LEGAL ASPECTS OF AN INTERNATIONAL NUCLEAR FUEL CENTER

57 Pages·2011·0.65 MB·English

LEGAL ASPECTS OF AN INTERNATIONAL
NUCLEAR FUEL CENTER

LLM Law & Technology

Master Thesis

Julien Fournié

Student number: 1237899
ANR: 996266
Supervisors:
Pr. Han Somsen
Pr. Jonathan Verschuuren

TABLE OF CONTENTS

Introduction …………………………………………………………………………………. 1
PART I: NUCLEAR LANDSCAPE ………………………………………………………. 5
Chapter 1: Nuclear technology …………………………………………………………….. 5
● 1-1: Front-end of the cycle ………………………………………………………………… 5
● 1-2: Use of the fuel and back-end of the cycle ……………………………………………. 6
● 1-3: Current technological concerns ………………………………………………………. 7
Chapter 2: Nuclear policies ………………………………………………………………… 8
● 2-1: Risk assessment ………………………………………………………………………. 9
● 2-2: Organization overview ………………………………………………………………... 10
Chapter 3: Nuclear Law ……………………………………………………………………. 12
● 3-1: The basis of international nuclear Law ……………………………………………….. 12
● 3-2: Proliferation control …………………………………………………………………... 15
PART II: CORE OF THE TOPIC …………………………………………………………. 17
Chapter 4: The International Nuclear Fuel Center ………………………………………. 17
● 4-1: Need of an internationalization of the nuclear fuel cycle …………………………….. 17
● 4-2: Existing international centers …………………………………………………………. 18
● 4-3: Different kinds of Multilateral Nuclear Approaches projects ………………………… 20
● 4-4: Description of the chosen concept of International Nuclear Fuel Center …………….. 21
Chapter 5: Establishment of the International Nuclear Fuel Center: Legal……………. 24
Architecture
● 5-1: Founding Treaty ………………………………………………………………………. 25
● 5-2: The Territorial Sovereignty Agreement ………………………………………………. 27
● 5-3: Specific Safeguards Agreements ……………………………………………………… 28
● 5-4: The State-Operator Agreements ………………………………………………………. 29
● 5-5: The Consortium Agreement …………………………………………………………... 29
● 5-6: The Management Agreement …………………………………………………………. 31
PART III: SPECIFIC LEGAL ISSUES …………………………………………………… 32
Chapter 6: Environment and safety ……………………………………………………….. 32
● 6-1: Basis of the INFC functioning regarding environment and safety …………………… 32
● 6-2: Activities of the INFC implying transboundary movement of nuclear materials …….. 35
● 6-3: Environmental impact ………………………………………………………………… 36
Chapter 7: Enrichment and reprocessing business ………………………………………. 39
● Uranium processing contracts ……………………………………………………………... 39
● Legal scheme of the INFC business ……………………………………………………….. 41
● International requirements regarding nuclear materials …………………………………… 42
Chapter 8: Technology transfers …………………………………………………………... 43
● Data protection …………………………………………………………………………….. 44
● Intellectual Property management …………………………………………………………. 45
Conclusion …………………………………………………………………………………... 47
Bibliography …………………………………………………………………………………. 49
Acknowledgments …………………………………………………………………………… 53

___________________________________

The LLM Law & Technology is offered by the Tilburg Institute for Law, Technology and Society
(TILT). The Master’s programme is focused on the legal framework of new technologies, such as
biotechnologies, nanotechnologies, communication technologies, and intellectual property.

TILT is a research institute of the Tilburg University. TILT´s research activities cover a wide area
related to the regulation of technology. In particular, research is centred on the interaction between
law, technology, and society. The focus of TILT research includes areas such as privacy, security,
autonomy, e-commerce, e-government, e-health, identity management, anonymity, cybercrime,
DNA forensics, genetics regulation, neurotechnologies, development and justice, biotechnology and
the environment, nano-technologies, intellectual property law and innovation, and general questions
of regulation related to technology.

___________________________________

Cover page picture: website ICON Etc.

January 2011

[email protected]
LEGAL ASPECTS OF AN INTERNATIONAL NUCLEAR FUEL CENTER

Master Thesis – Julien Fournié, LLM Law & Technology

_________________________________

“Today, the United States' stockpile of atomic weapons, which, of course, increases daily, exceeds
by many times the explosive equivalent of the total of all bombs and all shells that came from every
plane and every gun in every theatre of war in all of the years of World War II.
A single air group, whether afloat or land-based, can now deliver to any reachable target a
destructive cargo exceeding in power all the bombs that fell on Britain in all of World War II.”

