Правовые особенности норм международного права в соответствии с принципами, касающимися использования ядерных источников энергии в космическом пространстве

T he existing rules of international law don’t set any restrictions of sources of power supply of the objectsstartedinspace. So thequestionof differentiation space and air space still remains open [1, p.135].

The problems concerning definition and / or delimitation of space have been considered in the UN since 1967. However it hasn’t succeeded to agree about where airto which full and exclusive sovereignty of the state ex- tends comesto an end and space open for a research and use by all states begins [2, p. 3].

However, as professor Jimenez de Arechaga E. (Uruguay) notes fairly «the fact of lack of definition doesn’t influence the legal regimes and the principles applicable concerning space in the same way as existing for a long time various norms determining width of territorial waters in any way didn’t cancel the rules regulating behavior of the states in the high sea» [3, p. 332].

The fundamental international legal principles contain in the Treaty on principles governing the activities of states in the exploration and use of outer space, including the Moon and other celestial bodies. It was signed on 27 January 1967 year. The Treaty regulates activity of the states in the sphere of space exploration. Article I of the Treaty establishes that «outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law …». The subsequent articles of the Treaty contain certain restrictive provisions by which the states have to be guided at a research and use of space [4, p. 334]. Howeverthe Treaty don’t have any obligations forbidding a spacewalk of objects with nuclear power sources (further – NPS). At the same time it is important to emphasize that the obligation which is contained in the article IV «not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner» has no relation to objects with NPS on board as nuclear power sources as isotope as reactor type are in explosive. So it can’t be considered as weapons of mass destruction.

The registration of the international legal mode of use of nuclear power sources on board began in 1978 year. It was connected that he Soviet military Space-954 satellite with the nuclear power station on board entered dense regions of the terrestrial atmosphere in view of technical malfunctions and collapsed over desert sparsely populated regions of the northwest of Canada (the area of the Big Slave lake) on 24 January 1978 year. As a result the fulfilled nuclear fuel vanished generally in the atmosphere and partially over the land surface. The device fragment with a part of the nuclear reactor in which was a uranium-235 fell near the Canadiantown Uranium-City. This case with the Soviet satellite has shown gaps in international law and has pushed the international community to development of the international documents in the sphere of usage of nuclear power sources in space.

The first time when questions of use of NPS in space were raised in the UN during the 51st session of the Scientific and technical subcommittee of the United Nations committee on the peaceful uses of outer space in 1978. Questions of using of NPS onboard space objects also were considered at the session of Legal subcommittee of UN committee on the peaceful uses of outer space.

In 1980 the Legal subcommittee considered the part of the agenda entitled «The review of the existing rules of international law concerning activity in the sphere of space for the purpose of establishment of expediency of addition of similar rules of law with the pro- visions concerning use of nuclear power sources in outer space».

The Legal subcommittee discussed the question «consideration of a possibility of addition of the rules of international law relating to use of nuclear power sources in outer space» in 1981-1985 years. Since 1986 Legal subcommittee and the working group which was established for the next purpose began development of project principles concerning use of nuclear power sources in outer space. The Subcommittee actively used the conclusions and recommendations coordinated concerning NPS in Scientific and technical subcommittee in this work. The principles developed in Legal subcommittee concerned the following main subjects connected with use of NPS in space: the notice, safety, assistance in case of accidents, responsibility including damage liability and others. Developments of project principles were successfully completed in 1992 year.

The principles concerning use of nuclear power sources in outer space include 11 provisions.

The first principle is applicability of international law. It is directly specified that the activity connected with use of nuclear power sources in outer space is carried out according to international law including in particular the Charter of the UN and the Treaty on principles governing the activities of states in the exploration and use of outer space, including the Moon and other celestial bodies.

The second principle is using of terms for the purpose of these principles (the starting state and a number of technical concepts).

The third principle designatesthe governing principles and criteria of safety of use. It is noted that for minimizing of amount of radioactive material in outer space and the risks connected with it use of nuclear power sources in outer space is limited to those space flights which can’t be made in the reasonable way with use of non-nuclear power sources.

The third principle consists of three special parts.

The first part is about common goals concerning radiation protection and nuclear safety. The main element of this part is the rule that the states launching space objects with nuclear power sources onboard make efforts for protection of individuals, the population and biosphere from radiological dangers. The design and use of space objects with nuclear power sources onboard have to provide with high degree of confidence that under the expected normal or emergency circumstances danger was below the acceptable levels determined in this third principle.

This part of the document records that security systems have to be projected, be designed and be operated according to the general principle of deep protection. This principle means existence of an opportunity to eliminate or neutralize any expected refusals or mal- functions in operation of the device, fraught with consequences for safety by using of an operation or the procedure.

