and staffing authority, has an important bearing on its independence. If a regulatory body must rely entirely on the assessments of others, its independence may be compromised. Therefore, a regulatory body should be charged with making complex technical judgements so that it must have access to expert personnel who can make such judgements or who can assess those of others.

• The other related crucial factor is financial resources, which must be sufficiently predictable and reliable, adequate and not subject to undue control by external bodies. Therefore, to the extent feasible given the State’s budgetary process, the regulatory body should have the ability to develop its own budget and make the case vis-à-vis the legislature or the government for the level of funding necessary for implementing its responsibilities.

• Advisory bodies and external support. Although, the regulatory bodies should be provided with adequate human

and financial resources to fulfil their responsibilities, it should be ensured that in some circumstances it can obtain the necessary technical support and policy advice.

• If the regulatory body lacks the technical personnel necessary in order to discharge its responsibilities, or a specific

issue or programme may not be available within the regulatory body itself, the nuclear law should enable it to secure the services of technical experts or to arrange for the necessary technical work to be carried out under contract. It is, of course, important that the providers of the external expertise (e.g. contractors, universities, technical support organizations and scientific institutes) have the maximum degree of independence from the bodies engaged in the development or promotion of nuclear energy.

Regulatory FunctionsA State’s nuclear law should set forth the regulatory functions essential for protecting public health, safety and the

environment. The functions can be grouped into four categories: • • Establishing requirements and regulations• A central function of a regulatory body is developing rules covering its areas of responsibility, therefore the national

nuclear law should clearly identify this function.• Licensing (including the prohibition of operations without a licence); • A comprehensive national nuclear legislation should clearly state that using nuclear energy without prior authorization

is prohibited. Also, it should provide for the regulatory body to grant, amend, suspend and revoke authorizations and to set conditions for granting them. The national nuclear law does not contain typically detailed technical requirements, but it can be useful to set forth basic legal requirements for the most significant aspects. It should be noted that the actions of suspension, modification and revocation of authorizations (licences) can have an enforcement aspect. . If suspension, modification and revocation are included in both the authorization and the enforcement sections of a law, care must be taken to ensure that such provisions are fully consistent. These actions also relate to inspection, given the need to provide inspectors with the ability to suspend a licence in cases where an imminent safety or security threat may be present, even without formal action by the regulatory body.

• Inspection• Licensing nuclear related activities and nuclear material would be useless without the power to determine whether

licensees comply with the terms and conditions of the licences. Therefore, the regulatory body must have access to sites and facilities at which nuclear technology and material are being used, to ensure that public health and safety are being adequately protected. It must also be authorized to require operators to provide all necessary information, including information from suppliers. The law should provide for procedures whereby the regulatory body can require operators to carry out safety assessments, including safety reassessments or periodic safety reviews over the lifetime of a facility.

Regulatory Functions (cont.)• Enforcement • Immediate enforcement measures may need to be taken directly by inspectors, particularly in cases which may pose an

imminent risk of radiological injury to persons or substantial damage to property or the environment. In this regard, inspectors should have the authority to suspend activities and to require corrective actions by the authorized person (licensee).

• Enforcement measures include procedures for determining and acting upon situations that do not comply with applicable laws, regulations and conditions of authorizations (licences), which have the objective of achieving compliance with and avoiding recurrence of infringements of the law or applicable regulations.

• Enforcement relies on a range of sanctions or penalties to deter noncompliance (violation), to terminate unauthorized (unlicensed) activities and to punish wilful violations. Penalties should be commensurate with the seriousness of the non-compliance (violation). Such penalties can range from suspension of an authorization (licence) for a period of time until the violation is remedied to civil monetary fines or even criminal penalties for particularly serious acts of non-compliance (violation).

• Suspension and revocation can therefore be even more significant than a monetary fine. Criminal prosecutions are typically not conducted directly by the regulatory body, but are assigned to the governmental department or ministry responsible for such actions.

• The national nuclear law should provide an opportunity for persons concerned to seek a review of the regulatory body’s decision through the State’s normal appellate procedure.