Those sentences are from the United States President Dwight D. Eisenhower, in his famous speech
“Atoms for Peace” of the 8th of December 1953. The United States were at this time stockpiling
impressing amounts of nuclear weapons. Since this speech, other nations have also acquired nuclear
weapons, increasing the concerns about the dangers of this technology. The use of just a part of the
current world's nuclear weapons stockpile would be sufficient to provoke a worldwide “nuclear
winter”1.

With the Atoms for Peace initiative, the United Sates proposed an international cooperation between
States to use the nuclear technology for civilian purposes, in order to supply energy to populations.
In reality, the nuclear technology is a perfect example of what is called “dual-use technology”, that
is to say a technology which can be used as much for pacific than warlike aims. And
notwithstanding all the fears related to nuclear power, this energy seems currently incontrovertible.

Indeed, today the humankind has to face up to another risk, more silent than an atomic war but
considered equally dangerous. Global warming seems, with reason, the major and most urgent
environmental concern of governments.

Greenhouse gases emissions lead to an increase of atmospheric temperatures and could provoke
global changes in the Earth climate and global equilibrium. Specialists agreed today on the fact that
human activities and their carbon emitting energies are «very likely» the cause of the XXth century
temperature increase2.
In this regard, an overview of the actual world energy mix and the part of carbon emitting sources
within this mix is eloquent. According to the International Energy Agency, in 2008 more than 81%
of the world total energy supply came from carbon emitting sources: oil, gas, coal or peat3.
The use of those energies leads to warming the atmosphere, with catastrophic effects listed in the
aforementioned report from the IPCC (sea level rise, precipitation changes, increase of extreme
climatic events, extinction of up to one third of species, negative impact on human health and
agricultural resources...). Those risks are now well known by policy makers.
In 2006, Nicholas Stern, committed by the United Kingdom Government, estimated that
consequences of global warming could lead to a loss of up to 20% of world GDP and is a major
threat for our societies4. More recently, this economist said that according to new scientific
evidence, his 2006 report underestimates the impact of greenhouse gases5. He today recommends to
reduce the world total emissions of greenhouse gases by 50% before 2050 in order to avoid the

1A. Robock, L. Oman, G.L. Stenchikov, Nuclear winter revisited with a modern climate model and current nuclear
arsenal: still catastrophic consequences, Journal of geophysical research, vol.112, 2007
2Intergovernmental Panel on Climate Change, Climate change 2007: Synthesis report (IPCC, Geneva, 2007)
3IEA, Key World Energy statistics 2010 (IEA, Paris, 2010)
4Nicholas Stern, Stern Review Report on the Economics of Climate Change (HM Treasury 2006)
5The Guardian, 30 March 2009
1
worst consequences.
Considering development of countries having a numerous population and a legitimate desire for
economic growth together with well-being increase, which requires energy, this goal seems hard to
reach.

Another obvious rationale to give up carbon emitting sources of energy is that they are
unsustainable. According to studies on oil resources, the peak oil (point in time since which the
production of oil will decrease) could arise in less than 10 years6. All our infrastructures being
based on oil (one third of world total energy supply in 2008), this lack of energy will cause major
disorders if no serious action is implemented quickly. Resources of gas and coal are wider but those
sources are also not satisfying, as being carbon emitting (with an especially high level of emissions
by coal).
Carbon emitting energy sources are also always less accepted day after day by citizens, for those
rationale and following major disasters like recently in the Mexico Gulf. Indeed oil and coal are not
only polluting atmosphere but can have other negative impacts on environment.

For all those reasons, and because variations of prices of hydrocarbons are still a concern, an
increasing number of States and governments undertook to seek out other ways to produce
efficiently large amounts of energy. The urge of the problem does not really allows to look at
technologies with uncertain development, and the search for a powerful, mature, industrially
available and non carbon emitting energy source points out the nuclear energy.

Despite of high capital costs, nuclear energy is a competitive energy source7 and a power plant,
fueled by enriched uranium, is less dependent of fuel price than a fossil fuel plant. Indeed uranium
prices are known as being not subjected to unforeseeable important variations and nuclear fuel has
the highest power output (20 000 times superior to coal). Today, uranium and nuclear power plants
provide 5,8% of the world total energy supply. Major producers are, in order of importance: USA
(30,7% of world nuclear electricity production in 2008), France (16,1%), Japan (9,4%), Russia
(6%), Korea (5,5%) and Germany (5,4%).

