regarding importation of spent nuclear fuel are stipulated in Russian national law and in international treaties.
The treaty reflects a serious opposition toward the idea of Russia’s importing foreign spent nuclear fuel, but underscores the [nuclear] industry’s interest in such a proposition. Article 65 contains quite an unusual norm: it states that if an international treaty to which Russia is a party sets rules that are different from those stipulated in the [national] law, the international treaty takes precedence. In other words, this Article establishes absolute priority of the international treaty over the national federal law.
While Article 65 reflects the interests of the [nuclear] industry, Article 64 contains a series of measures intended to neutralize environmentalists’ concerns with respect to importation of irradiated nuclear fuel. Per Article 64, importation of irradiated fuel assemblies of foreign origin may be done only with the concurrence of a Special Commission appointed by the Russian President. The Commission is comprised of a chair and 20 commissioners: the Office of the President, Federation Council, State Duma, and the Russian Government each provide five representatives. The procedure for proposing candidates from the Federation Council and State Duma is left to the discretion of the appropriate chamber of the Parliament. The Special Commission presents to the President and to both chambers of the Parliament annual reports detailing the state of affairs with respect to importation into Russia of irradiated fuel assemblies of foreign origin.
As far as the author knows, this part of the federal law ‘On the Use of Nuclear Energy’ is partially working. On the one hand, the Special Commission has been formed and is headed by Academician Nikolai P. Laverov. On the other hand, no information is available on the situation when this Commission decided to reject the importation of irradiated nuclear fuel. To some extent, this is happening because the Parliament is more interested in strengthening its bureaucratic positions through the Commission’s activities. Another reason is that the Commission really cannot make any actual decisions with respect to spent nuclear fuel importation: a decision to reject it would be in contravention of an international treaty and would automatically invoke Article 65, giving absolute priority to international legal instruments.
Therefore, no international agreement regarding nuclear energy cooperation requires any modifications or additions to the law under discussion. Hence, the invocation of Article 15 of the law ‘On International Treaties of the Russian Federation’ with its parliamentary ratification provision is legally indefensible. At the same time, the prospect of changes in the political environment after the 2007 parliamentary and 2008 presidential elections may push legislators to invoke the ‘Commission Provision’ of the 1995 law. So, too, may the possibility of a considerable expansion of importation of spent nuclear fuel pending the signing of a U.S.-Russian agreement regarding cooperation in the field of peaceful nuclear energy. It could conceivably perform functions consistent with Article 65 such as preparing annual reports regarding importation of reprocessed fuel or providing an advisory opinion regarding each individual instance of such imports. Under certain circumstances, it is conceivable that the Article 65 provision regarding absolute priority of international treaties could be repealed. If this happens, the Commission would become the guardian of decision-making authority regarding every single international transaction in this field.
As a result of the U.S.-Russian agreement under discussion, export of nuclear materials and technologies will expand. However, it will remain subject to the 1999 federal law ‘On Export Control,’ as well as to a whole series of presidential decrees and government resolutions. This national legal regime was created in order to curb the leaks of sensitive materials and