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The international law of shipments of ultrahazardous radioactive materials: strategies and options to protect the marine environment.



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Globelaw

International and Transnational Law

The International Law of Shipments of Ultrahazardous Radioactive Materials: Strategies and Options to Protect the Marine Environment

Paper given to South Pacific Regional Workshop on Criminal Law and its Administration in International Environmental Conventions

Apia, Western Samoa 22-26 June 1998

Duncan E.J. Currie [1]

1. Introduction and Executive Summary

Over the past decades the Pacific environment has been faced with threats emanating from outside the Pacific related in the main to new technologies being developed by and for states outside the Pacific - atmospheric nuclear testing,[2] followed by renewed underground nuclear testing,[3] and driftnet fishing, [4] to name a few - issues which have been addressed, with varying success by the Pacific community in the international environmental legal framework. New technical and economic developments have now thrown up new challenges to environmental policymakers and legislators, including nuclear transports and most recently at-sea rocket launches.

These developments face policymakers and legislators with a challenge: to allow the Pacific to become a testing ground for new technologies or to address the challenges effectively. This paper focuses on some of the issues surrounding these challenges and offers a brief overview of the governing legal principles and a description of some options and strategies to address the challenges.

The paper canvasses law relating to these issues and specifically addresses the Law of the Sea Convention, other applicable treaties and customary international law, namely the duty to protect the marine environment, notification and consultation with affected nations, the preparation of an environmental impact assessment, the duty to avoid causing harm to others, and the preparation of appropriate emergency contingency plans. Concerned countries should be working through international organisations such as the International Maritime Organization (IMO), the International Atomic Energy Agency (IAEA), and regional organizations to develop and strengthen the rules that govern these matters.

This paper suggests some strategies that can be taken to clarify ambiguous situations. It is particularly important that Pacific Island states work on a regional basis to address these matters in a regionally co-ordinated fashion lest the Pacific become a path of least resistance.

Until a new regime is fully developed, affected nations have taken and can take

unilateral or regionally-coordinated action as needed to protect themselves, including national legislation and measures to keep ultrahazardous nuclear shipments out of their territorial seas and exclusive economic zones. On a regional basis, a new

protocol to address specific issues is advocated. Another important avenue available to concerned nations dispute settlement in the Law of the Sea convention, within which provisions are designed to address and resolve disputes including those between nations claiming the right to free navigation and nations seeking to protect their adjacent marine environment. An action brought by concerned coastal and island nations could assist in bringing pressure on the shipping nations and in clarifying the governing law.

2. Factual Matrix

Nuclear industries in Japan, France, and the United Kingdom commenced shipping highly toxic radioactive materials [5] which include the shipments of high level nuclear waste (HLW), irradiated nuclear fuel (INF) and plutonium (PU) on a commercial basis [6] between Japan and Europe with the voyage of the Akatsuki Maru in 1993. The further voyages of Pacific Pintail in 1994/1995 and the Pacific Teal in 1996/1997 and the voyage of the Pacific Swan through the Panama Canal this year led to a widespread public outcry and protest by many states. [7] The issues are well known by now: concerns centre upon the possibility of accidents such as fire, collision or sinking giving rise to contamination of the marine environment.

3. Governing Principles of International

Law The 1982 United Nations Convention on the Law of the Sea, [8] a network of treaties and customary international law recognize a number of specific obligations to which all users of the sea must adhere. Vessel source pollution regulation falls largely under the treaty framework of the SOLAS Convention [9] and MARPOL 73/78 convention. [10] The Basel [11] and Waigani [12] conventions deal with the transboundary movement of hazardous wastes. There are a number of specific treaties related to nuclear energy and liability and a number of regional Conventions lay down specific principles relevant to shipments of radioactive waste.

3.1 UNCLOS

The Law of the Sea Convention provides a number of specific obligations to which all users of the sea must adhere.

3.1.1 Protection of the Marine Environment

Article 192 of the Law of the Sea Convention states that "States have the obligation to protect and preserve the marine environment." Article 235(1) reinforces this with specific liability: "States are responsible for the fulfillment of their international obligations concerning the protection and preservation of the marine environment. They shall be liable in accordance with international law." States have the right to take measures following a casualty at sea [13]

3.1.2 The Duty to Avoid Causing Harm to Other States

Principle 21 of the Stockholm Declaration on the Human Environment [14] affirmed a responsibility on states "to ensure that activities within their jurisdiction and control do not cause damage to the environment of other states or areas beyond the limits of national jurisdiction." [15] South Africa has cited the principle that no nation must enjoy the right to expose another to danger as one of the principles underlying its opposition to the journey of the Pacific Teal. [16] Whether or not specific harm is alleged - such as radioactive contamination reaching a state through fisheries, as from perhaps nuclear testing as was the issue in the 1996 Nuclear Tests case - environmental damage per se must not be disregarded. The Nuclear Tests cases [17] provide a regional example of states, in this case Australia and New Zealand, arguing for the right to bring a claim to prevent damage to an area beyond national jurisdiction, regardless of damage on its territory. [18]

3.1.3 Preparation of an Environmental Impact Assessment

Since Principle 17 of the Rio Declaration [19] it has been clear that an environmental impact assessment should be undertaken for proposed activities that are likely to have a significant adverse impact on the environment. The Law of the Sea Convention [20]

implements this principle by requiring that states that undertake "activities under their jurisdiction or control [that] may cause substantial pollution of or significant and harmful changes to the marine environment shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments" to other countries that may be affected by the project. This is also implemented on a regional level: the SPREP Convention [21] requires that "[e]ach party shall, within its capabilities, assess the potential effects of projects on the marine environment, so that appropriate measures can be taken to prevent any substantial pollution of, or significant and harmful changes within, the Convention Area." [22] It is noted that this obligation is mandatory, rather than discretionary.

3.1.4 Notification and Consultation with Affected Countries

International law requires prior and timely consultation at an early stage and in good faith and the provision of relevant information to potentially affected states whenever the activity of one nation may have a significant adverse transboundary environmental effect. [23] Similarly international law requires prior consultation whenever the activity of one nation creates a significant risk of harm to another nation. [24] Inherent in the duty to consult is the duty to inform or notify, which is a precondition of meaningful and effective consultation. [25] The International Court of Justice recognized this duty to inform in the Corfu Channel case, [26] where Albania was held to have the duty to disclose the presence of mines in the channel. Likewise France was required to consult in good faith with Spain over riparian rights in the Lac Lanoux case. [27]

The Law of the Sea Convention [28] requires that when a State becomes aware of cases in which the marine environment is in imminent danger of being damaged or has been damaged by pollution, it shall immediately notify other States it deems likely to be affected by such damage, as well as the competent international organizations. The Convention on Early Notification of a Nuclear Accidents [29] requires

notification of accidents involving facilities or activities of a State party from which a

release of radioactive material occurs or is likely to occur and which has resulted or may result in an international transboundary release that could be of radiological safety significance for another State, directly or through the IAEA, to States which are or may be physically affected. [30] The transport and storage of nuclear fuels or radioactive wastes are included in facilities and activities covered by the convention. [31]

The shipping states in question refused to disclose the route in earlier shipments. [32] A delegation of British Nuclear Fuels and public relations officials visited various countries along the route. However the vessel traversed the South African EEZ after that country received assurances from the officials that it would not do so. [33]

Prior notification is hardly exceptional: OECD guidelines call on member States to prohibit movement of hazardous wastes without the consent of the importing country and the prior notification to transit countries, [34] the Basel Convention requires prior notification to non-Party transit States [35] and the IAEA Code requires permission for a State to ban the transit of radioactive waste through its territory. [36]

3.1.5 Preparation for Foreseeable Emergency Contingencies

The necessity to prepare for foreseeable emergency contingencies follows from the requirements to notify other states of disasters threatening harmful effects on their environment [37] and to prevent or limit damage to the environment [38] and is closely related to the precautionary principle. This need is particularly compelling with incidents resulting in the release of radiation, and hence concern stemming from the Chernobyl accident gave rise to the IAEA Guidelines [39] and then the 1986 Notification Convention. [40] This duty is specifically implemented in the SPREP convention [41] which provides that Parties shall co-operate in taking all necessary measures to deal with pollution emergencies in the Convention Area and to prevent, reduce and control pollution or the threat of pollution, and which requires Parties to develop and promote individual contingency plans and joint contingency plans for responding to incidents involving pollution or the threat thereof in the Convention Area. [42]

The consequences of an accident involving a ship transporting highly toxic radioactive material could be so serious that emergency procedures must be in place to address possible fires, collisions, and sinkings. These procedures must include access to appropriate ports, availability of tugboats and firefighting equipment, and plans for retrieval in the event of a sinking. [43]