• • Other functions should also be considered in the legislation, such as the provision of information on regulated activities to

the public, the media, the legislature and other relevant stakeholders. Furthermore, a regulatory body should be permitted to co-ordinate its activities with the activities of international and other national bodies involved in nuclear safety.

• • [Handbook on Nuclear Law, 2003, pg. 25-42. and Handbook on Nuclear Law: Implementing Legislation, 2010, pg. 25-45.]

Radiation Protection• Nuclear law must establish a legislative framework for the safe management of all sources and types of ionizing radiation. It should, in particular, ensure that

individuals, society and the environment are adequately protected against radiological hazards, and it should cover not only practices but also interventions. It should, in addition, cover the medical uses of radiation, situations in which a patient may be voluntarily exposed to high doses of radiation for therapeutic purposes.

• • It should reflect the basic safety principles (justification, optimization and dose limitation).• • In the case of practices, the law should ensure that they are ‘justified’, which means that they produce sufficient benefit for the exposed individuals and for society to

offset the radiation detriment that they may cause (the principle of justification).• • Furthermore, it should ensure that doses, the number of people exposed and the likelihood of incurring exposure are at all times kept as low as reasonably

achievable (the ALARA principle of optimization).• • It should impose restrictions on the dose that an individual may incur (dose limits), so that no person is subject to an unacceptable risk attributable to radiation

exposure (the principle of minimization).• • The law should exclude those cases of exposure to ionizing radiation for which the magnitude or likelihood of the exposure is unamenable to control, for instance

exposure to the natural radioactivity in the human body and to cosmic rays at ground level.• • Besides setting the conditions for the issuance of a licence, the regulatory body determines which activities or materials may be exempted and which may be cleared

from regulatory control.• • Absence of a justification is a reason for the regulatory body to refuse to issue a licence. However, activities are deemed not to be justified if they would result in a

deliberate increase in the activity of radioactive substances in the associated commodities or products.• • Clearance is an important concept. It means the removal of radioactive material or radioactive objects involved in authorized practices from further control by the

regulatory body. Clearance levels are values, established by the regulatory body, below which sources of radiation may be released from regulatory control. Clearance is thus the release of materials whose activity level is so low that no form of post-release regulation is required in order to ensure that the public is sufficiently protected.

• • [Handbook on Nuclear Law, 2003, pg. 45-53. and Handbook on Nuclear Law: Implementing Legislation, 2010, pg. 47-57.]

RADIOACTIVE SOURCES (safety and security)

• In many States, the use of radioactive sources in medicine, agriculture or industry is the sole or primary activity involving ionizing radiation. In view of the extremely large numbers of portable sealed sources used around the world, the task of ensuring their safety and security can pose significant challenges.

• • When a sealed source reaches the end of its useful life (becomes a disused source), it should be disposed of or returned to the manufacturer for recycling. Unfortunately, disused sources are often

discarded. Sometimes discarded sources give rise to accidents. • • Growing concern has also focused on a number of radioactive sources in some States that were not subject to adequate regulatory control, either because such control had not been initially established or

because it had somehow been lost (orphan sources). It is therefore essential that in the law the regulatory body be provided with the means necessary for effectively controlling all major sources in the State.

• • A comprehensive national nuclear law dealing with radioactive sources should clearly define what is understood by that term. As the radioactive sources should be categorized. This categorization should be

based on an assessment of the likelihood of injury to persons who might come into contact with such sources. Furthermore, it should serve the following five purposes:•

– to bring all radiation sources in the State under regulatory control;– to provide that all radiation sources in the State be kept under regulatory control in such a way that they can be traced;– to prevent the unlawful use of radiation sources within the territory of the State and to provide for the punishment of offenders in the event of unlawful use;– to provide for an effective response in the event that radiation sources that have escaped regulatory control are discovered and reported;– to plan for the mitigation of accidents.

