Presentation Transcript

1. The Legal Landscape After Nuclear Spacecraft Reentry and Contamination: Are International Environmental Law and Space Law Ready to Cope?

   Melissa Kemper Force, B.S. Ch.E., J.D., LLM
2. Nuclear Power Sources Radioisotope Power Source Radioisotope Heating Units (RHU) (often flown) Radioisotope Thermoelectric Generators (RTG) (often flown) Nuclear Fission Reactors 1 flown by US 34 flown by Former Soviet Union Nuclear Thermal Rocket Propulsion 1960s NERVA program (never flown) 1990s SNTP program (never flown)
3. Plutonium Fuel Pellet
4. Radioisotope Heating Units
5. Radioisotope Thermoelectric Generators
6. Safety of RTGs (Radioisotope Thermoelectric Generators) Fuel in ceramic form fractures into large non-respirable particles Fuel is divided among small independent modular units Multiple layers of iridium capsules and graphite blocks protect each module
7. Nuclear Power Missions
8. US SNAP-10-A Nuclear Reactor
9. Safety of Fission Reactors 1. Fission reactors do not begin working until the reactor is operational (critical) Sub-critical during launch/ascent avoids meltdown risk while re-entry possible 2. If reentry: Complete burn-up (aerosolization) in upper atmosphere or Intact-through-impact survival 3. At mission end, moved to orbit high enough that fuel products have time to decay
10. Nuclear Conventions Convention on Early Notification of a Nuclear Accident Convention on Assistance in the Case of a Nuclear Accident Convention on the Physical Protection of Nuclear Material
11. 1992 Principles Relevant to Use of Nuclear Power Sources In Outer Space Principle 1. Applicability of international law (OST, UN Charter) Principle 2. Use of terms (foreseeable; defence-in-depth; made critical) Principle 3. Guidelines and criteria for safe use 1. General goals for radiation protection and nuclear safety (1 mSv/year) 2. Nuclear reactors 3. Radioisotope generators Principle 4. Safety assessment (OST Article IX) Principle 5. Notification of re-entry Principle 6. Consultations Principle 7. Assistance to States Principle 8. Responsibility (OST Article VI)    Principle 9. Liability and compensation (OST Article VII, LC) Principle 10. Settlement of disputes       Principle 11. Review and revision (two years after adoption)
12. US Reservations to the 1992 NPS Principles “The United States did not block the consensus recommendation of the Committee to forward the principles to the General Assembly, nor will the United States oppose their adoption here. On some points, however, it remains our view that the principles related to safe use of nuclear power sources in outer space do not yet contain the clarity and technical validity appropriate to guide safe use of nuclear power sources in outer space. The United States has an approach on these points that it considers to be technically clearer and more valid and has a history of demonstrated safe and successful application of nuclear power sources. We will continue to apply that approach.” -- Statement by Kenneth Hodgkins to UNGA Special Political Committee, 28 October 1992
13. The NPS Safety Framework Foundation and guidance for States and IGOs Flexibility to adapt to specific applications Assurance to the global public that NPS applications will be launched and used safely – address stigma
14. IAEA/UN Safety Framework Guidance for Governments authorize NPS missions verify the rationale for using them Guidance for Management establish effective protocols for safety Guidance for Technical Competency design NPS applications perform risk assessment
15. Implications International consensus and universally accepted technical basis Legal standard of care or a standard for due diligence. Is noncompliance evidence of fault? Is compliance evidence of lack of fault? Relevant to "fault" provisions of Liability Convention Relevant to international environmental law obligation to mitigate transboundary damage
16. Space Law Treaties The Outer Space Treaty Article VI – International responsibility; authorization and continuing supervision Planetary Resources Article VIII – “jurisdiction and control” State does not lose ownership by launching an object in space Subject to the Article VI obligation of continuing supervision Article IX Pursue studies of outer space … so as to avoid their harmful contamination Also adverse changes on Earth resulting from extraterrestrial matter
17. Space Law Treaties The Liability Convention Article 2 – Absolute liability for damage on the surface of Earth Article 1 – Damage: Loss of life, personal injury or property damage Article 3 – Fault-based liability for damage occurring in space
18. International Environmental Law Principle 21, Stockholm Declaration: States have, in accordance with the UN Charter and the principles of international law, the sovereign right to exploit their own natural resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. (See also Principle 2, Rio Declaration.)
19. International Environmental Law Development of Decisions of International Tribunals has, over time, lead to recognition as customary international law Corfu Channel (U.K. v. Alb.), Merits, 1949 I.C.J. 4, 22 (April 9). Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1905-81 (1941) Legality of Threat or Use of Nuclear Weapons, Adv. Op., 1996 I.C.J. 226 Gabcikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, para. 53 Arbitration Regarding the Iron Rhine Railway (Belg. v. Neth), 23 R.I.A.A. 35 (Perm. Ct. Arb. 2005) Case Concerning Pulp Mills on River Uruguay (Arg. v. Uru.), 2010 I.C.J.
20. International Environmental Law Recognized by international law scholars as a principle of customary international law International Law Commission, Draft Article 3 on the Prevention of Transboundary Harm from Hazardous Activities (“The State of origin shall take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof.”) International Law Association, Rules on Int’l Law Applicable to Transfrontier Pollution, 60 I.L.A. 158 American Law Institute, U.S. Restatement (Third) of the Law of Foreign Relations section 601(1). U.N. Experts Group on Environment and Development, U.N. Doc. WCED/86/23, Art. 10 (1986).
21. NPS in International Environmental Law Aspects of the NPS that are terrestrial producing, acquiring, handling, storing and shipping the fuel and/or device into which it is incorporated Damage to Earth or its biosphere resulting from an accident including the transboundary obligations Compliance with the due diligence standard adoption of legislative, administrative or regulatory action setting requirements for NPS use, design and implementation
22. Comparison of Safety Framework with US Federal Law
23. Conclusions Radioisotopes as a concentrated energy source in RHU, RTGs and NEP systems have proven to be reliable and safe over the past 40 years International law contains a semblance of predictability in terms of the due diligence expected of nations undertaking NPS space missions Compliance with the due diligence standard is made much more accessible after adoption of the 2009 NPS Safety Framework Guidance for governments, management and technical competence in the use of space NPS sets a safety standard that may be relevant in determining whether users have acted with “due care” in undertaking NPS missions
24. Thank You!