3.1.6 Liability

Liability may also be established for a breach of an international obligation such as due diligence. In many legal systems, as in international law, [44] when an actor engages in ultrahazardous activity and harm results, the actor is held to be liable under a theory of strict liability. In either case, the country conducting the risk-creating activity must provide compensation to the victims for their resulting injuries. Specific treaties on liability for nuclear accidents are the Paris [45] and Vienna [46] Conventions supplemented by the Brussels Convention [47] linked by a Joint Protocol adopted in 1988. [48] In the case of a nuclear incident involving nuclear material in the course of carriage, the applicable Convention is that to which the State is a Party

within whose territory the relevant nuclear installation is situated whose operator is

liable. [49] The Maritime Liability Convention [50] exonerates any person who may be held liable for damage caused by a nuclear incident if the operator of a nuclear installation is held liable for such damage under either the Paris or the Vienna Convention or under national law. [51] Many gaps exist in the current treaty framework. [52] For the moment the IMO has left the question of developing a liability regime for INF nuclear material at sea to the IAEA. [53] States concerned at obtaining adequate compensation under the question regime need to consider carefully the issues of which Treaty to join and to obtain careful legal advice specific to their circumstances. [54]

3.2 The Law of the Sea Convention

3.2.1 Protection of the Marine Environment Protection of the marine environment is now a dominant concern with the emergence of overfishing, oil and chemical spillages, toxic waste transport and of course radioactive transports. States must take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with the Convention. [55]

The measures taken shall deal with all sources of pollution of the marine environment and shall include those designed to minimize to the fullest possible extent pollution from vessels, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges, and regulating the design, construction, equipment, operation and manning of vessels. [56] This obligation has emerged as a countervailing force against the freedom of navigation, which has throughout its development has been set against other rights and uses of the ocean. [57] Freedom of the high seas is exercised under the conditions laid down by the Convention and by other rules of international law and with due regard for the interests of other States in their exercise of the freedom of the high seas. [58] Coastal states have jurisdiction in the EEZ for the purpose of the protection and preservation of the marine environment. [59]

3.2.2 Protection of Territorial Seas

3.2.2.1 The Character of Innocent Passage

While innocent passage is permitted through territorial seas, this assumes that passage is in fact innocent. Passage is innocent [60] so long as it is not prejudicial to the peace, good order or security of the coastal State. [61] Coastal States may argue that passage of ultrahazardous radioactive cargo is in fact prejudicial to the security of the coastal State, thus rendering the passage non-innocent. [62] Canada in 1970 made a similar argument with respect to regulating tanker traffic 100 miles from its coastline in the arctic in passing its Canadian Arctic Waters Pollution Prevention Act of 1970, [63] claiming the "overriding right of self-defence of coastal States to protect themselves against grave threats to their environment". [64]

Such powers can also be based on Convention. The Australian Protection of the Sea

(Powers of Intervention) Act 1981 [65] implementing the 1969 Intervention Convention [66] empowers the Minister to "take such measures on the high seas as he considers necessary to prevent, mitigate or eliminate the danger" from pollution or

threat of pollution of the sea from oil following a maritime casualty which may reasonably be expected to result in major harmful consequences. [67] Similar powers are given in relation to a danger from substances other than oil. [68]

3.2.2.2 The Regulation of Innocent Passage

Passage must take place in compliance with coastal laws mandated by international law as well as with the Convention and with other rules of international law. [69] While flag States may argue that the coastal State is prohibited from hampering the innocent passage of foreign ships through the territorial sea except in accordance with the Convention, [70] this leaves the question of what provisions are in accordance with the convention just as Article 19 raises the question of what voyages take place in conformity with international law. Certainly a requirement of notification would not run contrary to Article 24. Coastal States may adopt laws and regulations, in conformity with the provisions of the Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of (inter alia) (a) the safety of navigation and the regulation of maritime traffic; (d) the conservation of the living resources of the sea; (f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof; and (h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State. [71]

Ships carrying nuclear or other inherently dangerous or noxious substances must carry documents and observe special precautionary measures established for such ships by international agreements when exercising the right of innocent passage through the territorial sea under Article 23. [72] Article 23 of the Convention in effect incorporates the IAEA Code. [73] The Code's Article III(3) provision that it is the sovereign right of every State to prohibit the movement of radioactive waste into from or through its territory would thus operate. [74] Article 23 thus provides a method whereby international regulation of ultrahazardous radioactive cargoes can be harmonized with the Law of the Sea Convention and protection of the territorial seas. Additionally ships carrying nuclear or other inherently dangerous or noxious substances or materials may be required to confine their passage to sea lanes [75] within the Law of the Sea Convention.

In conclusion, the requirement that passage through territorial seas be innocent and that it must take place in conformity with international law, the incorporation of provisions of other Conventions, the regulatory authority granted coastal States, the recognition of other international documents and the provision for sea lanes leave coastal states scope for protecting their territorial seas from shipments of ultrahazardous radioactive material.

3.2.3 Protection of Exclusive Economic Zones

In the Exclusive Economic Zone (EEZ), navigational freedoms are protected, but at the same time marine resources and responsibility for the marine environment are allocated to the adjacent coastal State. [76] The patchwork of provisions in the Law of the Sea Convention relating to the EEZ reveal the competing priorities. [77] Rights of

navigation are qualified 'subject to the relevant provisions of this Convention' [78]

and States are directed to 'have due regard to the rights and duties of the coastal State' and to 'comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.' [79]

Coastal States have jurisdiction with regard to the protection and preservation of the marine environment [80] provided that they shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of the Convention. [81] Already this provision, when combined with sovereign rights over the management of natural resources, [82] has been said to carry a significant jurisdiction to prevent pollution [83] and to evidence the potential for coastal States to place considerable limitations upon navigational rights in an attempt to ensure environmental protection. [84]

3.2.4 The Precautionary Principle

In exercising their jurisdiction to protect and preserve the marine environment under UNCLOS States may and should apply the precautionary principle: [85]

States, in accordance with the provisions of the United Nations Convention on the Law of the Sea on protection and preservation of the marine environment, commit themselves, in accordance with their policies, priorities and resources, to prevent, reduce and control degradation of the marine environment so as to maintain and improve its life-support and productive capacities. To this end, it is necessary to:

(a) Apply preventive, precautionary and anticipatory approaches so as to avoid degradation of the marine environment, as well as to reduce the risk of long-term or irreversible adverse effects upon it.

A Chilean naval vessel in the 1994/95 shipment, as a coastal State responsible for its EEZ in the Cape Horn region, has in fact cited the precautionary principle as a primary reason for banning the Pacific Pintail from its EEZ. [86]

3.3 IAEA

3.3.1 IAEA Code The IAEA Statute lays down the authority of the Agency to establish or adopt standards of safety for the protection of health and minimization of danger to life and property. [87] The advisory [88] Code of Practice on the International Transboundary Movement of Radioactive Waste ('IAEA Code') [89] gains any force from incorporation in any legal instrument. [90] Article III(3) of the Code provides that "[i]t is the sovereign right of every State to prohibit the movement of radioactive waste into, from or through its territory."

Territory is not defined, but would logically include territorial waters. The waters in an EEZ are not 'territory' of the coastal States in the strict sense, but the resources in the water are subject to its jurisdiction. The Preamble recites that that "policies and criteria for radiation protection of populations outside national borders from releases of radioactive substances should not be less stringent than those for the population within the country of release," [91] thus supporting an argument that protection

measures outside borders, but within the wider area of jurisdiction, are entitled to be

as stringent as those relating to transport within borders.

The Code incorporates the principles of prior notification and consent. Clause III(5) provides that

Every State should take the appropriate steps necessary to ensure that, subject to the relevant norms of international law, the international transboundary movement of radioactive waste takes place only with the prior notification and consent of the sending, receiving and transit States in accordance with their respective laws and regulations.

Clause III(6) provides for regulation of movement of radioactive waste [92] by "by every State involved" in the movement".