• • Beside the categorization the following provisions should be considered for inclusion in a comprehensive national nuclear to ensure that:• • (1) appropriate measures should be taken to protect people and the environment so that radioactive sources are safely managed and securely protected during and at the end of their useful lives and that

safety culture and security culture are promoted;• (2) States should have in place an effective national legislative and regulatory system of control over radioactive sources, with prime responsibility for safety and security placed on the authorized person

(licensee), national strategies for gaining or regaining control over orphan sources, and measures to reduce the likelihood and to mitigate the consequences of malicious acts, including sabotage;• (3) appropriate facilities and services for radiation protection, safety and security should be available to authorized persons;• (4) adequate arrangements should be in place for training of staff of the regulatory body, law enforcement agencies and emergency services organizations;• (5) States should establish a national register of radioactive sources;• (6) information concerning any loss of control over radioactive sources or any incidents with potential transboundary effects should be provided to potentially affected States through established IAEA or

other mechanisms; (In spite of inventory keeping and controls, some sources are lost, therefore the law should require the finders of such to report them to the regulatory body.)• (7) States should promote awareness of the safety and security hazards associated with orphan sources to relevant persons and organizations, and should encourage persons or entities likely to encounter

such sources to implement appropriate monitoring and detection programmes;• (8) States should encourage the reuse or recycling of radioactive sources when practicable;• (9) the safety and security responsibilities of designers, manufacturers, suppliers and users of radioactive sources and devices in which they are used should be emphasized;• (10) States should define their domestic threats and assess vulnerabilities based on the potential for loss of control and malicious acts;• (11) appropriate measures should be taken to protect confidential information consistent with national laws.

Nuclear facilities Nuclear facilities are those facilities associated with the nuclear fuel cycle. They include nuclear fuel fabrication plants, research and test reactors, power reactors, spent fuel

storage facilities, enrichment plants, reprocessing facilities, radioactive waste management facilities and radioactive ore mines and milling plants. • A comprehensive national nuclear law requires dealing with issues during the whole lifecycle arising from the siting, design, construction, commissioning, operation

and decommissioning of nuclear power plants can be extremely complex and detailed. • The nuclear law should two requirements: a nuclear safety requirement that the facilities be safe to operate with a very small probability of accidents; and a radiation

safety requirement that the radiation exposures in normal operation be below certain limits for both personnel and for members of the public. • In the law, the reactive approach must be ensured, so that the operating organization formulates plans, proposals or suggestions, and the regulatory body evaluates

them and, on the basis of current safety criteria, determines to what extent they are acceptable. • Concerning the role of the regulatory body, the licensing procedure can be various in States. Some States require one licence, but subdivide it into several

components. Other States require individual licences for different stages of construction and operation. To grant one comprehensive licence is not practicable. More commonly subdivided into six stages according to lifecycle: Siting; Design; Manufacturing and construction; Commissioning; Operation; Decommissioning.

• Furthermore, the continuous control should also be required to be promulgated, because the licence granted to the operating organization at the beginning cannot

remain valid over 30-40 years until the nuclear installation is under operation. • The law should give the regulatory body the right to modify, suspend or even revoke an operating licence. To preclude arbitrary decisions by the regulatory body and

to give the operating organization guarantees on the security of its investment, it is essential that the conditions under which such measures are justified be clearly specified in the legislation.

• In relation to the role of the operator, a comprehensive national nuclear law should include that the operator bears the prime responsibility for safety. The operator

must take technical safety measures and comply with the binding provisions of the licence. In particular, it must apply the defence in depth principle, according to which, because of the presence of several physical barriers and several levels of protection, an unintended release of radioactivity into the environment cannot result from just a single failure, but requires multiple failures. The operator must have a very high level of commitment to safety, best expressed by a highly developed safety culture. It is essential that the operator verifies it, by ensuring that events important for safety are reviewed in depth and that, when necessary, equipment is modified, procedures are revised and training is given in order to prevent a recurrence. The operator must also carry out systematic reviews of safety in order to confirm that the safety analysis of the facility is still valid or, if necessary, to implement safety improvements.

• All nuclear facilities will cease operation at some time and may be dismantled. Decommissioning is the process by which the facility is taken permanently out of

operation. This stage also should be addressed in the national nuclear law.

Emergency preparedness and response

• There must be a system in place designed to reduce the risk of emergencies and to mitigate their consequences. Emergency planning and preparedness are required for all human activities. It follows that in all States there already exist general organizational structures to deal with emergencies. Special nuclear and radiological emergency planning may, as appropriate, be based on existing emergency organizations, which will probably need to be complemented by the provisions necessary for their specific purpose.