The principle provides a possibility of acceptance other measures.

The separate section is devoted to nuclear reactors. Their technical characteristic is given besides designation of types of flights where reactors can be used. Only highly enriched uranium is used as fuel in nuclear reactors. In a design Radioactive decay of fission products and activization is considered in a construction.

In this principle it is clearly designated that nuclear reactors aren’t brought to critical level before achievement of an operational orbit by them or to a conclusion to an interplanetary trajectory. Special attention is paid to their safe exploitation.

One more source of obtaining energy as radioisotope generators is allocated in the third section of this principle. They can be used for interplanetary flights and other flights outside gravitational field of the Earth. Their use and on the Earth orbit is supposed if after end of a working part of the flight they are stored in a high orbit. Anyway their final removal is necessary.

Radioisotope generators are protected by system of the protective cover designed to maintain thermal and aerodynamic loadings during return to an upper atmosphere inthe expected orbital conditions including at an entrance from high-elliptic orbits if it takes place. The system of a protective cover and physical shape of isotopes guarantees lack of emission of radioactive material in the environment at blow about the earth. It is caused with that the area of falling could be deactivated completely by carrying out operation on evacuation.

The fourth principle is entirely devoted to assessment of safety and use of nuclear sources.

A launching State at the time of launch shall, prior to the launch,through cooperative arrangements, where relevant, with those which have designed, constructed or manufactured the nuclear power sources, or will operate the space object, or from whose territory or facility such an object will be launched, ensure that a thorough and comprehensive safety assessment is conducted. This assessment shall cover as well all relevant phases of the mission and shall deal with all systems involved, including the means of launching, the space platform, the nuclear power source and its equipment and the means of control and communication between ground and space.

It is especially told about a possibility of obtaining the interesting information on safety by other parties in this principle. So, pursuant to article XI of the Treaty on principles governing the activities of states in the exploration and use of outer space, including the Moon and other celestial bodies, the results of this safety assessment, together with, to the extent feasible, an indication of the approximate intended time-frame of the launch, shall be made publicly available prior to each launch, and the Secretary-General of the United Nations shall be informed on how States may obtain such results of the safety assessment as soon as possible prior to each launch.

Concrete terms and more detailed procedures of the notice in principle aren’t given. Each state proceeds from optimum approaches in this respect.

The fifth principle is devoted to the notice of return.

Any State launching a space object with nuclear power sources on board shall in a timely fashion inform States concerned in the event this space object is malfunctioning with a risk of re-entry of radioactive materials to the Earth. The information shall be in accordance with the following format:

• a)    System parameters:

• •    name of launching State or States, including the address of the authority which may be contacted for additional information or assistance in case of accident;

• •    international designation;

• •    date and territory or location of launch;

• •    information required for best prediction of orbit

lifetime, trajectory and impact region;

• •    general function of spacecraft;

• b)    Information on the radiological risk of nuclear power source(s):

• •    type of nuclear power source: radioisotope reactor;

• •    the probable physical form, amount and general radiological characteristics of the fuel and contaminated and/ or activated components likelyto reachthe ground. The term “fuel” refers to the nuclear material used as the source of heat or power.

This information shall also be transmitted to the Secretary-General of the United Nations.

The information, in accordance with the format above, shall be provided by the launching State as soon as the malfunction has become known. It shall be updated as frequently as practicable and the frequency of dissemination of the updated information shall increase as the anticipated time of re-entry into the dense layers of the Earth’s atmosphere approaches so that the international community will be informed of the situation and will have sufficienttime to plan for any national response activities deemed necessary. It should be mentioned that the updated information shall also be transmitted to the Secretary-General of the United Nations with the same frequency.

The sixth principle is devoted to a question of consultations. He provides that State providing information in accordance with principle 5 shall, as far as reasonably practicable, responds promptly to requests for further information or consultations sought by other States.

The seventh principle is devoted assistance to States.

Uponthe notification of an expected re-entry into the Earth’s atmosphere of a space object containing a nuclear power source on board and its components, all States possessing space monitoring and tracking facilities, in the spirit of international cooperation, shall communicate the relevant information that they may have available on the malfunctioning space object with a nuclear power source on board to the Secretary-General of the United Nations and the State concerned as promptly as possible to allow States that might be affected to assess the situation and take any precautionary measures deemed necessary.