The Code does go some way towards addressing the creation of radioactive waste in that States should take the appropriate steps necessary to minimize the amount of radioactive waste, taking into account social, environmental, technological and economic considerations. [93] Concerned States could take steps to obtain assurances from Japan that Japan is taking necessary steps to minimize radioactive waste and invoke Clause III(11) which requires co-operation at the bilateral, regional and international levels for the purpose of preventing any international transboundary movement of radioactive waste that is not in conformity with the Code. [94]

3.3.2 IAEA Regulations

The Regulations for the Safe Transport of Radioactive Material [95] establish standards associated with the transport of radioactive material and address issues such as packaging and labelling. Multilateral approval is defined to mean approval by the relevant competent authorities both of the country of origin of the design or shipment and of each country through or into which the consignment is to be transported. The terms 'through' and 'into' specifically excludes 'over', so approval and notification requirements do not apply to a country over which material is carried in any aircraft provided there is no scheduled stop in the country. [96] Multilateral approval is required for shipments which do not meet all the applicable requirement of the Regulations. [97]

Practice to date leaves the Agency open to criticism as to the Agency's commitment to its objectives of the promotion of safety standards and minimization of danger to life and property, [98] and reinforce suggestions that the that the IMO rather than the IAEA is the appropriate regulatory body. [99]

3.4 Regulation of Shipping

The INF Code [100] addresses the construction, equipment and operation of ships engaged in the carriage of INF, Pu and HLW. [101] Under the IMO Resolution accompanying the adoption of the INF Code the Marine Safety Committee (MSC) and the Marine Environment Protection Committee (MEPC) are requested "to keep the INF Code under regular review and to amend it, as necessary" [102] and "take into account ... the objectives of paragraph 17.22 of Agenda 21 of UNCED." [103]

Several countries in 1995 asked the IMO for a binding code requiring the prior

notification of voyages, advance consultation on emergency response planning, a clear cut liability regime and a demonstrated ability to salvage lost cargoes. [104] Ireland has additionally requested the restriction and exclusion of certain routes for these shipments, more information in relation to journey and cargoes; and more effective methods of safety planning and inspection. [105] To date such a code has not been agreed but some progress is being made on some issues. [106]

The SOLAS Convention [107] is aimed primarily at preventing accidents threatening passengers or crews of ships. Chapter VII however addresses the carriage of dangerous goods including radioactive materials, primarily through regulations on packaging and stowage. [108] MARPOL 73/78 [109] addresses pollution from merchant ships and enforcement is undertaken principally by the flag State. [110] MARPOL 73/78 incorporates vessel construction and equipment codes in Annex II and addresses labeling, packaging and similar issues in Annex III and MARPOL 73/78 provides sources for international rules and standards for pollution from ships relevant to the Law of the Sea Convention. [111] The 1972 Collision Regulations [112] provide regulations to govern navigation in order to avoid collisions and the STCWS [113] provides regulations governing crews. These conventions will provide some assistance in the form of regulation but their utility is limited with respect to addressing strategic issues relating matters of concern of this paper.

3.4.0.1 Basel Convention

The Basel Convention [114] imposes requirements to reduce hazardous [115] waste movement to a minimum, and so as to protect health and the environment, to provide information about waste movement and their effects, and co-operation with other parties and organizations. [116] The paramount goal is to avoid subjecting one area of the world to risks created by another area, and as part of this goal, to ensure that hazardous wastes are not transported through States' territories without consent. [117]

Under the Basel Convention a transit State [118] may withhold consent to a notice of transit. [119] Transboundary movement of hazardous wastes or other wastes without due notification or consent or which does not conform in a material way with documents is illegal traffic [120], which designation triggers certain requirements to take back or dispose of the waste and should trigger domestic penalties. [121] Where a transit State is a Party, actual written consent to transit must be received. [122] Where a transit State is not a party to the Convention, there is a duty of prior notification. [123]

3.5 Some Recent Developments

3.5.1 IMO A number of meetings have discussed these issues; particularly at Sub-Committee on Safety of Navigation (NAV) of the MSC, NAV-43. [124] The next meeting of the Sub-Committee on Safety of Navigation, NAV-44 is on 20-24 July and Pacific Island states are urged to attend where possible to further these issues.

3.5.1.1 The 1997 NAV-43 Meeting

3.5.1.1.1 Route Planning

The issue of route planning was addressed at NAV-43. Draft Guidelines

recommended during the meeting highlight the importance of general appraisal and planning of the entire intended route prior to departure, and emphasise the need to take note of the emergency response capabilities of coastal States and marine environment protection needs. This would require consultation of the intended voyage and also prior contact with the competent authorities of coastal States along the route. [125]

3.5.1.1.2 Prior Notification

The issue of prior notification was debated. In introducing this topic, the Chair of the Working Group noted that at NAV-42, a majority of delegates opposed prior notification to coastal States for voyages of ships carrying materials subject to the INF Code on the basis that prior notification could endanger the physical protection of INF Code materials, may lead to States trying to veto or prevent the passage of such ships through their territorial sea or EEZ and could establish a precedent so that prior notification could be required for the passage of all classes of vessels. Some delegations also expressed the view in NAV-42 and NAV-43 that if a requirement for such notification is imposed, it should be for all vessels carrying hazardous or polluting cargoes and not just INF Code materials. [126] The Solomon Islands, supported by other states including the Phillippines, [127] Ireland, the Bahamas and New Zealand, observed that prior notification and consultation were essential for emergency response arrangements and for dealing with queries from the public about 'rumoured' transports. Australia and South Africa supported non-mandatory coastal state notification.

Thus a majority of Member States oppose prior notification and consultation, but opinion was divided. [128] However a roadmarker for action by Pacific states was indicated: the paragraphs for inclusion in the report to the Assembly [129] state that, in order to facilitate further work in this area, the Sub-Committee requested member Governments that support this concept to submit concrete proposals.

3.5.1.1.3 Shore-Based Tracking

The issue of shore based tracking of vessels, while discussed at NAV-42, was not discussed at NAV-43. [130]

3.5.1.2 The 1998 MEPC Meeting

The MEPC in March this year [131] discussed the issue of prior notification for ships carrying substances covered by the INF Code. Again the delegations were split, with some delegations supporting the idea of prior notification, while others expressed concern that it may lead to some coastal states vetoing the passage of INF cargoes or interference by terrorists. It was agreed to keep the issue on the agenda for further discussion.

The legitimacy of the objection to prior notification being that coastal states may veto the passage must be seriously questioned. Underlying that objection is the implicit fear that prior notification will amount to a requirement of prior consent. Both are possible options to address the problem. However to reject one option because it may lead to another, or be used for another purpose, cannot be said to adequately address the legitimacy of notification in itself.

Draft amendments to SOLAS Chapter VII to make the INF Code mandatory are to be

formally adopted by MSC 71 in 1999, following concurrence by the MEPC. The concept of prior notification is not currently included in the proposed mandatory INF Code.

The MEPC discussed a proposal that there should be a specific requirement in the INF Code for a shore-based emergency response plan, but the consensus was that there was no such need at this time. There are already requirements under SOLAS, in the International Safety Management (ISM) Code, for a shipowner or operator to establish emergency response plans.

3.5.2 The United Nations

Last year the United Nations Special Session of the General Assembly, adopted a programme for the further implementation of Agenda 21. The report noted that

"The storage, transportation, transboundary movement and disposal of radioactive wastes should be guided by all the principles of the Rio Declaration on Environment and Development and by Agenda 21. States that generate radioactive wastes have a responsibility to ensure their safe storage and disposal. In general, radioactive wastes should be disposed of in the territory of the State in which they are generated as far as is compatible with the safety of the management of such material." [132]

The report went on to state that the management of radioactive wastes should be undertaken in a manner consistent with international law, including the provisions of relevant international and regional conventions, and with internationally accepted standards. The precautionary principle was specifically invoked to ensure that storage or disposal of radioactive waste poses no unacceptable risk to people or the marine environment and does not interfere with other legitimate uses of the sea. A call for further action by the international community was made address the need for enhancing awareness of the importance of the safe management of radioactive wastes, and to ensure the prevention of incidents and accidents involving the uncontrolled release of such wastes.

Paragraph 60 [133] stated that

"[t]ransportation of irradiated nuclear fuel (INF) and high-level waste by sea should be guided by the INF Code, which should be considered for development into a mandatory instrument. The issue of transboundary environmental effects of activities related to the management of radioactive waste and the question of prior notification, relevant information and consultation with States that could potentially be affected by such effects, should be further addressed within the appropriate forums."

Thus the Report specifically contemplated regulation by regional conventions as well as development of regulation within the IMO.

3.5.3 Law of the Sea Convention

A number of states have lodged declarations to the Law of the Sea Convention under Article 310 on the issue of ultrahazardous nuclear transports. One the one hand a number of states, mainly non-nuclear states, consider that Articles 22 and 23 of the Convention presume the existence of conventions regulating such transport and absent such regulations or authorization can be permitted. On the other hand a number of

states, mainly nuclear states, demand the right of free navigation and dispute the

obligations of prior consent or even notification. [134] Thus it can be seen that there is a sharp divergence of opinion particularly on the issue of prior permission. It may be seen as unfortunate that many of the declarations conflate the issues of prior notification and prior informed consent. These issues are certainly distinguishable and developing international law under specific treaties as well as state practice supports a requirement for prior notification and consultation where potential consequences for a coastal state's environment are particularly serious.

3.5.4 Communications to the IAEA

In February 1997 Brazil, Argentina, Chile and Uruguay sent a communication to the IAEA [135] declaring Their intention to adopt, in waters under their jurisdiction, measures recognized by international law to protect the health of their inhabitants and their marine ecosystems, the need to strengthen regulations governing the transport of radioactive waste and spent nuclear fuel [136] and their support for the work on the revision and negotiation of the conventions on civil liability for nuclear damage, the safe management of radioactive waste and the safety of spent nuclear fuel that is taking place within the IAEA and the revision of the code on the carriage of irradiated nuclear fuel (INF Code), which should be made mandatory.