• • In a comprehensive national nuclear law on-site and off-site emergency preparedness must be addressed. • • On-site emergency preparedness and response comprises all measures necessary for detecting reliably

and in a timely manner incidents likely to create an emergency, for keeping them under control and for bringing them to an end with as little damage done as possible.

• • Off-site emergency preparedness and response is aimed at minimizing the radiation exposure of the

public and the environment. Basic elements are information exchange and assessment of the information available. It is especially important that on-site information be passed to off-site bodies, and vice versa.

• • The roles and responsibilities of the different parties in case of emergency situations must be allocated

clearly in the law. Furthermore, national and transboundary emergency plan and its regular review are also essential to be promulgated.

Mining and milling• Mining is the process of extracting materials from the Earth; milling is the operation whereby

the extracted materials are finely ground in order to facilitate the separation of the valuable materials, primarily uranium and thorium ores in the case of materials intended for nuclear related activities.

• • In the mining and milling context, the purpose of nuclear legislation is to ensure that the mine

or mill workers, the public and the environment are adequately protected against radiological hazards while the mine or mill is in operation. Such legislation must also provide for radiation protection before the opening of the mine (during the period of exploration) and after the closure of the mine or mill.

• • Concerning mining and milling, provisions should be added to the regulatory body and

regulatory functions (including radiation protection and decommissioning, as appropriate) on identification of the specific areas of mining and processing activities, listing of the information required of an applicant to engage in mining or milling activities (this listing should be keyed to licensing criteria to be implemented by the regulatory body), as well as major licensee responsibilities, including the duty to provide prompt information and seek authorization for any changed activities that could pose radiation hazards.

Transport of radioactive material • A special feature of the transport of radioactive material is the mobility of the risk source; that is, the mobility of the

material being transported. Unlike the situation in a stationary facility, the environment of the material being transported is subject to change. Mobility creates safety problems, but it may at the same time provide a safety advantage, since the material can easily be removed from an endangered or a dangerous environment.

• • The two main technical means of protecting against hazards due to the transport of radioactive material are the

containment of the material and the control of external radiation levels. Criticality and damage caused by heat must also be taken into consideration in the transport of nuclear fuel elements.

• • A number of international legal instruments covering air, sea and land transport have incorporated the IAEA Transport

Regulations. This provides a highly desirable level of uniformity in how radioactive material is managed in international commerce. Such uniform treatment obviously makes a major contribution towards enhancing the safety and security of nuclear and other radioactive material during international transit.

• • Many States incorporate these regulations directly into their own national regulatory arrangements. Thus, even for States

with modest programmes for using radioactive material, it is useful for national legislation to reference the IAEA Transport Regulations and to translate them into the national language.

• • The whether by referring or including the transport regulations it should cover all categories of radioactive material,

ranging from very low activity material, such as ores and ore concentrates, to very high activity material, such as spent fuel and high level waste; furthermore it should have requirements with regard to the marking, labelling and placarding of conveyances, documentation, external radiation limits, operational controls, quality assurance, notification and the approval of certain shipments and package types.

Radioactive waste and spent fuel • In a comprehensive national nuclear law, ways and means of achieving and maintaining a high level of safety in the

management of radioactive waste and spent fuel should be provided for, and also effective defences against potential hazards required to be ensured during all stages of radioactive waste and spent fuel management.

• • In the law the State should reflect its nation policy and strategy approved.• • A comprehensive national nuclear law should reflect that any owner of and any person handling radioactive waste must be

licensed. Siting, designing, constructing and operating a radioactive waste management facility can be authorized only if the owner and the operator of the facility have been licensed by the regulatory body. All licences should be limited in time. In the case of disposal facilities, however, the licence should not expire with the closure of the facility, but only when the regulatory body decides that active institutional control of the facility is no longer required. The primary responsibility for the safety of radioactive waste management facilities rests with the holder of the relevant licence. Where there is no such holder, as in the case of some past practices, the responsibility rests with the State, as administered by the relevant regulatory body.

