In order for States to use nuclear science and technology in a safe, secure and responsible manner, they must establish a legislative and regulatory framework. This includes both a robust domestic framework as well as adherence to international conventions and to safeguards agreements with the IAEA.
Challenges to establishing a legislative and regulatory framework and the support offered by the IAEA
As setting up a comprehensive nuclear law for a country can take up several years to develop and enter into force, participants recommended that States ratify the relevant international conventions and adopt the related implementing laws as an early step in raising their capacity. Developing standards for licensing can be challenging even domestically; harmonising these standards internationally can pose additional challenges. As such, early and robust dialogue between the exporter and the domestic regulator of the importer was recommended. Establishing domestic licensing requirements similar to those of the exporting State may accelerate the development of projects.
However, participants cautioned that complete harmonisation is neither realistic nor achievable in the near future. Caution was also advised against using “template regulations”; as regulations should be developed by each State for that State, bearing in mind its plans for developing its nuclear programme and other conditions specific to that State. This plan should span the entire nuclear fuel cycle, from the acquisition of material and facilities (whether imported or domestically produced) to decommissioning and radioactive waste management.
The IAEA’s Nuclear Harmonisation and Standardization Initiative (NHSI) was discussed as a resource that could be of benefit to States as they develop their regulations.[11] This includes both building domestic regulatory capacity and developing more standardised industrial approaches for A/SMR development. It was noted that design standardisation and harmonisation go hand in hand. The standardised approach to regulation of the airline industry was suggested as a way forward for A/SMRs. The NHSI resource is included in the IAEA’s SMR Platform, which facilitates cooperation and collaboration among Member States and other stakeholders to support commercial deployment of A/SMRs.
There are already a number of collaborations between nuclear safety authorities worldwide in order for “experienced” authorities to help newcomer countries to set up their own authority and regulatory framework. In addition, with regard to the licensing of A/SMRs there is an example of nuclear safety collaboration in the review of the design of a new reactor: the joint early review of the EDF Nuward SMR is being carried out by the safety authorities of six countries (Czech Republic, Finland, France, the Netherlands, Poland and Sweden).[12] This is an approach that could be considered in Africa. These initiatives have been addressed at the NHSI.
Participants noted that States with little regulatory experience are not starting from scratch. The IAEA’s Milestones Approach provides a detailed roadmap for nuclear newcomers, including a phased comprehensive method to assist countries that are considering or planning their first nuclear power plant. Existing conventions under the IAEA’s auspices can be instructive in developing regulations, including but not limited to the Convention on Nuclear Safety, the Convention on the Physical Protection of Nuclear Material and its 2005 Amendment.
The IAEA also publishes technical guidance documents with the support of Member States on a wide variety of topics in nuclear safety, security and safeguards. Further assistance is provided through IAEA review missions and advisory services, conducted at the request of Member States, inter alia:
- Integrated Nuclear Infrastructure Review (INIR) missions[13]
- International Nuclear Security Advisory Service (INSServ)[14]
- Independent Safety Culture Assessment (ISCA)[15]
- State Systems of Accounting for and Control of Nuclear Material Advisory Service (ISSAS)[16]
- IAEA Comprehensive Capacity-Building Initiative for SSACs[17] and SRAs (COMPASS)[18]
- The IAEA legislative assistance programme.[19]
Understanding the benefits of 3S-by-design and safeguards-by-design
A practice that can help to address challenges posed by regulatory and legislative requirements is to integrate the approach to safety, security and safeguards (3S). Often in developing countries, safety, security, safeguards and other regulatory functions are housed under one body. 3S-by-design approaches to regulation by countries would facilitate nuclear newcomers growing their regulatory bodies at scale so the regulatory capacity increases commensurately with the size of the nuclear programme.
Potential end users of A/SMRs can also help create demand signal for reactor designers that their designs will be more quickly deployed and face fewer issues with costly retrofits if 3S considerations are integrated into every part of the design process. Safety, security and safeguards–while mutually reinforcing–are often treated in silos. Advanced reactor designers often and understandably treat nuclear safety with the highest priority, followed by nuclear security, and lastly–if at all–nuclear safeguards. In this respect, safeguards-by-design (SBD) could and should be considered by both designers and potential end users as beneficial practice from an economic standpoint.