This declaration thus very clearly states that parameters of the demanded action and leaves open the door to unilateral action in the meantime.

3.6 Pacific Regional Law

3.6.1 Sprep Convention Relevant Pacific law relating to the transportation of hazardous waste lies in the SPREP Convention [137] and its two protocols [138] and the Waigani Convention. [139] Waigani does not have specific provisions applicable to radioactive waste and, in contrast to the Bamako Convention, radioactive waste is specifically excluded from many provisions. [140] The Emergency Response protocol in particular is relevant to emergency response and notification in matters such as contingency plans, [141] the exchange of information [142] and the reporting of incidents [143] but given the non-party status of Japan and particularly the United Kingdom, the flag state, is limited.

4. Proposals for Reform and Strategies

to Address Concerns 4.1 Multilateral Actions and Necessary Reforms 4.1.1 International Fori This paper has outlined some relevant international fori, notably the IAEA and the IMO. The IAEA Code is voluntary and in light of concerns outlined in this paper is defective in important respects. The Code fudges the issue of applicability to EEZs, and its provisions of consultation need clarification as well as enforcement. Its provisions requiring notification and consent for transit States need to be clarified in

their application to territorial waters and EEZs in order to make effective its central

provision on the sovereign right of transit States to prohibit the movement of radioactive waste into from or through its territory in order for the principle of informed consent to have real efficacy. Further procedures need to be established in order to enable effective notification and consultation with affected States.

As far as the INF code coes, issues such as voyage planning, information about routes, notification and the obligation to inform coastal countries about the emergency plans in case of accidents, a commitment to rescue radioactive waste in case of accidents issues of liability are a long way from resolution. The question of liability has been particularly elusive. [144]

4.1.2 Dispute Resolution Procedures under the Law of the Sea Convention

Disputes involving the interpretation or application of the Convention between countries claiming navigational freedoms and those claiming the right to protect their coastal environment are subject to the compulsory dispute-resolution procedures in the Law of the Sea Convention. [145] Each party is to indicate whether disputes are to

be resolved by the International Tribunal for the Law of the Sea, which was established in November 1986 in Hamburg, Germany (ITLOS), [146] the International Court of Justice, a five-member arbitral panel consisting of persons experienced in maritime affairs or a special five-member "special arbitral tribunal". [147]

Any coastal nation that has ratified the Convention can therefore bring a claim against Japan, the United Kingdom and/or France alleging that their actions related to the transport of ultrahazardous radioactive cargoes is in contravention of the requirements of the Convention. Because the Convention explicitly requires the preparation of an environmental impact assessment and appropriate consultations and contingency planning, such a claim brought by a nation whose EEZ has been traversed by a nuclear transport would be properly brought and would usefully articulate these concerns. Provisional measures can be indicated to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision. [148] Thus any coastal State could ask an arbitral tribunal or any body to which all parties have been consented to indicate provisional measures to prevent passage through EEZ and territorial waters.

4.1.3 Regional

Ultrahazardous radioactive shipments are appropriate to address on a regional basis. This has been done to varying degrees in the European Union, [149] Africa [150] and the Mediterranean. [151] The Mediterranean Protocol in particular implements the concept of prior notification of hazardous wastes through the territorial seas as well as requires compliance with domestic legislation. Appropriate measures in accordance with international law with respect to territorial seas are left to the transit State.

4.2 Options for Protection and Reform

4.2.1 Ultrahazardous Radioactive Transports 4.2.1.1 Unilateral Actions

A number of States have taken unilateral action to address ultrahazardous radioactive

shipments, ranging from expressions of concern and protest notes to the banning of shipments through territorial waters and EEZs and the enforcement of such bans using military vessels. [152] Conversely, the United States and former USSR jointly declared in 1989 their opposition to the requirement of prior notification or authorization regardless of cargo, armament or means of propulsion. [153]

Over 45 countries expressed concern at potential for damage and many coastal States banned the Akatsuki Maru from territorial waters in 1992. [154] National and regional protests led to the vessel avoiding a route through the Caribbean. In 1995, a number of states banned the Pacific Pintail from their EEZs. [155] The vessel acceded to coastal State demands to avoid EEZs in a number of cases, and in the case of Chile, the vessel changed course south and left the EEZ following a confrontation with Chilean naval forces. [156] Similarly, in 1997, a number of states banned the Pacific Teal from their EEZs. [157]

The cumulative effect of these protests is to develop a new understanding of the legal regime that governs shipments of radioactive wastes. A substantial number of important concerned nations have expressed their view that international law does not permit countries to transport ultrahazardous cargoes through their territorial seas and EEZs without consultations and the prior establishment of mutually acceptable arrangements. A new clarification of international law on this topic is thus emerging. National legislation governing a national response to these shipments would assist in this process.

4.2.1.2 The SPREP Treaty

In the Pacific, the 1986 Convention for the Protection of the Natural Resources and Environment of the South Pacific Region, (SPREP ), [158] provides the most appropriate framework for addressing the environmental concerns raised by the transport of radioactive cargoes in the Pacific. The Treaty commits its member nations to doing everything possible to reduce and control pollution, [159] requires environmental impact assessments, [160] and requires the parties to cooperate to formulate rules to govern liability and compensation. [161] The Secretariat for this treaty is now based here in Apia, Western Samoa, and its staff and meetings can provide a mechanism for bringing focus to the environmental concerns of the region. [162]

The SPREP Treaty definition of the Convention Area covers EEZs as well as areas of high seas enclosed by EEZs. [163] Parties are to endeavour to conclude agreements for the protection, development and management of the marine and coastal environment of the Convention Area [164] as well as to endeavour, either individually or jointly, to take all appropriate measures in conformity with international law and in accordance with SPREP and those Protocols in force to which they are party to prevent, reduce and control pollution of the Convention Area. [165] SPREP thus provides a suitable framework for addressing ultrahazardous transports in the region and particularly through EEZs. The parties to the SPREP Treaty could thus consider adopting a Protocol similar to the Mediterranean Protocol. [166]

Any new protocol should require:

A. Prior notification of routes and times and adequate consultation with the coastal or

island State occurs prior to the shipment, leading to a requirement of informed consent by all concerned States. Consultation must include full discussion of environmental regulations, safety measures, emergency contingency plans, and alternative routes.

B. A full environmental impact assessment, conducted by an interdisciplinary group with public input, preceding any shipment of ultrahazardous cargo.

C. Provisions on liability, and funds to cover possible accident scenarios be established.

D. Systems for safety planning and inspection and emergency response.

E. Implementation of information exchange and monitoring systems

The structure of the South Pacific Nuclear Free Zone Treaty (SPNFZ treaty) [167] which prohibits the dumping of radioactive wastes anywhere in the Pacific nuclear free zone [168] as well as the dumping by anyone else within their territorial sea, [169] and which applies to the EEZs of parties, [170] could assist by way of example. Three Protocols prepared together with the Treaty [171] were intended to allow nuclear powers to undertake to sign onto the Treaties provisions at a later date, thus not jeopardizing the integrity of the treaty by compromise whilst leaving the door open to other parties. A similar arrangement may be suitable for the problem of radioactive nuclear transports.

A suggested Protocol, drafted by the author and Professor Jon Van Dyke of the University of Hawaii Law School, is attached to this paper.

5. Conclusion and Recommendations

Concern has been expressed that if these issues are not addressed promptly by Pacific nations then the Pacific will become the path of least resistance. It is worth noting that the legal questions surrounding plutonium transports are not isolated. The issues of an EIS, consultation, liability and pollution from vessels arise with respect to the planned at-sea rocket launches commencing later this year. [172] It is suggested that Pacific states should consider addressing these issues on an international level by attending the relevant IMO and IAEA meetings as well as on a regional basis.

1. Pacific nations should bring pressure at the IMO to develop a comprehensive and binding legal regime governing the shipments of radioactive wastes. This regime must include, at a minimum, the following elements:

A. The obligation to notify and fully consult well prior to any shipments of high-level radioactive wastes through the territorial sea or EEZ of any other nation. [173] Consultations must be held in good faith, and must include discussions regarding alternative routing and emergency contingency planning.

B. The requirement to prepare an environmental impact assessment prior to such shipments. The process of preparing the assessment must be interdisciplinary and must include public input.

C. The exclusion of certain specific hazardous routes

D. Detailed provisions on accident and emergency procedures. These procedures must include access to appropriate ports, availability of tugboats and firefighting equipment, and plans for retrieval in the event of a sinking.

It is suggested that Pacific states could submit concrete proposals to the IMO for notification and consultation protocols as invited in NAV-43. [174]

2. Countries should work through fori such as the IAEA and the IMO to develop a binding liability and compensation regime applicable to these shipments. Such a regime must not only clearly include environmental and consequential damage on a strict liability basis to a realistic level but must spell out the conditions of liability in these circumstances, and should also include the creation or identification of a compensation fund to pay any victims of accidents and provide an international tribunal to hear claims.