• • (Storage and disposal facility: The difference between storage and disposal is that the first implies an intention to retrieve

the radioactive waste and the second implies an intention not to retrieve it.)• • The law should specify that the legal owner of the waste is responsible for its safe disposal. If the legal owner is unknown

or has ceased to exist, responsibility for disposal will rest with the State.• • Every State has the right to ban by law the import of foreign radioactive waste into its territory and the export from its

territory of radioactive waste generated there.

Nuclear Security• Protecting nuclear material and facilities from the risk of theft or other unauthorized diversion and of sabotage has

traditionally been considered a matter particularly within the domestic jurisdiction of sovereign States.• • It has also long been recognized that the manner in which a State is meeting (or not meeting) its responsibility to protect

nuclear material and facilities is not a matter of indifference to other States: nuclear material stolen in one State could obviously be used for terrorist purposes in another State; and the sabotage of a nuclear facility in one State could have transboundary effects in other States.

• • A set of objectives and principles for physical protection that can provide additional guidance to States in developing their

comprehensive national nuclear law legislation for preventing the theft, misuse or sabotage of nuclear material and facilities, such objectives are:

• (a) Protect against unauthorized removal of nuclear material in use and storage, and during transport;• (b) Ensure the implementation of rapid and comprehensive measures by the State to locate and recover missing or stolen

nuclear material;• (c) Protect against sabotage of nuclear facilities and sabotage of nuclear material in use and storage, and during transport;• (d) Mitigate or minimize the radiological consequences of sabotage.•

• A comprehensive national nuclear law should cover nuclear material being shipped in international transport, and also all domestic activities involving nuclear material and facilities that could pose a risk to public health and safety, to national security or to the environment, and to any facilities in which relevant types and quantities of such nuclear material are used.

•

• Reflecting the above mentioned objectives and principles, the key elements that a comprehensive national nuclear law should include provisions on:

• the establishment of a design basis threat of the diversion and unauthorized use of nuclear material or sabotage, and its regular review;

• the responsibility for the establishment, implementation and maintenance of a physical protection regime within a State rests entirely with that State;

• the designation of a regulatory body responsible for the implementation of the legislative and regulatory framework;• provide legal power to serve its functions (licensing, inspection and enforcement) also in the field of nuclear security;• the statement that the authorized person (licensee) in the possession or control of nuclear material bears the primary responsibility

for its physical protection;• similarly to the concept of safety culture in the nuclear safety field, a security culture includes characteristics and attitudes in

organizations and individuals that establish that physical protection issues receive the attention warranted by their significance. The law should be drafted to give due priority to a security culture by all relevant persons and organizations.

• the establishment by the law of a well designed and well supported State system for recording and monitoring the quantities and locations of the nuclear material under the State’s jurisdiction or control. Such an SSAC serves two important functions: first, through the timely detection of any cases of missing nuclear material, it helps to deter unauthorized activities involving the missing material, particularly illicit trafficking; and, second, through its accurate record of nuclear material quantities and locations, it enables the State to make realistic, up to date assessments of possible threats to material under its jurisdiction or control.

• the development and implementation of contingency (emergency) plans for responding to the unauthorized removal and subsequent unauthorized use of nuclear material, the sabotage of nuclear facilities and attempts to perpetrate such acts. It should make clear the respective responsibilities of operators and governmental bodies at various levels with regard to such plans, provide for co-operation and co-ordination among all relevant bodies and designate the entities having the primary responsibility for various functions. It should provide for the plans to be implemented by all licence holders and authorities concerned.

• set punishable offenses i.e. theft, robbery, sabotage, smuggling;• appoint a contact point having responsibility for the physical protection of nuclear material and for coordinating

recovery and response operations;• the protection of confidentiality of information whose unauthorized disclosure could compromise the physical

protection of nuclear material and nuclear facilities and also in the event of breaching that.• • A comprehensive national nuclear law should include provisions on Illicit trafficking, which may occur if physical

protection is failed. In this regard, co-ordination at the national and the international level and the provision of appropriate information were identified as key elements in combating illicit trafficking.

• • It should be noted that there is a link between nuclear safety and security, because the design and the operation

of nuclear power plant should provide adequate measures to protect the plant from damage and prevent the unauthorized release of radioactive material arising from unauthorized acts.