After re-entry into the Earth’s atmosphere of a space object containing a nuclear power source on board and its components:

• 1)    the launching State shall promptly offer and, if requested by the affected State, provide promptly the necessary assistance to eliminate actual and possible harmful effects, including assistance to identify the location of the area of impact of the nuclear power source on the Earth’s surface, to detect the re-entered material and to carry out retrieval or clean-up operations;

• 2)    all States, other than the launching State, with relevant technical capabilities and international organizations with such technical capabilities shall, to the extent possible, provide necessary assistance upon request by an affected State.

The eighth principle is devoted to responsibility.

In accordance with article VI of the Treaty on principles governingthe activities of states inthe exploration and use of outer space, including the Moon and other celestial bodies, States shall bear international responsibility for national activities involving the use of nuclear power sources in outer space, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that such national activities are carried out in conformity with that Treaty and the recommendations contained in these Principles [5, p.5]. When activities in outer space involving the use of nuclear power sources are carried on by an inter- national organization, responsibility for compliance with the aforesaid Treaty and the recommendations contained in these Principles shall be borne both by the international organization and by the States participating in it.

The ninth principle regulates liability for damage and compensation.

In accordance with article VII of the Treaty on principles governingthe activities of states inthe exploration and use of outer space, including the Moon and other celestial bodies, and the provisions of the Convention on international liability for damage caused by space objects, each State which launches or procures the launching of a space object and each State from whose territory or facility a space object is launched shall be internationally liable for damage caused by such space objects or their component parts. This fully applies to the case of such a space object carrying a nuclear power source on board. Whenever two or more States jointly launch such a space object, they shall be jointly and severally liable for any damage caused, in accordance with article V of the above-mentioned Convention.

The compensation that such States shall be liable to pay under the aforesaid Convention for damage shall be determined in accordance with international law and the principles of justice and equity, in order to provide such reparation in respect of the damage as will restore the person, natural or juridical, State or international organization on whose behalf a claim is presented to the condition which would have existed if the damage had not occurred. Also, compensation shall include reimbursement of the duly substantiated expenses for search, recovery and clean-up operations, including expenses for assistance received from third parties.

The tenth principle is devoted to settlement of disputes. The tenth principle is devoted to questions of settlement of disputes. He provides that any dispute resulting from the application of these Principles shall be resolved through negotiations or other established procedures for the peaceful settlement of disputes, in accordance with the Charter of the United Nations.

The eleventh principle concerns questions of the review and an order of their revision. According to its provisions these Principles concerning use of nuclear power sources in space shall be reopened for revision by the Committee on the peaceful uses of outer space no later than two years after their adoption.

It should be noted that there is also a problem of assessment of consequences of collisions of nuclear power sources with space debris which is paid attention by Scientific and technical subcommittee during recent years. That is fraught with serious negative consequences in respect of radiation pollution of space and also in case of an emergency descent of NPS from an orbit and collision with the terrestrial atmosphere and other components of the environment.

Presumable consequences of collision ofthe reactor NPS with space debris started in space and which are in rather high orbits:

• a)    destruction of fuel elements (uranium-235 with fission products and beryllium in a face reflector) for reactors with emission of assembly of fuel elements on some satellites of the «Space» series;

• b)    destruction of a side reflector of the reactor (beryllium), cases of the reactor and fuel elements in the reactor case for jet NPS without emission of assembly of fuel elements;

• c)    destruction of the block of radiation protection (lithium hydride);

• d)    destruction of a thin and metallic contour and possible leakage of the heat carrier (sodium-potassium);

• e)    destruction of elements of a design of reactor NPS with formation of fragments and particles of constructional materials.

The main results of a research of the consequences of collision of the reactor NPS with space debris started in space and which were in orbits of 700-1100 km were published in reports atthe sessions of Scientific and technical Subcommittee earlier.

The possibility of emergence of a collision between the carried-out programs and the new or reconsidered principles of safety can’t be excluded completely. The safety level provided with the existing Principles also is unsatisfactory. So, in the document of Great Britain it is assumed that withdrawal of the spacecraft into a so-called «safe» orbit provided sufficient degree of protection. Besides, collision with space debris can lead to decrease in duration of finding of reactors of spacecrafts in an orbit. There is a possibility that before final return to the atmosphere of all nuclear objects which are in an orbit there will be a collision of one of them with a fragment of space debris up to one centimeter in size in the diameter at modern degree of pollution of near-earth space. It is possibleto expect what won’t result from such collision of considerable additional pollution. Nevertheless, modeling of process of increase of a total stream of space debris at the corresponding height demonstrates that the size of garbage doubles each 35 years. Thus, the frequency of impacts can increase a million times in 600 years increasing possibility of collision with larger fragments of space debris that can cause essential reduction of duration of stay in an orbit of the reactor of the spacecraft to which there is a collision.