3. All concerned nations should also work to amend existing regional treaties to address these same issues. In the South Pacific, the island nations should act in a united fashion through the Forum and the South Pacific Regional Environmental Programme to adopt a new protocol that would strengthen their regional documents governing the marine environment of their region.

3. Concerned nations could bring a claim against shipping states using the dispute resolution procedures of the Law of the Sea Convention. Such a claim could for instance argue that the shipments of ultrahazardous high-level radioactive wastes violate the Convention's requirements obligating the shipping nations to prepare an full and comprehensive environmental impact assessment and notify and consult with affected nations.

4. Until this new regime is fully developed, affected nations can take unilateral or regionally-coordinated action to protect themselves against these shipments, including taking measures to keep the ships out of their territorial seas and EEZs.

Footnotes

[1] LL.B. (Hons.), LL.M. Email: duncanc@globelaw.com. Many references in this paper are also linked on the web site http://www.globelaw.com. This paper draws heavily on a paper by the author together with Professor Jon van Dyke at the University of Hawaii Law School, entitled The International Law Relating to Shipments of Ultrahazardous Radioactive Materials and Strategies and Options to Protect the Marine Environment prepared for briefing by Greenpeace Pacific in February 1997. Any errors are those of the author alone.

[2] See Nuclear Tests Cases (Australia v. France) (Interim Measures) ICJ Rep. 1974 253 and Nuclear Tests Cases (New Zealand v France) ICJ Rep. 1974 257, and the South Pacific Nuclear Free Zone Treaty, adopted August 6, 1985, entered into force 11 December 1986, at 24 I.L.M. 1440 ('SPNFZ').

[3] Request for an examination of the situation in accordance with paragraph 63 of the

Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) case.

See a history of the New Zealand case by the New Zealand government, a summary of legal argument and the Attorney-General's argument.

[4] Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific, adopted at Wellington 24 November 1989, entered into force 17 May 1991, in 29 I.L.M. (1990), 1454. See Hey, E., et al. The Regulation of Driftnet Fishing on the High Seas: Legal Issues. Rome: Food and Agriculture Organization of the United Nations (FAO), 1991.

[5] A definition of ultrahazardous radioactive waste can build upon the definition of 'harmful substance' in MARPOL 73/78 Article 2, which means "any substance which, if introduced to the sea, is liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea, and includes any substance subject to control by the present Convention". See note 109, infra on page 15.

[6] The cycle works as follows: Japan ships irradiated nuclear fuel removed from its nuclear reactors to reprocessing plants in Britain and France where plutonium is chemically separated from other radioactive waste materials. Plutonium and nuclear waste is then shipped back to Japan: plutonium as plutonium oxide, like that transported in 1992/93 on board the Japanese-flagged Akatsuki Maru, or as fabricated mixed plutonium/uranium oxide fuel (MOX), or as high level nuclear waste, which is vitrified or glassified and is moved in the form of highly radioactive glass blocks of some 1,000 pounds each. This is the waste which was first transported on the UK-flagged Pacific Pintail in 1995 and again on the UK-flagged Pacific Teal in the beginning of 1997. A person standing within one meter of an unshielded block of this waste would receive a mortal dose of radiation in less than sixty seconds. See further details by Nuclear Control Institute and E. S. Lyman, ed., "Safety Issues in the Sea Transport of Vitrified High-Level Radioactive Wastes to Japan", (1994), 14.

[7] Texts of 1997 protests and statements of Argentina, Brazil, Chile and Uruguay, the Cook Islands, Ireland, Kiribati, Malaysia, Mauritius, Micronesia, Nauru, New Zealand, Papua New Guinea, South Africa, Caribbean Commufnity (CARICOM), Caribbean High Commissioners, and the South Pacific Forum courtesy of Nuclear

Control Institute. High level waste being shipped contain isotopes which could contaminate marine or terrestrial life for millennia. Proponents claim that transport ships are reinforced with a specially designed double hull and that vessels would be unlikely to sink, that transport routes are selected to minimise the risk of a disaster and that there are contingency plans to cope with accidents. Opponents counter that the canisters holding the waste are not as leakproof as claimed, particularly in case of fire, that emergency plans are inadequate and that accidents are always possible. The shipments have prompted concern as threats to the marine environment and populations of coastal States in case of a mishap and demands for more stringent safety requirements from en route States. [8]

United Nations Convention on the Law of the Sea, concluded at Montego Bay, 10 December 1982, entered into force 16 November 1994, in 21 I.L.M. 1261 (1982) and UN gopher. Most countries and commentators recognize that most of the provisions

in the Law of the Sea Convention codify obligatory customary international law

principles, and hence are binding even on countries that have not yet ratified the Convention. [9] See note 107, infra on page 15.

[10] See note 109, infra on page 15.

[11] See note 35, infra on page 6.

[12] See note 139, infra on page 21.

[13] Law of the Sea Convention Article 221

[14] Declaration of the United Nations Conference on the Human Environment, U.N. Doc. A/CONF.48/14, 7, in 11 I.L.M. (1972) 1416, 1420. See generally Sohn, "The Stockholm Declaration on the Human Environment," 15 Harv. J. Int'l. L. (1973) 423 and more recently Akehurst, "International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law", N.Y.J Int'l. L. (1985), 3.

[15] See also Principle 2 of the 1992 Rio Declaration on Environment and Development, and Restatement (Third) of Foreign Relations Law, Section 601 (1987). Philippe Sands in Principles of International Environmental Law I (1995), 186 concludes that taken together Principle 21 and Principle 2 "establish the basic obligation underlying environmental law and the source of its further elaboration in rules of greater specificity." The International Court of Justice has referred to "every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States," Corfu Channel Case (United Kingdom v. Albania) [1949]I.C.J. Reports 4, and the principle is also the central principle relied upon in the Trail Smelter Arbitration (United States v. Canada), 3 R. Int'l Arb. Awards 1905, 1938 (1941) holding that "no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another".

[16] Press Statement by Deputy Minister PR Mokaba, January 31 1997.

[17] See particularly the joint dissenting opinion of Judges Onyeama, Dillad, Jimenez de Arechega and Sir Humphrey Waldock in the Nuclear Test Cases discussing obligations erga omnes at ICJ Rep. 1974, 369-70.

[18] Cf the earlier Fur Seals Arbitration 1 Moore's Int. Arb. Awards 755 (1893) which likewise involved the right of states to regulate fur seal takings in areas beyond national jurisdiction. In a case involving nuclear radioactivity, arguments of obligations erga omnes are probably unnecessary where radiation finds its way through the ecosystem.

[19] Principle 17 states that an "environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority. 31 ILM (1992), 874.

[20] Law of the Sea Convention Article 206

[21] 1986 Convention for the Protection of the Natural Resources and the Environment of the South Pacific Region adopted at Nouméa November 24, 1986, entered into force 22 August 1990, 26 I.L.M. 38 (1987) ('SPREP Convention'). Article

16(2). France, the United States and the United Kingdom are a party to the SPREP

Convention, and Japan has been an observer at many of its meetings. See discussion in B. Cicin-Sain and R. W. Knecht, "The Emergence of a Regional Ocean Regime in the South Pacific", 16 Ecology Law Quarterly (1989),171-215, 176. France is a contracting party to the Convention.

[22] Agenda 21 calls on States not to promote or allow the storage or disposal of high level, intermediate level or low level radioactive wastes near the marine environment unless they determine that scientific evidence shows that such storage or disposal poses no unacceptable risk to people or the marine environment. Agenda 21 22.5(c).

[23] Rio Declaration Principle 19, note 15 supra: States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect and shall consult with those States at an early stage and in good faith.

See U. Beyerlin and T. Barsche, "Transboundary Environmental Co-operation: Prior information, consultation, environmental impact assessment. Yearbook of International Environmental Law (1993) 105-111. See Sands, note 15 supra, 605-608, concluding that "[t]he obligation to consult in such situations is now widely recognized by customary international law, and the failure to engage in consultation may violate the principles of good faith and international co-operation under international law."

[24] See Restatement (Third) of Foreign Relations Law, Section 601, Comment e (1987). [25]

As to the obligation to notify under customary international law as an aspect of the principle of good faith, see Lammers, Hague Academy of International Law, Centre for Studies and Research in International Law and International Relations, in Transfrontier Pollution and International Law (1986), 110.

[26] See note 15, supra on page 3.

[27] Lac Lanoux Arbitration, 24 I.L.R. 101, 128 (1957)

[28] Law of the Sea Convention Article 198.

[29] The Convention on Early Notification of a Nuclear Accident, IAEA Doc. INFCIRC/335, opened for signature at Vienna 26 September 1986, entered into force 27 October 1986. ('Early Notification Convention'), in 25 I.L.M. 1370 (1986).. Japan, the United Kingdom and France are party to the convention.