• NOTE: ADD ALSO A HEADING ON CRIMINAL OFFENCES [See pages 137-147 of the Handbook on Nuclear Law, Vol. II]

Safeguards• Safeguards provisions in a comprehensive nuclear law ensure that nuclear material is not diverted for use in the production of nuclear weapons or other

nuclear explosive devices, safeguards being the primary means of verifying compliance by States with undertakings not to use safeguarded items for unauthorized purposes. Also, safeguards enable the IAEA to review information, reports and records provided by or available in a State for the purpose of preventing the unauthorized use of nuclear material.

• • International safeguards, as implemented by the IAEA, represent a key means of verifying the compliance by States with commitments not to use nuclear

material or technology to develop nuclear weapons or other nuclear explosive devices.• • Safeguards comprise three functions which are required to be involved in a comprehensive national nuclear law: accountancy, containment and surveillance,

and inspection. • • Accountancy measures require a State to report to the IAEA the types and quantities of fissionable material under its control. The ability of a State to

provide accurate information in a timely manner depends on the establishment of a State system for accounting and control (SSAC) capable of tracking relevant material.

• • Containment and surveillance measures are applied by the IAEA through the use of seals on nuclear material containers and filmed or televised recordings

of key areas at nuclear facilities to determine whether unauthorized movements of material have occurred. • • Inspections are conducted by IAEA inspectors to verify that the declared quantities of nuclear material are where they are declared to be, and that there is

no undeclared nuclear material in the State. Inspection activities include checking seals and instruments, reviewing facility records and independently measuring material or other items listed in accountancy documents subject to safeguards.

• • The ability to perform the three functions described, and the scope of material and facilities to be covered by IAEA safeguards agreements, is determined by

the legal obligations that a State has assumed through treaties and by the type of safeguards implementation agreement that the State has negotiated with the IAEA.

• • The main elements of a comprehensive national nuclear law depend on the State’s adherences in this regard.• • NOTE: CONSULT THE RELEVANT CONTENT OF THE E-LEARNING MODULE ON SAFEGUARDS

Export and import controlsThe monitoring and control of nuclear transfers between and among States is an essential element of the global nonproliferation system and

thereof a comprehensive nuclear law as well. Establishing an adequate legislative framework for nuclear export and import controls is important for all States. Even States that are neither exporters nor importers of nuclear material or technology need a basis for controlling any nuclear transfers through their territories. The purpose of transit jurisdictions is to ensure that States do not become unwitting accessories to improper nuclear transfer schemes.

• • A comprehensive nuclear law should ensure that

• transfers of nuclear material, equipment and technology (whether into or out of the State) take place in a secure, safe and environmentally responsible manner;• such transfers do not directly or indirectly assist any non-nuclear-weapon State or any unauthorized person in developing or acquiring nuclear explosive devices

or using nuclear material for unauthorized purposes;• the fulfilment of the State’s legal obligations under international legal instruments adhered to (i.e. the NPT, the CPPNM, the Joint Convention or one of the

regional non-proliferation treaties) and instruments such as bilateral agreements for nuclear co-operation with other States.

• • Main elements are • A clear assignment of responsibilities to authorities responsible for conducting the export and import control process.• As with all other activities involving nuclear material and technology, a transfer of such commodities and information across national

boundaries should be permitted only after the issuance of a licence (or permit or other authorization) that clearly states the essential features of the transfer.

• The responsible authorities have clear powers to inspect and monitor licensed activities and to ensure the enforcement of its requirements and procedures.

• The substantive requirements for authorizing transfers of nuclear material or technology will parallel a State’s obligations under the relevant international instruments and that State’s national policies regarding nonproliferation, nuclear safety and radioactive waste management.

• Provisions regarding illicit trafficking should be carefully reviewed to ensure their consistency with the laws dealing with physical protection. Discrepancies in the scope of coverage, requirements, definitions or procedures between, on the one hand, export and import control legislation and, on the other hand, legislation against illicit trafficking, can lead to inefficiency and confusion in these two closely related fields.

