Nuclear Materials Ownership In The Russian Federation

 
PIIS231243500022535-6-1
DOI10.18572/2410-4396-2020-4-99-104
Publication type Article
Status Published
Authors
Affiliation: Kutafin Moscow State Law University (MSAL)
Address: Russian Federation, Moscow
Journal nameEnergy law forum
EditionIssue 4
Pages99-104
Abstract

In response to the challenges of the epoch, “nuclear” laws currently regulate safety issues related to handling of nuclear materials, nuclear facilities operation, related transactions, nuclear waste processing and disposal, state control over the nuclear energy use, and international cooperation in the nuclear sphere. One of the most important institutions of the “nuclear” regulation system in Russian law is the institution of ownership of nuclear materials, understood by the modern legislator as materials containing, or capable of reproducing, fissile (fissionable) nuclear substances. Consolidating the rules of nuclear materials ownership, the legislator further formulates requirements for nuclear materials control and accounting, transactions procedure, and safe operation of nuclear facilities, as well as introduces liability for violation of such requirements. Today, many aspects related to the legal status of nuclear materials owners and the notion of handling nuclear materials deserve a deep legal analysis, since the current legal regulation has gaps and contradictions. The legal writing method used to word such norms, structures, and basic notions must meet the criteria of clarity, unambiguous interpretation, and absence of regulatory gaps, that is why the system of legal regulation of the institution of nuclear materials ownership needs further improvement.

Keywordsenergy law, legal regulation in the field of nuclear energy use, ownership of nuclear materials
Received06.11.2020
Publication date05.12.2020
Number of characters19395
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1 Despite its rather short history, the legislation in the field of nuclear energy use has developed from a set of isolated technical norms in unclearly structured acts of Soviet state authorities of the 1960s to 1980s, to, albeit not codified, but a rather harmonious system of legal regulation of public relations. Such evolution was driven by the rapid development of nuclear power industry itself: having emerged as a “by-product” of the military program, the “peaceful atom” has become by now an integral element of the energy balance of both Russia and the most developed countries of the world [1]. In response to the challenges of the epoch, “nuclear” laws currently regulate safety issues related to nuclear materials handling, nuclear facilities operation, related transactions procedure, nuclear waste processing and disposal, state control over the nuclear energy use, and international cooperation in the nuclearsphere, and, according to V.V. Romanova, enjoys “the most extensive and detailed regulation as compared to other branches of the energy sector”. [2]
2 Many issues of nuclear law are the subject of legal research. [3] V.V. Romanova, exploring the current state and development trends of legal regulation in the field of nuclear energy use at the national and international levels, notes that despite the fact that nuclear law is one of the most established institutions of energy law, many aspects of legal regulation in the field of nuclear energy used at the national and international levels need legal research, including the legal regimes for facilities using nuclear energy, the legal status of nuclear industry companies, and contractual regulation. [4]
3 One of the most important institutions of the nuclear regulation system in Russian law is the institution of ownership of nuclear materials, understood by the modern legislator as materials containing, or capable of reproducing, fissile (fissionable) nuclear substances. Legislated in Federal Law No. 170-ФЗ On the use of nuclear energy dated November 21, 1995, this institution has also evolved, from the state monopoly to lawfully own nuclear materials to the fundamental recognition of private property rights.
4 According to S.V. Matiyaschuk, at the institution’s initial development stage, state ownership of nuclear materials “served as a credible guarantee of the state’s fulfillment of its obligation to ensure nuclear and radiation safety and to respect and protect the rights of citizens to a favorable environment” [5]. Nuclear materials could be transferred to legal entities only for use and only subject to a license to operate in the field of nuclear energy use.
5 However, the development of economic relations in the field of energy, not only within the country, but also at the international level, required a fundamentally new approach to regulating the relations concerned: without abandoning the paradigm of the exclusive state ownership of nuclear materials, further development of nuclear energy would be simply impossible, especially in the context of the growing international competition in Western markets and nuclear technology race And such step towards a new approach was taken: Federal Law No. 13-ФЗ On the peculiarities of managing and disposing of property and shares of organizations operating in the field of atomic energy use and on amending certain legislative acts of the Russian Federation adopted on February 5, 2007, amended Article 5 of Federal Law On the use of nuclear energy to stipulate that nuclear materials could be in federal ownership (in the ownership of the Russian Federation), and in the ownership of foreign states and Russian and foreign legal entities.
6 A range of prerequisites necessitated these changes, particularly:
7 The need to eliminate the actual contradiction between the established practice of moving nuclear products through the production process stages, which takes place in the form of non gratuitous transactions between the enterprises involved in the production chain, with the provisions of Article 5 of Federal Law On the Use of Nuclear Energy on the exclusive state ownership of nuclear materials and that nuclear materials may be provided to such enterprises only for use;
8 Low investment appeal of the Russian nuclear industry, since it was impossible to set up international uranium enrichment centers in Russia (such centers set up as joint ventures involving foreign participants were not permitted to own nuclear materials), with the Russian Federation “automatically” acquiring the ownership of nuclear materials imported in its territory as tolling raw materials;
9 The lack of development prospects for the nuclear industry’s mineral resource base, since domestic investors are not interested in exploring uranium reserves and producing uranium in Russia, if it is impossible to obtain ownership of the natural uranium they mine. [6]
10 The domestic regulatory system’s non recognition of the right of private ownership to nuclear materials testified to that it was falling behind the needs of the nuclear materials market participants in the constantly changing nuclear industry. These facts, undoubtedly, are worth analyzing as the drivers of a transition to a completely new level of regulation of this sphere of public relations. However, one should not consider the old approach absolutely inefficient: foreign countries’ experience supports the opposite opinion as well, asserting the possibility of a successful development of nuclear materials market (and the nuclear industry as a whole) where the nuclear materials ownership is vested in public entities.

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