Bilateral and multilateral capacity building and experience sharing were also referenced as best practices. This includes the United States’ Foundational Infrastructure for Responsible Use of Small Modular Reactor Technology (FIRST) programme and capacity building activities conducted by non-governmental organisations. As one participant observed, there is an assumption that African countries do not have any capacity across the board, though some countries in Africa, notably Ghana, have been developing their own capacity for nuclear and training their regional partners for many years. Many of the lessons applicable to safeguards, for example, are also applicable to nuclear security and Member States have used similar approaches in addressing challenges related to one discipline as another.
The expectations of the nuclear industry of an exporting State with regard to the legal and regulatory framework of the receiving State
When exporting, a supplier of technology, equipment, or services (hereafter the “supplier”) will require that the receiving State has adopted all the relevant international conventions and has implemented them in its national legislation and regulation in order to ensure that the client will be using its technology, equipment or services exclusively for civil purpose and in a safe manner. In addition, States have established export control regulations to regulate all nuclear export and usually sign a nuclear cooperation agreement with receiving State for the same purpose.[20]
In addition, the supplier will seek to have no liability for nuclear damage (i.e. damage caused by ionizing radiation) that may be caused by an incident occurring at the nuclear installation where its technology, equipment or services will be used, installed, or provided. This would require that the exporting State has adhered to the same international instrument(s) on civil liability for nuclear damage than the receiving State, establishing a “treaty relation” between the two. The purpose of this “treaty relation” is to ensure that the main nuclear liability principle, which provides that the operator of a nuclear installation will be exclusively and strictly liable[21] for all nuclear damage suffered, will be applied in case a nuclear incident occurs at that installation. There are five international instruments in this field:
- 1960 Paris Convention on Nuclear Third Party Liability (Paris Convention)
- 1963 Vienna Convention on Civil Liability for Nuclear Damage (Vienna Convention)
- 1997 Amending Protocol to the Vienna Convention (Revised Vienna Convention)
- 1997 Convention on Supplementary Compensation for Nuclear Damage (CSC)
- 1988 Joint Protocol relating to the application of the Vienna Convention and the Paris Convention.
In the absence of this “treaty relation”, the supplier may be subject to claims to compensate potential victims of nuclear damage. The United Arab Emirates and Romania (two countries with nuclear programmes), and Ghana in Africa have, for example, joined the Revised Vienna Convention, the Joint Protocol and the CSC, which puts them in treaty relations with any country that is a party to the Vienna Convention, the Revised Vienna Convention and the CSC. The Joint Protocol puts them in treaty relations with the Paris Convention countries that have also adhered the Joint Protocol.
[11] www.iaea.org/services/key-programmes/smr-platforms-nhsi
[12] www.edf.fr/en/the-edf-group/dedicated-sections/journalists/all-press-releases/nuward-and-edf-are-proud-to-start-the-second-phase-of-the-joint-early-review-of-the-nuward-smr-design-with-an-extended-group-of-european-nuclear-safety-authorities
[13] IAEA, Guidelines for Preparing and Conducting an Integrated Nuclear Infrastructure Review (INIR), IAEA Services Series No. 34, IAEA, Vienna (2017)
[14] IAEA, International Nuclear Security Advisory Service (INSServ) Guidelines, IAEA Services Series No. 39, IAEA, Vienna (2019)
[15] IAEA, Independent Safety Culture Assessment www.iaea.org/sites/default/files/isca_datasheet.pdf
[16] IAEA, IAEA Safeguards and SSAC Advisory Service (ISSAS) Guidelines, IAEA Services Series No. 13 (Rev.1), IAEA, Vienna (2021)
[17] SRA: State or regional authority responsible for safeguards
[18] IAEA, COMPASS – IAEA Comprehensive Capacity-Building Initiative for SSACs and SRAs www.iaea.org/topics/assistance-for-states/compass
[19] IAEA, Legislative Assistance www.iaea.org/services/legislative-assistance
[20] The American suppliers cannot export nuclear technology, equipment or services to countries that have not signed a 123 Agreement for Peaceful Cooperation with the US government (see here for more information).
[21] No other than the nuclear operator will be liable to compensate victims of nuclear damage; and the victims will not need to prove fault or negligence, only the causal link between its nuclear damage and the nuclear incident.