Nuclear Liability and coverage• A comprehensive national nuclear law includes provisions on nuclear liability and coverage. These provisions should

(prescribed in the international legal instruments) must include:• • (a) a defined scope for the liability regime based on specific concepts, namely, ‘nuclear installation’, ‘operator’,

‘nuclear incident’ and ‘nuclear damage’;• (b) strict (no fault) liability imposed on the operator of a nuclear installation (also referred to as ‘absolute’ liability);• (c) exclusive liability of the operator (so-called legal channelling of liability onto one person — namely, the operator

— to the exclusion of other persons);• (d) exonerations of the operator from liability only in certain exhaustively enumerated circumstances (e.g. nuclear

incidents directly due to warlike events, grave natural disasters of an exceptional character, conduct on the part of the person suffering the damage which amounts to gross negligence or intent to cause damage);

• (e) possibility of limiting the liability in amount;• (f) mandatory financial security of the operator to meet liability;• (g) limitation of liability in time;• (h) non-discrimination and equal treatment of victims;• (i) exclusive jurisdiction of a single competent court;• (j) obligation to recognize and enforce final judgements entered by the competent court in other contracting States

without re-examination of the merits.• • According to the international legal instruments a comprehensive national law should include provisions on liability

for nuclear damage occurring during transport.

Identify other laws that need to be reviewed/revised

When nuclear legislation is being drafted, legislators must consider the impact that national legal requirements in non-nuclear fields may have on achieving the objectives of the legislation. Those national legal requirements may derive from an enormous range of laws. In the case of nuclear installations, for example, a minimum list of related laws could well include laws relating to:

(a) Local land use controls;(b) Environmental matters (e.g. air and water quality and wildlife protection);(c) The economic regulation of electric power utilities;(d) The occupational health and safety of workers;(e) General administrative procedures of governmental bodies;(f) Transport;(g) The export and import of nuclear material;(h) Intellectual property rights;(i) Liability for non-nuclear damage;(j) Emergency management;(k) Taxation.A thorough understanding of relationships is necessary, of course, in order to avoid conflicts and confusion in the

application of laws. Another aspect, however, is the avoidance of duplication in the handling of issues within the national legal framework. If an issue is being handled adequately and if the existing legislation can be expected to deal effectively and efficiently with issues that may arise out of planned nuclear related activities, separate nuclear legislation is not needed. Legislative restraint may sometimes be as appropriate as legislative activism in the case of nuclear related activities.

Topic Summary

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Part 4 Topics

• [1] Developing a legal framework within the milestones approach– Introduction to milestones approach– Introduction to Bredonia Scenario– Legal Framework within the milestones approach– Key activities during Phase 1, Phase 2 and Phase 3

Meeting

28th July 2016• Bredonia NEPIO• Participants:

– Fion Lamaba Minister of Justice– Neil Hannan Bredonia NEPIO– Caro Sellense Legal Advisor– Karl Rosenstrom Advisor to the Prime Minister of Bredonia

• Topics • [1]Legal framework in the context of the milestones approach• [2]Key Activities: Phase 1, 2, 3

The Milestones Approach

19 Infrastructure Issues – Legal Framework

Introduction to Bredonia Scenario

• The state of Bredonia has embarked on a Nuclear Power Programme as a component of their long term strategy.

• Their intention is to build two 1000 MWe nuclear power plants (NPPs).

• In this module we will illustrate how the legal framework would be created by the organizations involved in Bredonia’s Nuclear Power Programme.

Organizations involved

There are a number of organizations involved in developing the legal framework for the implementation of nuclear power in a country including the Government, Nuclear Energy Programme Implementing Organization (NEPIO), and Bredonia Nuclear Regulatory Authority (the regulator).

Ministry of Foreign Affairs

Scenario timeline

March 2015 March 2018 April 2023

15/09/2015 IAEA Workshop

28/07/2016 Bredonia NEPIO

11/09/2016 Bredonia Nuclear Regulatory Body meeting

23/10/2015 Ministerial Briefing 06/02/2017 Ministry of Justice meeting

17/04/2017 Ministry of Justice meeting

Legal Framework in the Milestones Approach

The milestones approach provides for activities that should be completed within three phases to reach the following milestones: (1) ready to make a knowledgeable commitment to a nuclear programme, (2) ready to invite bids/negotiate contract for the first NPP, and (3) ready to commission and operate the first NPP.

