3.1. Nuclear TPL Regimes in Existing MNA Frameworks
As a reference for exploring the TPL regime in the MNA framework in the Asian region, it is worth analyzing such regimes in existing MNA frameworks of the European Gaseous Diffusion Uranium Enrichment Consortium (Eurodif, a subsidiary of Areva SA) and URENCO Limited.
First of all, as shown in Table 3
, most Western European states, including France, the UK, the Netherlands and Germany, host states of both Eurodif’s and URENCO’s enrichment facilities, together with their neighboring states, are all members of the Paris Convention. Therefore, in the case of a nuclear incident in such MNA facilities, nuclear damage in the region is principally to be compensated in accordance with provisions of the Paris Convention.
The Eurodif was formed in 1973 by France, Belgium, Italy, Spain and Sweden as a joint stock company, but only a French operator exclusively holds the enrichment technology and operates the facility. Therefore, the Eurodif follows French nuclear laws and legislations including nuclear TPL, and in case of a nuclear incident, principally the French operator is assumed to be an exclusively liable operator, while the Government of France is also assumed to take responsibilities as an installation state. The URENCO are invested by companies in Germany, the Netherlands, and the UK, and they equally share the facilities’ ownership, operation, and decision-making in the URENCO, as stipulated in the Treaty of Almelo of 1971. Since each state has one enrichment facility, each facility respectively follows its host state’s relevant nuclear laws and legislations including nuclear TPL, such as Eurodif. Therefore, in the event of a nuclear incident in a facility, nuclear damages are principally compensated based on its host state legislation on nuclear TPL, which also satisfies the provisions of the Paris Convention. These Eurodif and URENCO arrangements are quite natural, since they operate their enrichment facilities based on their own enrichment technology, and consequently they should be responsible for nuclear incidents in their facilities. In addition, advantages of these arrangements are.
Even if the facilities are in the form of MNA, they are equally treated as nation-based facilities.
Both a liable operator and an installation state can easily be identified, despite the existence of multiple stakeholders in MNA frameworks.
It is unnecessary tochangeboth host states and other MNA member states’ legislations on nuclear TPL based on the existence of a MNA framework.
In addition, regarding frameworks of international control of nuclear material, such as a low enriched uranium (LEU) reserve established at the International Uranium Enrichment Center in Angarsk, Russia in December 2010 [15
] and an IAEA international fuel bank currently on the way to be established [16
], principally, such a reserve and a bank follow their host states’ (Russia’s and Kazakhstan’s) nuclear TPL laws in accordance with the Vienna Convention, since both states are members of the Vienna Convention. In this respect, whether or not a facility is a nation-based or under the MNA framework or under international control, they are all treated equally under a host state’s nuclear TPL laws and regulations and the Vienna Convention.
On the other hand, the IAEA fuel bank has a different characteristic from the Russian LEU reserve, Eurodif and URENCO. Since there is no enrichment plant in Kazakhstan, either Kazakhstan or its nuclear operator accepts and stores the LEU, which has been enriched by enrichers in other states. However, in case of a nuclear incident in the bank, the nuclear operator and the state of Kazakhstan, respectively, are required to bear responsibilities as a liable operator and an installation state, although the bank is an international organization-controlled bank. In cases of Eurodif, URENCO and a Russian LEU reserve, as mentioned above, nuclear operators and their governments have enough reasons to be positioned as exclusively liable operators and installation states in case of a nuclear incident since they are actually and directly engaged in enrichment activities by using their own enrichment technologies and facilities. Compared with nuclear reactors, risks of nuclear incidents in LEU storages are low, but in this case, such responsibilities can be equally shared among stakeholders by internal arrangements within the bank.
3.2. Case Studies and Analysis of Appropriate Nuclear TPL Regimes in a MNA Facility
Assuming to establish a MNA facility, Table 4
shows case studies of possible combinations of the MNA facility’s technology holder, an operator, and an installation state, together with possible responsibilities of MNA member states in the case of a nuclear incident in a MNA facility based on the analysis described in Section 2
and Section 3.1
These case studies are based on the following premises;
All MNA member states are assumed to participate in the same international nuclear TPL convention, such as the CSC, and enact nuclear TPL laws and regulations in accordance with the convention.
Even if a host state of a MNA facility provides the MNA facility with an “extra-territorial” status, the MNA facility still needs to follow a host state’s relevant nuclear laws and regulations, including nuclear TPL, and it mustbe provided with the necessary licenses for its nuclear activities.
As to possible responsibilities of MNA member states, the key points are to identify what state takes the responsibility of being “an installation state” in the event of a nuclear incident and, if necessary, how these responsibilities are shared among multiple MNA member states.
Case studies on a nuclear TPL regime in a multilateral nuclear approaches (MNA) facility.
Case studies on a nuclear TPL regime in a multilateral nuclear approaches (MNA) facility.
| ||Case 1||Case 2||Case 3||Case 4||Case 5|
|(1) A technology holder of a MNA facility||a i||b i||the MNA company iv||c ii||x iii|
|(2) An operator of a MNA facility (= a liable operator in case of a nuclear incident in the MNA facility)||a||the MNA Company||the MNA Company||the MNA Company||the MNA Company|
|(3) A host state of the MNA facility||State A v||State B v||State B||State B||State B|
|(4) Responsibilities of MNA member states in case of a nuclear incident in the MNA facility||None (except state A)|
Principally, as a representative of MNA member states, State B, a host state of the MNA facility, directly takes responsibility as an installation state of a MNA facility.