[30] Early Notification Convention, Articles 1, 2

[31] Early Notification Convention, Article 1(2)(d)

[32] The Japanese government in 1992 and 1995 refused to reveal the intended route of the plutonium and high level waste vessels and stated that the Japanese and British governments will continue to keep the route secret, even from countries through whose territorial waters or EEZs the vessel may travel. For the 1996/1997 shipment the Japanese government announced that the route would be through the Cape of Good Hope/Southwest Pacific and that the arrival would be in mid-March. Authorities

of the States along the route were to be informed confidentially on 23 December of

the passage of the vessel through their region and there was to be an information campaign in the countries along the chosen route, according to a French government memo leaked by Greenpeace. See Greenpeace press releases.

[33] South Africa Minister of Environmental Affairs and Tourism Media Release 4 February 1997, stating that the vessel sailed within 90 nautical miles of the coastline, despite undertakings given to the ministry in December by a briefing team that the vessel would sail well clear of South Africa's EEZ.

[34] OECD Council Decision - Recommendation C(86) 64 (Final), Principle 1, in OECD and the Environment (1986)

[35] Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, UNEP Doc. T/BSL/000, 28 I.L.M. 657, signed at Basel 22 March 1989, entered into force 5 May 1992 ("Basel Convention") Article 6(1) and see page 15.

[36] See page 13.

[37] Rio Declaration Principle 18, note 15 supra.

[38] See Philippe Sands, note 15 supra, 194-195, citing particularly the Stockholm Declaration Principles 6,7,15,18 and 24, the 1978 UNEP Draft Principles, Principle 1 and the 1982 World Charter for Nature, together with a growing network of specific environmental conventions, as well as the Trail Smelter case (note 15 supra) and the Lac Lanoux Arbitration (note 27 supra).

[39] IAEA Guidelines on Reportable Events, Integrated Planning and Information Exchange in a Transboundary Release of Radioactive Materials (IAEA Doc. INFCIRC/321.

[40] See note 29 supra on page 5.

[41] SPREP Article 15(1)

[42] SPREP Article 15(2) also requires immediate notification of affected countries and territories in imminent danger of pollution.

[43] Present IAEA regulations and working groups require preparation for only a 200M immersion of lost flasks and exclude plans for recovery from other than the continental shelf. See further discussion in note 99, infra on page 14.

[44] This requirement appears to have been recognized as a principle of international law in the Trail Smelter Arbitration (note 15, 1938) and the Corfu Channel Case (note 15).

[45] Paris Convention on Third Party Liability in the Field of Nuclear Energy adopted at Paris on 29 July 1960, entered into force 1 April 1968, and its Additional Protocol of 28 January 1964. "Nuclear installation" is defined in Article 1(a)(ii) to mean facilities for the storage of nuclear substances other than storage incidental to the carriage of such substances. For the equivalent definition in the Vienna Convention see footnote 46.

[46] Vienna Convention on Civil Liability for Nuclear Damage, adopted at Vienna on

21 May 1963, entered into force 12 November 1977. The United Kingdom is a Party while France and Japan are not. "Nuclear installation" is defined in Article 1(j) to mean, apart from nuclear reactors and factories using nuclear fuel for the production of nuclear material or processing of nuclear material, "(iii) any facility where nuclear material is stored, other than storage incidental to the carriage of such material." Thus nuclear transports would not qualify as 'installations' under the Vienna Convention. This is mirrored by the Paris Convention, note 45 supra, and is supported by the language of the Joint Protocol, Article III.3.

[47] Convention Supplementary to the Paris Convention of 29th July 1960 on Third Party Liability in the Field of Nuclear Energy, 31 January 1963 (the "Brussels Convention"). The Brussels Convention supplements the very low liability levels in the Paris convention (SDR 5-15 million to SDR or US$7.5 million) to SDR 175 million or its equivalent of US $250 million for operator's liability plus funds from installation state, and contributions from all parties to $US 187 million (SDR 125 million).

[48] Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention. IAEA Doc. INFCIR/402. France and the United Kingdom are Parties. . In an effort to address the lack of membership, the Joint Protocol allows victims in States party to either Convention and the Joint Protocol to bring claims against another such State in which an operator is liable.

[49] That is, the installation from which the material originated or to which it is sent, according to the rules in Article II.1(b) of the Vienna Convention and Article 4(a) and (b) of the Paris Convention and Article 4(a) and (b) of the Paris Convention: Joint Protocol Article III.3.

[50] The Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material, concluded 17 December 1971, entered into force 15 July 1975 ('Maritime Liability Convention') notes that the Paris and Vienna Conventions provide for liability for the operator of a nuclear installation in the case of damage caused by a nuclear incident occurring in the course of maritime carriage of nuclear material covered by such Conventions. See Vienna Convention Article II(1) providing for liability for nuclear damage caused by a nuclear incident involving (b) nuclear material coming from or originating in a nuclear installation, and (c) involving nuclear material sent to a nuclear installation, with several provisos. The Convention on the Liability of Nuclear Ships, Brussels 25 May 1962 ('Nuclear Ship Liability Convention') applies only to ships equipped with a nuclear power plant. In such cases provides for absolute liability for the operator of a nuclear ship for a nuclear incident involving the nuclear fuel of or radioactive products or waste produced in such ship (Article II). There is a maximum of 1,500 million francs per incident, exclusive of interests and legal costs under Article III. The Convention requires the operator to maintain insurance and a guarantee by the licensing state. The Convention on the Physical Protection of Nuclear Material, IAEA Doc. INFCIRC/274/Rev.1 adopted at Vienna on 26 October 1979, entered into force 8 February 1987, obliges States to ensure during international nuclear transport the protection of nuclear material within their territory or on board their ships or aircraft and includes provisions on international transport, primarily focusing on creating criminal offenses and jurisdiction to prosecute such offenses.

[51] Provided the national law is in all respects as favourable to persons who may

suffer damage as either the Paris or the Vienna Convention.

[52] For instance, global consequences of a nuclear accident are not easily covered, the definition of damage needs to include clearly damage to the environment and consequential losses (such as fisheries) including those outside the EEZ, an absolute liability rule needs to be clearly applies, an international claims tribunal needs to be considered to avoid victims needing to struggle with national law difficulties before the installation state's courts, liability for other paties such as suppliers or financiers as well as operators needs to be addressed, liability limitations need to be removed and supplementary funding protocols need to be addressed. See Philippe Sands, "The International Law of Liability for Transboundary Nuclear Pollution: The Existing Regime, its Deficiencies and a Framework for a New Regime," Report for Greenpeace International, August 1989 and see a report by Greenpeace International prepared for the 9th Session of the IAEA Standing Committee on Nuclear Liability February 1994.

[53] The MEPC noted (MEPC 40/15 20 June 1997 at § 9) that the IAEA should be given the time to complete is work and it would not be a useful employment of the Legal Committee's time to work ont he same issues.

[54] For instance, states becoming or remaining Party to the original Vienna Convention may thereby not gain the improvements being introduced by the new Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage adopted on 12 September 1997 (altering the definition of damage, increasing liability limits and extending time limitation periods) (Signatories as at 21 June 1998 were Argentina, Hungary, Indonesia, Italy, Lebanon, Lithuania, Morocco, Peru, Philippines, Poland, Romania, and Ukraine) and the new Convention on Supplementary Compensation for Nuclear Damage, adopted on 12 September 1997, (signatories as at 21 June 1998 were Argentina, Australia, Indonesia, Italy, Lebanon, Lithuania, Morocco, Peru, Philippines, Romania, Ukraine, United States of America). It may in some cases be best to join the latter Convention alone provided their national legislation is compatible. The new limits in the Convention on Supplementary Funding are US 450 million (being the limit of the new Vienna Convention limit). Note that compensation to victims in non contracting Partis may be excluded in the Convention on Supplementary Funding.

[55] Law of the Sea Convention Article 194(2) See in general also Article 194(1): States are required to take measures that are necessary to prevent, reduce and control pollution of the marine environment from any source, and they shall endeavour to harmonize their policies in this connection.

[56] Law of the Sea Convention Article 194(3)(b) The measures taken in accordance with Part XII shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life: Article 194(5). [57]

For a historical perspective see R. P. Anand, "Changing Concepts of Freedom of the Seas: A Historical Perspective", an address to a seminar on freedom for the seas, in J. Van Dyke, D. Zaelke and G. Hewison, Freedom for the Seas in the 21st Century: Ocean Governance and Environmental Harmony (1993), 72. Hersch Lauterpacht in 1950 emphasized that the freedom of the navigation must be viewed against the

reasonable requirements of economic life and scientific progress. H. Lauterpacht,

"Sovereignty Over Submarine Areas", (1950) 27 BYIL 376.

[58] Law of the Sea Convention Article 87

[59] Law of the Sea Convention Article 56(1). In exercising its rights and performing its duties under the Convention in the EEZ, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention: Artidcle 56(2).

[60] The test for innocence is objective, requiring an actual act, rather than intent. See the Corfu Channel case (note 15) and Japan v. Kulikov [1954] 21 I.L.R. 105.