The legal framework for a nuclear power programme should be in place at an early stage to adequately regulate, guide generally provide support to all activities to be undertaken in respect thereof

• During Phase 1 the country should have plans to adhere to the relevant international instruments, to develop legislation covering all aspects of nuclear safety, security, safeguards and civil liability for nuclear damage and to identify other relevant legislation. During this phase the country has to ensure, inter alia, that the implications of joining the conventions are assessed and understood, that plans for development and approval of legislation are established and that stakeholders are identified.

• During Phase 2 the country has to complete the legislative process for joining the relevant conventions, enacting national nuclear legislation and amending other laws relevant to a nuclear power programme. • During Phase 3 the legal framework should be maintained, reviewed and amended as necessary during the life of a nuclear power programme in line with the state’s international, and national constitutional and institutional obligations

Key Activities during Phase 1• Stakeholder involvement should start during Phase 1. These should be identified and consulted appropriately. • Engagement of relevant institutions on the need to have a legal framework for the nuclear power programme.• Assessment of the existing legal framework in consultation with the existing regulatory body making use of its experience in control of radiation sources.• Preparation of report(s): (1) outlining the international instruments, their advantages and implications, and recommendations for joining; (2) outlining the areas that will need to be covered in a comprehensive national nuclear law, the required key policy decisions on essential aspects of nuclear law and the key elements that need to be included in the law for legal certainty and for reflecting international obligations; and (3) identifying additional national legislation that may affect the nuclear power programme.• Elaboration of a plan with timescales, resources and responsibilities for enabling the legislative process.All of these activities should be started early in Phase 1 since nuclear legislation is complex and specialized. Sufficient time and resources should be devoted to it.

Engagement with relevant Institutions -IllustrationWhich stakeholders should be consulted in development of a legal framework by the newcomer state in Phase1Answer. The coordinating agency tasked with commencing development of a legal framework by a newcomer state (NEPIO or other organization) should engage the following institutions:- Ministry of Justice which is tasked with formulating laws where applicable, Ministries of foreign affairs which handle international instruments, Ministry of Energy responsible for energy planning, Internal security to ensure safety and security of nuclear activities and install ions, Ministry of Lands responsible for land use planning, Ministry of Environment responsible for environmental protection and compliance, Ministry of Finance for purposes of funding the programme, Ministry of Planning to factor in nuclear power programme in the state planning processes, the body responsible radiation protection, transport and others where applicable.

During Phase 1 the country should take action to achieve an understanding of the international legal instruments and the requirements for a comprehensive legal framework and develop plans to enable the legislative process.

Key Activities during Phase 2• Designation of drafting and consultation responsibilities• Public consultation (public hearing, etc.)• Clear plans with timelines for joining the international instruments, adopting the national nuclear law prior to licensing and revising other relevant legislation.

Case StudyCountry A is developing a nuclear power programme and is in the process of drafting its national nuclear law. It has been identified that the environmental legislation gives the Environmental Authority the sole and final responsibility for all matters related to the environment. This means that the regulatory control of the nuclear power programme will be subject to the decisions of the Environmental Authority, hence compromising its independence. Accordingly, the environmental legislation will need to be amended to avoid conflicting and overlapping responsibilities in nuclear regulation.

• Ensuring harmonization between the nuclear legislation and the regulatory approach • Take into account the interrelation between the legislative and the regulatory processLegislation should be in force prior to inviting bids for the first nuclear power plant to prevent the risk of costly delays.

During Phase 2 all activities enabling adherence to international instruments, promulgation of the comprehensive nuclear law and revision of other laws should be completed so that the implementation of the nuclear power project will not be delayed.

Key Activities during Phase 3

• Maintaining a list of laws (nuclear and non-nuclear) and assigning responsibilities for their implementation, including reporting and monitoring mechanisms. Such a program should have clear reporting structure and assignment of responsibilities(who is doing what), and timelines • Putting in place mechanisms for maintaining, reviewing and amending the legal framework, as necessary• Ensure ongoing training of legal expertsDuring Phase 3 all activities for maintaining and further development of the legal framework should be carried out and continued throughout the life cycle of the nuclear power programme.

Topic Summary

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Conclusion