Uranium ore is shared by several countries in the world, less concentrated than oil. According to the
first reference about uranium resource, the Red Book of the Nuclear Energy Agency (NEA, agency
of the OECD) and the International Atomic Energy Agency (IAEA), Australia possesses 31% of
uranium resources, Kazakhstan 12%, Canada 12%, Russia 9%. South Africa, Namibia, Brazil and
Niger each possess 5% of uranium resources8.
Considering the actual consumption of uranium in reactors (2008 consumption rate), the estimated
world resources of uranium are sufficient for the next 100 years. In reality, the demand will grow
considerably (there are currently about 30 countries considering starting or restarting a nuclear
civilian program) and all those resources are not yet available: important mining efforts will be
necessary to meet this demand. The exploration costs are supposed to double, and with regards to
this fact and the new demand, some analysts foresee a doubling of the uranium price in 20119. But
even such an increase shall not prevent the nuclear rise.

Nuclear industry has also the default to produce hazardous wastes. Among those wastes, some
elements (High-Level Wastes or HLW) emit high level radiations during up to several million years.
Handling and disposal of High-Level Wastes require high technology and after their neutralization,
which can be only temporary, those wastes will still remain dangerous. 10 000 m³ of HLW are

6Industry Taskforce on Peak Oil & Energy Security, The Oil Crunch, Securing the UK's energy future (ITPOES 2008)
7World Nuclear Association, The economics of Nuclear Power (April 2010)
8NEA & IAEA, Uranium 2009: Resources, Production and Demand (OECD, Paris 2010)
9Nuclear prices to double in next year, says analyst, Nuclear Engineering International, 9 September 2010
2
produced each year in the world10.

But the real immediate, short-term concerns about nuclear energy and uranium resources are not the
availability of uranium ore, its price, or even the management of wastes. The States and
international community are focused on another issue related to nuclear energy, connected with the
speech of Eisenhower: proliferation. The term refers to the spread and the use of nuclear technology
to fabricate nuclear weapons.
Indeed civilian nuclear technologies can easily be diverted from their initial peaceful purposes and
serve to create an atomic bomb.
The international community made, and is still making, a lot of efforts to avoid such a spreading of
dangerous technologies. Following the Atoms for Peace initiative, the International Atomic Energy
Agency has been established in 1957, with the mission to foster the peaceful use of nuclear
technology and prevent nuclear weapon proliferation.
Under its supervision, “nuclear weapon States”, that is to say States possessing nuclear weapons
and the technology enabling to produce them, and other States (“non-nuclear weapon Sates”) signed
the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), opened to signature in 1968 and
entered into force on 5 March 1970. Nuclear weapon States signatories (USA, URSS, China, United
Kingdom and France) undertook not to transfer in any way nuclear weapon technology or devices
to other States, and non-nuclear weapon States signatories undertook not to acquire nuclear weapon
technology or devices. Inspectors from IAEA are empowered to visit the relevant facilities of States
parties to the treaty in order to control their compliance with the provisions of the NPT. The aim of
this treaty was to “freeze” nuclear weapons spreading and limit its legitimate possession to the
States already in possession of this technology.

Notwithstanding those efforts, other countries who did not signed the treaty acquired nuclear
weapon: Pakistan, India and Israel (but Israel never officially confirmed).
Some other countries have also signed the NPT and have been in violation with its terms, like Iraq
or Syria, but they finally did not acquire the atomic bomb.
Some States parties to the NPT are also suspected to be in breach of their commitments, the most
current example being Iran.
Iran refuses to cooperate correctly with the IAEA inspectors and IAEA rules in order to prove that
its nuclear program has no military purpose. Some suspicious traces of highly-enriched uranium
(uranium needed to make a bomb) have been found in a facility, and one supposed-to-be research
reactor is similar to others used to produce plutonium for a bomb11.
Fearing the emergence of a new nuclear weapon State, the international community has made
several proposals to Iran, including the possibility to supply uranium to the country without
allowing the mean to use it for a bomb. All those proposals have been refused and Iran does not
trust foreign supply for enriched uranium.

This crisis, the foreseen growth in nuclear enriched fuel, and the dangers of proliferation when
today not only States but also terrorists could be interested by nuclear weapons, led to take a new
look at the international nuclear policies. Cooperation is more necessary than ever in order to avoid
nuclear risks, and therefore several proposals from nuclear policy-makers arose out.