However, especially in Cases 3, 4 and 5, if all MNA member states agree, this responsibility can be indirectly shared among all MNA member states, through internal arrangements within the MNA framework, such as reimbursement paid to a host state based on pre-agreed shares and/or making deposits on such reimbursement in case of an incident.
Case 1 indicates a case of a nation-based nuclear facility. However, it also applies to a case of a MNA facility into which all MNA member states have invetsed, but that operated only by one technology holder, such as Eurodif. In this case, it is natural that an operator “a” and a “State A”, respectively, take responsibility as a liable operator and an installation state in case of an incident.
In Cases 2, 3, 4 and 5, the MNA Company, a joint stock company consisting of multiple MNA member states and/or nuclear operators which belong to MNA member states, operates the MNA facility. The facility is situated in State B, therefore, the MNA Company, as an operator of the facility, follows relevant nuclear laws and regulations, including nuclear TPL, in State B. In the event of a nuclear incident, the MNA Company becomes a liable operator, however, as stakeholders of the Company, MNA member states and/or nuclear operators, who constitute the Company, indirectly share the responsibilities of a liable operator.
Regarding an installation state, although other MNA member states engage in the MNA facility through the MNA Company, State B, as a host state as well as a representative of all MNA member states, directly takes responsibility as an installation state for following reasons:
The MNA Company and its facility are both situated in a State B.
Therefore, the MNA Company and its facility follow relevant nuclear laws and regulations of State B. Such laws and regulations include Safeguards, nuclear security, physical protection of nuclear materials and facilities, export controls, nuclear safety, emergency preparedness and nuclear TPL, etc. In addition, every authorization for the MNA facility including its design, construction and operation, is provided by the Government of State B. Therefore, State B has enough reasons to become an installation state and take responsibilities in the event of a nuclear incident.
If all MNA member states are collectively or respectively considered as “an installation state”, legal relations would be complex, and such complexity may prevent timely compensation for nuclear damage.
Assuming that the above arrangement is possible and that the compensation for nuclear damage caused by the MNA Company is insufficient, all MNA member states are directly required to share their responsibilities as “an installation state”. However, assuming one state cannot afford to take on a part of an installation state’s responsibilities, there would be the question of which states need to substitute such responsibilities. If so, prompt compensation for nuclear damage would be prevented.
However, as for the IAEA international fuel bank mentioned in Section 3.1
, especially in Cases 4 and 5, it would be hard for State B to take responsibility as an installation state by itself, since the technology utilized in the MNA facility is not clearly the nuclear operator’s, and State B may not be able to be informed regarding the details of the technology due to non-proliferation and/or trade secrets of the technology holder. In those cases, although State B takes responsibility as an installation state in accordance with nuclear TPL laws and regulations in State B, through internal arrangements within the MNA, all MNA member states indirectly can share this responsibility of State B based on pre-agreed shares, such as reimbursement paid to a host state based on pre-agreed shares of investments and/or making deposits on such a reimbursement in advance. Such deposits can play the same role as a public fund in the CSC. If neither State B nor other MNA member states are willing to take such direct and indirect responsibilities as “an installation state”, the MNA facility should not be situated in State B. In addition, from the viewpoint of feasibility and practicability of establishing a MNA facility in Case 5, it would take time to establish this within State B, since the MNA member states either collectively or individually are expected to be required to conclude nuclear cooperation or supply agreements with an operator x and the state to which operator x belongs, since x is not a MNA member.
As to Case 3, since the MNA Company not only holds the technology but also operates its facility, it is more understandable than in Cases 4 and 5 that all MNA member states indirectly share responsibilities of State B as an installation state. However, from the nuclear non-proliferation viewpoint, Case 3 has a higher risk of proliferation of nuclear technologies than the other Cases have, since the MNA Company, consisting of various nuclear operators and their states hold the technology. Especially for the purpose of nuclear non-proliferation, MNA facilities are expected to be ENR facilities. Therefore, from the nuclear non-proliferation viewpoint, Case 3 is not desirable based on risk of proliferation of ENR technologies and facilities.
As to Case 2, also from a nuclear non-proliferation viewpoint, the technology utilized in the MNA facility remains in the territory of its state. In this respect, this case is a desirable situation for a MNA facility, as far as each MNA member state does not want to have the technology and agrees to situate the facility within the territory of the technology holder. Also from this perspective, compared with Cases 3, 4 and 5, State B has more reasons to take responsibility as an installation state in case of a nuclear incident, since the technology holder in its state dominantly holds the technology and State B is in a better position to control this technology compared to other MNA member states.
To sum up the above case studies, firstly, in a MNA facility, the MNA Company—a joint stock company consisting of MNA member states and/or nuclear operators, which belong to MNA member states—and an operator of the MNA facility, become the liable operators in case of a nuclear incident. Each members of the MNA Company indirectly bears the responsibility through investments into the facility. Secondly, there are various combinations of a technology holder, an operator of the facility, and an installation state, and principally, a host of the MNA facility takes on the responsibility as installation state. However, in some cases, all MNA states can indirectly share the responsibilities through internal arrangements within the MNA framework, such as reimbursement paid to a host state based on pre-agreed shares and/or making deposits (a fund) on such reimbursements in the event of an incident. If MNA member states are unwilling to share these responsibilities, they need to find a new host state.