The potential hazards of nuclear energy make it necessary to increase the level of regulations in this sphere. There is no doubt that professionals working at nuclear plants must know everything about the legislation that regulates their operations. They must also know the rules of material transport and the aim of export controls. Finally, professionals must be made aware of their responsibility to the law in cases where there is a failure to carry out the rules of this legal regime. Full responsibility of nuclear industry personnel will help to achieve the primary goal of export controls, non-proliferation of nuclear weapons.

TREATY ON THE NON-PROLIFERATION OF NUCLEAR WEAPONS (NPT)

    Ukraine signed the NPT in 1994. According to article III of the Treaty, “Each non-nuclear-weapon State Party to the Treaty undertakes to accept safeguards, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency in accordance with the Statute of the International Atomic Energy Agency and the Agency’s safeguards system, for the exclusive purpose of verification of the fulfilment of its obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices.” Part two of the article III states Each State Party to the Treaty undertakes not to provide: (a) source or special fissionable material, or (b) equipment or material especially designed or prepared for the processing, use or production of special fissionable material, to any non-nuclear-weapon State for peaceful purposes, unless the source or special fissionable material shall be subject to the safeguards required by this Article.”

    Ukraine signed and ratified an agrement with International Atomic Energy Agency about the use of safeguards in accordance with the terms of the Treaty. This is a typical arrangement that comes into force following official notification from a government to the IAEA about the execution of all necessary procedures. This determines the scientific and technical content of all practical activity of IAEA, under the article І of the Treaty. This document now sets the primary tasks and implementation order of all safeguards (including the beginning and the end of the control), the release from safeguards and the registration of the results of the Agency’s activity. Specific procedures and methods of safeguards, for example the procedure of control on nuclear materials and the procedure of IAEA inspections, are formulated. International transfers of nuclear materials are now regulated under safeguards of the IAEA.

    Article 9 of the Constitution of Ukraine states, “valid international treaties, agreements of binding character of which have been granted by the Superme Rada of Ukraine, shall be part of the national legislation of Ukraine”. The NPT has become a part of national law. This is also true of a number of other international agreements, which will be discussed later.

    The NPT has become the basis for creating an international system of control on nuclear export. Standards represented in the Treaty were developed in adherence to the guidelines of the Zangger Committee and the Nuclear Suppliers Group.

UKRAINIAN LEGISLATION

    On the 8th of February in 1995 the Supreme Rada of Ukraine adopted the base law “concerning use of nuclear energy and radiation safety” that regulates this sphere of activity. This law delineated the functions and the responsibility of government in the safe use of nuclear energy and laid the foundation for standards in licensing and oversight of nuclear activity. It also set regulations for export/import controls, radiation exposure levels in the workplace, civil responsibility for nuclear damage, the transportation of radioactive materials, physical protection etc. Each section of this legislation represents a “legal institution”.

    Article I of this law defines critical terms such as “source material”, “nuclear installation”, “nuclear damage” etc.

    Article VII directly concerns the theme of our article. The name of the unit is “Preventing of use of nuclear materials, equipment and technologies in military purposes”.

    According to the article 67, the body of safeguards is divided into the system of accounting and usage of nuclear materials and the system of export/import controls of nuclear materials, equipment and technologies. The state system of safeguards is based on this law in conjunction with the provisions of international and bilateral treaties which Ukraine is party to.

    Tne Article 68 of this law says, “organization and implementation of state control of nuclear materials in Ukraine if performed by the agency of state regulation of nuclear and radioactive safety. Implementation of accounting and control over nuclear materials at the nuclear plants is the responsibility of the exporting organization”

    Article 69 states, “The State system of export control on nuclear materials, equipment and technologies implemented within the framework of the state export control system is under the control of the government. Licenses for the export of nuclear materials, equipment and technologies are given in an order settled by the Cabinet of Ministry of Ukraine”

    Article 70 provides restrictions on international transfers of nuclear materials, equipment and technologies. It states, “it is prohibited to transfer internationally nuclear materials, equipment and technologies that are being used within the territory of Ukraine, under its jurisdiction, or to transfer materials under its control to other countries if those countries:

    · Did not undertake the use of nuclear materials, equipment and technologies only in peaceful purposes;

    · Did not undertake the effective protection of nuclear materials from unauthorized use;

    · Did not confirm the existence of the state system of calculation and control of nuclear materials;

    · Did not undertake the terms of reexport of nuclear materials, equipment and technologies to third countries.

    Article 71 says “...Ukraine is not responsible for nuclear material that is transported through the country, or over the territory of Ukraine by air, unless it is according to the contract of shipment of this nuclear material that is a property of another country.” The law also defines “nuclear safety” as the observance of practices and standards in the use of nuclear materials that provide radiation safety.