One of those proposals is to create international facilities where uranium could be processed for
civilian purposes, opened to any State ready to forgo its own national programs. Those international
centers would be monitored by the International Atomic Energy Agency in order to provide the best
confidence to the international community.

10Including used fuel from States having chosen an open cycle. See WNA, Radioactive Wastes Management (June
2009)
11WNA, Safeguards to prevent nuclear proliferation: Nuclear proliferation case studies (February 2010)
3
_________________________________________

The topic of this thesis will be to study, for a global survey, the legal aspects of this project of an
International Nuclear Fuel Center (INFC) dedicated to international nuclear safety and non-
proliferation.
The exact research question of my thesis is: what are the legal consequences and the legal needs of
an International Nuclear Fuel Center?
Such a center, involving several countries and an international agency, would obviously be hard and
complex to implement: a large number of legal issues would arise out of its establishment, and
functioning. In this thesis, I will try to:
- Detect those legal issues and problems
- Give responses to those problems

This thesis is based on different kinds of written documents.
- Legal documents such as treaties, agreements or national legislation
- Non-binding regulations and codes of conduct issued by agencies and international committees
- Articles and papers of technical nature
- Articles and papers from legal publications
- Reports of nuclear organizations: companies, companies groups, national agencies or international
agencies and organizations
- Reports from non-governmental organizations

The majority of those documents has been found on Internet and is public. Other documents and
“know-how” especially useful for Part II and Chapter 5 are issued from my studies and internships
(in a private company often constituting consortia and in the French Space Agency). I found here
some inspiration in documents not related to nuclear activities which were however relevant, like
the provisions about the European Space Port in French Guiana.

In the first part of this thesis, more factual, I will describe the nuclear energy framework: technical
information, organization and policies, international nuclear law. Indeed, the comprehension of
those technical aspects and the legal organization of international nuclear industry is compulsory in
order to identify the risks of nuclear energy and the necessity of an internationalization of the
uranium treatment.
In a second part, the International Nuclear Fuel Center itself will be defined and detailed, and I will
study its institutional establishment and aspects. Thus the first (and maybe the main) part of the
answer to the research question will be given by legal proposals to implement the INFC.
Finally, in the third part of the thesis, I will take a look at some specific legal issues inherent to such
a facility and its functioning: safety and environment, the business legal aspects, and the technology
protection. Those issues are consequential to the establishment studied in the previous part. Of
course there are probably more legal problems which could occur in this framework, but I chose
those three as being the most important from my point of view. Each of them could be linked to the
three aims of the INFC as it will be explained in Chapter 4: environmentally sound management of
the cycle (Chapter 6), assurance of supply (Chapter 7) and non-proliferation of hazardous
technologies (Chapter 8). There is therefore a necessity to go further in these issues and explore the
framework of: nuclear environmental Law, nuclear commerce, and sensitive technology transfers,
unless the implementation of the INFC three aims would remain too much vague.

4
_______________________________________

I
NUCLEAR LANDSCAPE

Chapter 1 – Nuclear Technology
Chapter 2 – Nuclear Policies
Chapter 3 – Nuclear Law

CHAPTER 1
NUCLEAR TECHNOLOGY

Comprehension of nuclear industry and policies requires an overview on the functioning of nuclear
fuel: why is this fuel dangerous, why some of those activities are said “proliferating”, what
connection between a power plant and an atomic bomb?
The question I intend to answer in this chapter is: what steps of the nuclear fuel cycle are
proliferating and a matter of concern?
With common sense and in order to present clearly the nuclear fuel cycle, I will follow the uranium
life in a chronological way. Nuclear fuel is first extracted from the earth, used, and then will
probably return to the earth, sealed in special containers. The steps of the nuclear fuel cycle are the
mine, the milling, conversion, enrichment, the fuel fabrication, the use in the reactor, the eventual
reprocessing, and the end as a waste. Then I will take a look at nuclear weapons technology.

1-1 Front-end of the cycle

The mine. Uranium is the heaviest natural element in the universe. It is a white metal commonly
found in association with oxygen (Triuranium Octoxide, or U O ) and other elements, widespread
3 8
in the environment, present even in water. It is more abundant in the earth's crust, and some
concentrations are considered as ore when the uranium is economically recoverable from rocks.
As said in the introduction of this thesis, the major mines of uranium ore are in Australia,
Kazakhstan, Canada, Russia and Africa. Mining of uranium is a complex operation, and the
recovered ore needs to be purified after extraction from the earth.