[61] Law of the Sea Convention Article 19(1)

[62] It should be noted that coastal States may take necessary steps in its territorial sea to prevent non-innocent passage. Law of the Sea Convention Article 25(1)

[63] See 9 ILM 543 for text of the bill which was later passed into force.

[64] See 9 ILM 607, 610. Canada stated that traditional principles of international law concerning pollution of the sea are based in the main on ensuring freedom of navigation to shipping States which are now engaged in the large scale carriage of oil and other potential pollutants. Such traditional concepts are of little or no relevance anywhere in the world if they can be cited as precluding action by a coastal State to protect its environment. It should be noted that this was over twenty years ago and following the Rio declaration and the entry into force of UNCLOS the rights and duties of coastal states to protect the environment have been further extended.

[65] Act No. 33 of 1981, assented to on 14 April 1981, entered into force 5 February 1984 ('Australian Protection of the Sea Act). See Michael W. D. White, Marine Pollution Laws of the Australasian Region (Federation Press, 1994), note 84 ff.

[66] International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, Nov 29 1969, 26 U.S.T. 765, T.I.A.S. No. 8065, 9 I.L.M. 25 ('Intervention Convention) and Protocol Relating to Intervention on the High Seas in Cases of Substances Other than Oil, Nov. 2 1973, T.I.A.S. No. 10561, 13 I.L.M. 605 (1973).

[67] Australian Protection of the Sea Act s 8(1) Powers include powers to sink, salvage, repair, remove or otherwise deal with the ship and contents, and the Minister may give directions to the owner, master or salvor in relation to the vessel: s 11-17.

[68] Australian Protection of the Sea Act s 9(1) giving effect to the 1973 Protocol. 1973 Protocol Article 1(2) defines other substances to include substances in an annex and substances "which are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea."

[69] Law of the Sea Convention Article 19(1)

[70] Law of the Sea Convention Article 24(1) provides inter alia that coastal States may not impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage; or discriminate in form or in fact

against the ships of any State or against ships carrying cargoes to, from or on behalf

of any State.

[71] Law of the Sea Convention Article 21(1)

[72] Whilst some flag States may argue that this provision would by implication permit passage, it must be noted that this provision does not in itself render passage innocent which is otherwise non-innocent for reasons under Article 19. Article 23 simply provides when there is innocent passage, the indicated measures apply.

[73] See discussion of the IAEA Code at page 12. While voluntary the Code can be seen as a measure established by international agreement for some purposes.

[74] See discussion on page 13.

[75] Law of the Sea Convention Article 22(2)

[76] See discussion in D. Attard, The Exclusive Economic Zone in International Law (1987).

[77] Article 55 establishes a specific legal regime and Article 56 lays down rights, jurisdiction and duties of the coastal State whilst Article 58 lays down the rights and duties of other States in the EEZ.

[78] Law of the Sea Convention Article 58(1)

[79] Law of the Sea Convention Article 58(3).

[80] Law of the Sea Convention Article 56(1)(b)(iii)

[81] Law of the Sea Convention Article 56(2)

[82] Law of the Sea Convention Article 56(1)(a)

[83] D. Attard, note 76 supra, 94.

[84] D.R. Rothwell, "Navigational Rights and Freedoms in the Asia Pacific following Entry into Force of the Law of the Sea Convention", (1995) 35 Virginia Journal of International Law 487, 591.

[85] Agenda 21, Chapter 17, 17.22.

[86] Transcript of Radiotelephone conversation of March 22 1994. Coastal States have the specific right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-

covered areas within the EEZ, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance: Law of the Sea Convention Article 234. This provision could strengthen Chile and Argentina's claim to ban highly radioactive nuclear carriers from their EEZs.

[87] IAEA Statute, Article III. See discussion in W. Birnie and A. Boyle, International Law and the Environment (1992), 348-350.

[88] IAEA Code Clause I

[89] Code of Practice on the International Transboundary Movement of Radioactive Waste as Adopted by the General Conference GC (XXXIV)/RRES/530 of 21 September 1990. 30 fI.L.M. 557 (1991).

[90] The Code additionally provides that every State should take appropriate steps necessary, including the adoption of laws and regulations, to ensure that the international transboundary movement of radioactive waste is carried out in accordance with the Code: IAEA Code Clause III(9).

[91] IAEA Code Preamble (vi)

[92] However radioactive waste is defined in Article II to mean "any material that contains or is contaminated with radionuclides at concentrations or radioactivity levels greater than the "exempt quantities" established by the competent authorities and for which no use is foreseen." The proviso limiting its application to radioactive material "for which no use is foreseen", leaves a large loophole in the Code in that it fails adequately to take into account the processes for reprocessing nuclear waste, where the need to control waste is the same regardless of whether a use for waste is actually foreseen.

[93] IAEA Code Clause III.2

[94] The Basel Conference has asked for the harmonization of procedure of the Basel convention and the IAEA Code of Practice. The Code affirms the general principle of the Basel Convention objectives, viz. the sovereign right of every State to prohibit the movement of wastes into, from or through its territory.

[95] The Regulations for the Safe Transport of Radioactive Material IAEA Safety Series No. 6, 1985 Edition (as amended 1990). This has since been amended in 1996.

[96] IAEA Regulations I.113. However the ICAO process involves powers beyond those delineated by the IAEA or IMO regulations. For instance, under ICAO regulations a State may file a state variation regarding the transport of radioactive materials into, out of or over their territory. Such variations have been filed and frequently require prior notification, consultation and permission.

[97] IAEA Regulations 2.211

[98] See note 87, supra on page 12.

[99] Minutes from a 1996 working group concluded that "the issue of locating and identifying sunken ships or flasks, and the need to salvage the ship or flasks is not only a technical, but ...is also a political and economic issue. From a radiological standpoint, the 200M immersion test was imposed to facilitate the recovery of irradiated nuclear fuel flasks from the continental shelf; otherwise...sea recovery of lower radioactive material packages or of packages of any sort at greater depths, was not justified." Annex XV - Report of Working Group 3 - Sea Mode, 4-8 November 1996, Working Paper No. 35, Rev. 1, IAEA Doc. AG-940 ('Working Group 3 Minutes'), 80-81. The minutes identify the issue as being the responsibility of the IMO. The notes acknowledge that "if a large irradiated fuel package were to be lost on the continental shelf, some large exposures could result." The MEPC of the IMO

stated that being able to retrieve packages was an important requirement for

preventing damage and that it was "unacceptable to assume that a package lost in more than 200 metres depth at sea did not present a hazard and each incident should be assessed before deciding on the action to be taken": MEPC 40/15 20 June 1997 §2b)(ix)(1).

[100] The IMO Code for the Safe Carriage of Irradiated Nuclear Fuel (INF), Plutonium (Pu) and High-Level Radioactive Wastes (HLW) in Flasks on Board Ships ('INF Code'), IMO Resolution A 18/ Res. 748, Annex, adopted by the 18th Assembly of the International Maritime Organization on 4 November 1993.

[101] The INF code provides that ships carrying these materials should comply with the requirements of SOLAS 1974 and additional applicable requirements concerning damage stability, fire protection, temperature control of cargo spaces, structural considerations, cargo securing arrangements, electrical supplies, radiological protection equipment and management, training and shipboard emergency plans. The INF Code permits the carriage on passenger ships, ferries and standard cargo vessels of INF or HLW with an aggregate radioactivity up to 2,000,000 TBq and plutonium with an aggregate radioactivity up to than 200,000 Tbq: See INF Code § 4 and see Table 1 of the INF Code in connection with the Code's § 3. Greenpeace notes that 2,000,000 TBq radioactive limit is a quantity of radioactivity as much as twice as large as was released during the Chernobyl disaster. See Greenpeace, Transport of Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes by Sea. Prepared for the 18th Regular Session of the Assembly of the IMO, 1993, 3, referring to an IAEA report.

[102] IMO Resolution A. 748 (18) adopted on 4 November 1993, 3 (a).

[103] IMO Resolution A. 748 (18), 3 (b). Paragraph 17.22 of Agenda 21 speaks of the necessity of precautionary approaches in the marine. See the discussion of the precautionary principle elsewhere of this paper.

[104] Argentina on behalf of a number of States (Australia, Brazil, Chile, Columbia, Cuba, Spain, Indonesia, Ireland, Solomon Islands, Mexico, New Zealand, Venezuela and Argentina) read a statement demanding stricter standards for the shipment of nuclear materials. J. Prescott, "Coastal States Call for Code on Nuclear Cargoes", Lloyds List, 11 March 1996.

[105] Statement by the Minister of State at the Department of the Marine, Mr Eamon Gilmore TD, on April 5th 1995

[106] See discussion on page 16.