(CHRONOLOGICALLY ORDERED)

    The Convention on the Physical Protection of Nuclear Material was signed by Ukraine on May 5,1993 and places responsibility for the creation and functioning of physical protection of nuclear materials on the state agencies. The main provisions of this convention are represented in the section on “physical protection of nuclear plants, materials, and other sources of ionizing radiation”. The Supreme Rada will consider the bill of this convention in its first reading. This convention is extremely important in preventing the evident or veiled withdrawal of nuclear materials for criminal purpose.

    The Vienna Convention on Civil Liability for Nuclear Damage, ratified December 23,1996, establishes an extremely significant legal institution. Unfortunately, formation of this institution under Ukrainian law is incomplete. Unite Х of the convention established all main principles of this institution. Those principles are no-fault liability (that is liability without fault) of the operator for nuclear damage. This convention defines the no-fault liability of the operator in the following way: “The operator is the only one who is liable for nuclear damage except in the situations provided by this Law “. Two more features that help to distinguish this type of responsibility from ordinary civil responsibility are the restrictions imposed on the sum of that liability (in Ukraine this sum is $50 million) and on the statute of limitations for claims, in the case of property damage.

    One of the peculiarities of our legislation is that the right to claim for nuclear damages. The statute of limitations does not restrict damages to the health or life of a person. There is no doubt that this norm causes certain difficulties for insurance companies providing nuclear insurance.

    It is necessary to say some more words about this legal institution and about its correspondence with other institutions. Attention should be paid to the definition of nuclear damage – the loss of life, any damage caused to health of a person, loss of property or property damage, or any other loss or damage caused because of dangerous characteristics of nuclear material at the nuclear installation or nuclear material in transport, except for the damage of the installation or transport vehicle which carried this material.

    The operator is liable for nuclear damages under several circumstances

    · When damage was caused in the operator’s nuclear installation.

    · When transportation of this nuclear material to the nuclear installation of the operator after receiving responsibility for this material from another operator.

    · When transportation of the material from the operator‘s installation when responsibility was not accepted by another operator in writing.

    If nuclear damage was caused while this material was carried in transit - the operator that is a shipper or consignee is responsible of this damage. The moment of passing property into the hands of another person is determined by a written agreement between a shipper and a consignee.

    In addition to these documents, it is important to mention the Convention on nuclear safety ratified by the Supreme Rada of Ukraine December 17,1997.

    All the documents mentioned above are included in the system of nuclear legislation in Ukraine. In addition, there is special legislation that establishes particular requirements that are different from the requirements of general regime of implementing of the foreign trade activity. There is also the law “On Foreign Trade Activities”, adopted in 1991, that enacts many improvements and amendments. This law establishes the legal regulation of all types of foreign trade activity including international trade, economic, scientific and technical Co-operation. One of the main principles of free foreign trade activity is determined by this law as a responsibility to obey the order established by Ukrainian laws at the time of foreign trade activity.

    In Article 8 of this law, called “The state regulation of international economic activity”, includes reference to special legislation that provides stricter requirements for the operations with nuclear material. “The State and its organs have no right to interfere in the foreign trade activity of subjects of this activity except for the cases provided by this or any other Laws of Ukraine”.

    Article 20 of this law concerns the export and import of armament, ammunition, military equipment and other commodities that can be used in production, explosives, nuclear materials, technologies, equipment, special non-nuclear materials and services connected with them, sources of ionizing radiation, and any other kinds of production, technologies and services which can be used for creation of military-purpose goods. These materials may only be transported by “ those subjects of foreign trade activity who have special authorization from the government of Ukraine”.

    There are some extremely significant normative acts, which determine the main provisions of export control and which order and structure their operations. These acts are Decrees of the President and resolutions of the Cabinet of Ministry of Ukraine. They include Decrees of the President “On improvement of State Export Control” and “On Further Improvement of the State‘s Export Controls”. To continue the theme of the importance of contracts as the main legal form of the international economic relations it is necessary to say some words about general legislation. For example, the civil code of Ukraine establishes standards for agreements to meet the requirements of legislation:

    · Article 48 determines that agreements that do not satisfy the requirements of Law are invalid.

    · Article 49 says agreements that are concluded with the aim that contradicts interests of the state are invalid.

    · Article 50 states a legal entity that contradicts with the goals of state will not be recognized.

    Criminal legislation in Ukraine also has codes that provides sanction in case of law infringements connected with illegal purchasing, possessing, use, transfer or destruction of radioactive materials (sources of ionizing radiation, radioactive substances, nuclear materials). These charges carry a five-year sentence in prison, ten years if the activity resulted in a human death.

    · Article 228-4 – the threat of committing a theft of radioactive materials and their posterior use;

    · Article 228-5 – violation of rules of storing, use, accounting and transportation of nuclear materials.