According to Great Britain these reasons indicate the need creations of the reconsidered basis for safety of NPS in space with all evidence. The International Atomic Energy Agency (IAEA) has achieved significant progress in this regard and has published a number of documents in a series of editions on safety since the beginning of the 80th years. One of the most important publications of category «Safety Bases» are documents on safety of nuclear installations. Some offers of rather potential risks of radiation have included in recommendations ofthe International committee on radiation protection of 1990. The new important concept of nuclear safety has been developed as a result of the carried-out IAEA of detailed studying of the reasons and consequences of the Chernobyl accident.

These works have formed a basis for preparation of a series of the documents submitted to Scientific and technical subcommittee by Great Britain and other countries. They have allowed reconsidering the Principles from the point of view of process but not means of achievement of safety, providing the general but not the concrete nature of approach to safety issues. As a result allowing those developers of space flights consider absolutely new ways of achievement of goals of safety without limiting itself to need of respect for the principles having standard character.

Six Additional principles are distinguished in new approach. Their aim is reflecting in the Principles the happened late changes concerning culture of safety, justification of risk, restriction of risk, and decrease in risk, guarantees and pollution of space. Remarks which have been made concerning them during work of Scientific and technical subcommittee in February 1996 year in Vienna and during discussions in UN committee on use of space in the peace purposes in June 1996 year demonstrate that some of these ideas can become a basis for reachingconsensus concerning revision ofthe Principles.

Thus, imperfection of the Principles concerning use of nuclear power sources in space was recognized during their acceptance by the General Assembly on December 14, 1992 that it was expressed in the decision to begin process of their revision in two years. Therefore emergence of this situation was inevitable. The basis for establishment of the mode of safety of nuclear power sources in space didn’t exist in spite ofthe fact that many countries, especially those from them which carried out programs of use of nuclear energy had quite accurate systems of regulation of conditions of use of the nuclear energy at the national level coordinated at the international level.

A number of the states supported essential revision of the Principles at consideration of a question of use of nuclear power sources in space within Scientifically – technical subcommittee for several last years of delegation. They motivated it with the fact that the existing principles not fully reflect the standards of nuclear safety developed in IAEA.

The recommendations of the International committee on radiation protection (ICRP) made in 1977 were the only international normative document in this sphere during development inthe early 80th years of the Principles accepted in 1992. This document was unsatisfactory because the question of the prevention of accidents wasn’t raised in them.

It was also difficult to achieve recognition of the Principles which didn’t exist during development of the space programs which are carried out now with use of NPS. There are discrepancies between new provisions concerning the best practice of safety and the carried-out programs which are based on former practice of safety.

Perhaps, for this reason the Principles were developed in relation to concrete technologies within which it is possible to provide compliance and didn’t mention those directions of application of NPS in space where there can be discrepancies. Therefore the terms other than what are usually applied to alltypes of use of NPS in space were used at a formulation of the Principles.

Nowadays there is no problem of lack of the international consensus concerning development of a basis for providing measures of nuclear safety.

In general the international regulation of questions of safe application of NPS has gained rather detailed development by the present moment. Dynamic scientific and technical progress causes need for regular updating of the guidelines and norms accepted by the international community in the sphere of development and application of NPS. At the same time their quick formalization is necessary in legal documents.

Space-rocket activity makes an essential contribution to sustainable development of mankind. At the same time it makes also negative impact on the biosphere of the Earth and on near-earth space. On the one hand, use of nuclear power sources is objectively necessary for development of astronautics, on the other hand, it carriers potential danger to the environment and mankind in general.

Despite acceptance the resolution 47/68 of the United Nations General Assembly «The principles concern uses of NPS in space» in 1992, the number of questions remained unresolved. It is emphasized in a pream- ble of «Principles» that they were applicable only to NPS intended for development of electric energy onboard the space objects for which weren’t connected with power supply of the propulsion system.

The Principles concerning use of nuclear power sources in space, accepted by the United Nations General Assembly in the resolution 47/68 of December 14, 1992 have no obligatory validity and also, owing to lack of the international treaty in this sphere. So, the launched state is forced to solve this problem at the national level that is represented not effective as the damage can concern any state and not just launching.

Thus, nowadays it is necessaryto developthe procedure of cooperation between member states of the United Nations and IAEA at the international level. They have appropriate means of control of space and tracking space objects on the Earth orbits. It will allow providing objective information on possible return to the atmosphere of nuclear power sources and opportune preparation for it using all available opportunities and means for detection of the place of falling and search of nuclear power sources and / or some of his parts in the territory of the state where there was such falling.