Milling. The ore is therefore placed in a uranium mill, where it is mixed with chemical agents, such
as sulfuric acid, in order to remove impurities and obtain a suitable form for the next steps of
manipulation. During this process, the uranium is called “yellowcake” because it takes such an
appearance (even if in more modern process, it is darker). In the end of the process, the uranium
takes the form of U O .
3 8

Conversion. The U O is then transformed in a gas called Uranium Hexafluoride (UF ) also known
3 8 6
as “Hex”. This gas will follow the most sensitive process of transformation, the enrichment. The
hex will be liquefied for transport. Until this moment, the uranium has only been subjected to
chemical treatments which are not considered as key proliferating technologies.

Enrichment. Thus, the UF is a molecule of gas made up of six atoms of fluorine and a single atom
6
of uranium. This atom of uranium can take two forms, which are both natural isotopes: U238, most
5
common (99,3% of natural uranium), and U235 (0,7% of natural uranium) which is a little bit
lighter (by 3 neutrons in comparison to U238). U235 is the only natural “fissile” atom, that is to say
which is able to split (explode) and therefore produce energy in a reactor. U238 is a “fertile” atom,
that is to say that after capture of neutrons produced by U235 splits, it can be transformed after
several steps into a fissile atom (an atom of Plutonium), but will not split itself. Like this, to start a
sustainable nuclear chain reaction, the fuel of a reactor needs a certain level of U235.
The “reactor-grade” uranium, or “low-enriched uranium” (LEU) that is to say uranium containing
enough U235 atoms to maintain such a reaction, has (for the most used reactors, Light Water
Reactors or LWR) a proportion of at least 3% and up to 5% U235, the remaining elements being
U238.
The uranium needs therefore a treatment to increase the number of U235 atoms in the mix: this is
the enrichment.
Hex can follow several kind of enrichment processes, the most commonly used being gaseous
diffusion or centrifugation. Both use the slight difference of mass between U235 and U238 to
increase the concentration of U235 in the gas after a “cascade” treatment. Gaseous diffusion uses
membranes to filter U235 and is a process requiring a lot of energy. It will be replaced by
centrifugation, which uses cylinders with rotors and the centrifuge force to collect a maximum of
U235.

Fuel fabrication. The enriched UF is then converted in nuclear fuel, suitable for use in the reactor.
6
Fuel can take many forms depending of the kind of reactor. Often, the gas is transformed into solid
pellets of Uranium Dioxide (UO ) which are put in tubes.
2

1-2 Use of the fuel and back-end of the cycle

Fuel use. The fuel is placed in the core of the reactor and fission of U235 is harnessed in order to
obtain a continuous fission reaction to produce heat. The reactor warms up water which will drag a
turbine and therefore produce electricity.
During the functioning of the reactor, the fuel will change, the elements being transmuted by
neutron capture and radioactivity. The U235 will be consumed, and several by-product elements
will appear, named fission products. Some of them are valuable, like the plutonium 239 (Pu239)
which is a fissile and heat-generating element. Some others just pollute the fuel and impede the
reaction to continue (especially some elements named “minor actinides”, other plutonium isotopes,
etc.). For those reasons, after about three or four years, the fuel is removed from the core. Its future
will depend of the solution adopted by the State using the power plant, and will have an impact on
the proliferation policy: open or closed cycle.
Open cycle. All the used fuel is disposed and considered as waste.

Closed cycle and reprocessing. Even after use, there is still U235 in the fuel, and the Pu239
provides also valuable fissile material. Used fuel still contains half of the energy potential than
when it is loaded, but the minor actinides and other products hampering the nuclear chain reaction
have to be removed. All the commercial reprocessing facilities use the PUREX process, enabling to
separate the different components from the used fuel, the uranium (96% of the used fuel), the
plutonium (1%) and the other fission products (3%).
The reprocessed uranium has to be re-enriched, and the plutonium will be mixed with uranium to
fabricate Mixed Oxide Fuel (MOX). The MOX can be used in a licensed reactor in combination
with normal fuel (up to 50% of MOX if some adaptations are done).
To separate the plutonium from other elements is seen as a proliferation risk because including
enough Pu239, it can be used to make a bomb, as we will see later in this chapter.

6