[107] International Convention for the Safety of Life at Sea 1 November 1974, as amended in 1981 and 1983 with the 1978 SOLAS Protocol, London 1986, 32 UST 47, TIAS 9700, 14 I.L.M. 956 (1975) ('Solas'). Opened for Signature 1 November 1974, entered into force May 25, 1980. 112 states parties including Japan, France, United Kingdom, and New Zealand. The International Maritime Dangerous Goods Code IMCO Resolution A. 81 (IV), September 27, 1965 is an advisory uniform code for implementation of regulations dealing with safety standards of dangerous goods, and addresses radioactive material.

[108] For criticism see J. Breer, "IMO Under Fire for Nuclear Fuel Transport Code",

Lloyds List, 5 June 1993.

[109] International Convention for the Prevention of Pollution from Ships ('MARPOL 73/78'), IMCO Doc. MP/CONF/WP.21/Add.4 (1973), 12 I.L.M. 1319 (1973), modified by the 1978 Protocol, IMCO Doc. TSPP/CONF/11 (1973), 17 I.L.M. 546 (1978). For a history see D. M'Gonigle and M. Zacher, Pollution, Politics and International Law (London, 1979)..

[110] MARPOL 73/78 Articles 4 and 6

[111] Particularly Articles 194, 211, 218 and 220.

[112] 1972 Convention on the International Regulations for Preventing Collisions at Sea, adopted in London 20 October 1972.

[113] 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCWS) London, 7 July 1978

[114] See note 35 supra on page 6.

[115] There is a question as to whether the Basel Convention applies to radioactive waste. While Article 1(3) excludes from the scope of the Convention "[w]astes which, as a result of being radioactive, are subject to other international control systems, including international instruments, applying specifically to radioactive materials", the closest approximation to such a control system in place is the IAEA which has in fact instituted only a voluntary code of practice. Thus one avenue for concerned states is to press within the Working Groups for acceptance that, given the current regulatory framework, the Basel Convention provisions do apply to radioactive waste in the absence of a binding regulatory framework.

[116] Basel Convention, Article 4(2)

[117] Disagreement still exists as to whether territorial seas are territories for this purpose. Article 4 (12) preserves sovereignty of States over their territorial sea and the sovereign rights and jurisdiction which States have in their EEZs and continental shelves as well as and navigational freedoms. Japan has entered a declaration (UNEP T/BSL/000, 19) that "[t]he Government of Japan understands that nothing in this Convention shall be deemed to require notice to or consent of any state for the mere passage of hazardous wastes on a vessel of a Party exercising its navigation rights under international law" and Portugal has declared that Portugal requires notification of any transboundary movement of hazardous wastes effected across the area under its national jurisdiction until an Article 15(4) system is instituted (Final Act of the 1989 Convention. The United Kingdom has declared that the provisions of the convention do not affect in any way the exercise of navigational rights and freedoms as provided for in international law. (Multilateral Treaties Deposited with the Secretary General. Status as of 3 December 1989 (1990), 857). Mexico and other states have observed that the Convention preserves their rights as coastal states in the areas subject to their national jurisdiction, including the EEZ. (UNEP, Final Act of the 1989 Convention, 30, and Uruguay and Venezuela at 32 and 34.)

[118] Defined in Basel Convention Article 2(12) as any State, other than the "State of

export or import, through which a movement of hazardous wastes or other wastes is planned or takes place".

[119] Basel Convention Article 6(4)

[120] Basel Convention Article 9(1)

[121] Basel Convention Article 9(2) -(5)

[122] Basel Convention Article 6(4)

[123] Basel Convention Article 2(13) defines "States concerned" as "Parties which are States of export or import, or transit States, whether or not Parties", and Article 6(1) provides that the State of export shall notify, or shall require the generator or exporter to notify, in writing...the competent authority of the States concerned of any proposed transboundary movement of hazardous wastes or other wastes."

[124] 43rd Session of the I.M.O.'s M.S.C. Sub-committee on Safety of Navigation (NAV-43) IMO, London, 14-18 July 1997, attended by the author. See recommended Guidelines on Voyage Planning at NAV 43/WP.3/Add.1

[125] Note also that full implementation of the draft Guidelines on Emergency Planning (see reports from MEPC-39 and MSC-68) would also require such prior consultation with coastal States for information on shore-side emergency response capabilities and arrangements.

[126] NAV 42/23, para. 6.10. See MEPC 40/15, 20 June 1997 §2(b)(32

[127] The Philippines relied on Article 58(3) of the Law of the Sea Convention

[128] NAV 43/WP.5.

[129] NAV 43/WP.3/Add.1/Annex 14. The following paragraphs were drafted by the Working Group, and agreed by the Sub-Committee, for consideration by MEPC-40, (NAV 43/WP.3/Add.1/Annex 14.) for inclusion in the draft joint-Progress Report as additions to MEPC 40/15:

2(b)(iv)(7) NAV 43 considered general guidance on the development of provisions on voyage planning for all ships engaged on international voyages which would include those ships carrying INF Code materials. A draft Assembly resolution and preliminary guidelines for voyage planning were developed for further consideration at NAV-44. The Sub-Committee also agreed that, if appropriate, a reference to the resolution adopting the guidelines for voyage planning could be made in the INF Code.

2(b)(iv)(8) NAV 43 again considered the issue of prior notification and consultation and a majority of delegations restated their opposition to this concept. The Sub-Committee requested member Governments that support this concept to submit concrete proposals. (italics added)

2(b)(x)(3) NAV 43 again considered the issue of the tracking of ships carrying INF Code materials; however, no delegation offered any views on this issue beyond those that were expressed at NAV 42.

[130] It should be noted that the draft Guidelines for Voyage Planning state the need

for "close and continuous monitoring of the vessel's progress and position during the execution of [the] plan." NAV 43/WP.3/Add.1, para. 5.2. However this may refer to on-board rather than shore-based monitoring.

[131] See IMO brief report.

[132] General Assembly Nineteenth Special Session Agenda item 8: Overall Review And Appraisal of The Implementation Of Agenda 21: Report of the Ad Hoc Committee of the Whole of the Nineteenth Special Session, Distr. A/S-19/29 27 June 1997. ("19th Special Session Report"), §59.

[133] 19th Special Session Report, note 132 supra, §60.

[134] Argentina stated that "[t]he Argentine Republic fully respects the right of free navigation as embodied in the Convention; however, it considers that the transit by sea of vessels carrying highly radioactive substances must be duly regulated" and noted that the "Argentine Republic accepts the provisions on prevention of the marine environment contained in Part XII of the Convention, but considers that, in the light of events subsequent to the adoption of that international instrument, the measures to prevent, control and minimize the effects of the pollution of the sea by noxious and potentially dangerous substances and highly active radioactive substances must be supplemented and reinforced." Egypt, (Law of the Sea Bulletin, Special Issue (1987)) citing Article 23 of the Convention which stipulates that nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances ships in question shall, when exercising the right of innocent passage through the territorial sea, carry documents and observe special precautionary measured established for such ships by international agreements, declared that it will require nuclear-powered and

similar ships to obtain authorization before entering the territorial sea of Egypt, until such international agreements are concluded and Egypt becomes a party to them. Germany stated that "[n]one of the provisions of the Convention, which in so far [as they] reflect existing international law, can be regarded as entitling the coastal State to make the innocent passage of any specific category of foreign ships dependent on prior consent or notification. Italy made a similar declaration, but stated more specifically that the provisions do correspond on this matter to customary international law. Malaysia cited the inherent danger entailed in the passage of nuclear-powered vessels or vessels carrying nuclear material or other material of a similar nature Articles 22(2) and 23 of the Convention stated that the Malaysian Government, "with all of the above in mind, requires the aforesaid vessels to obtain prior authorization of passage before entering the territorial sea of Malaysia until such time as the international agreements referred to in article 23 are concluded and Malaysia becomes a party thereto. Under all circumstances, the flag of State of such vessels shall assume all responsibility for any loss or damage resulting from the passage of such vessels within the territorial sea of Malaysia." Malta stated that "Malta is also of the view that such a notification requirement is needed in respect of nuclear-powered ships or ships carrying nuclear or other inherently dangerous or noxious substances. Furthermore, no such ships shall be allowed within Maltese internal waters without the necessary authorization." The Netherlands lodged a lengthy declaration, objecting to any declaration or statement excluding or modifying the legal effect of the provisions of the United Nations Convention on the Law of the Sea and cited specifically innocent passage in the territorial sea, stating that "the

Convention permits innocent passage in the territorial sea for all ships, including

foreign warships, nuclear-powered ships and ships carrying nuclear or hazardous waste, without any prior consent or notification, and with due observance of special precautionary measures established for such ships by international agreements" and passage through the exclusive economic zone, stating that "[n]othing in the Convention restricts the freedom of navigation of nuclear-powered ships or ships carrying nuclear or hazardous waste in the exclusive economic zone, provided such navigation is in accordance with the applicable rules of international law. In particular, the Convention does not authorize the coastal State to make the navigation of such ships in the exclusive economic zone dependent on prior consent or notification." Oman (Law of the Sea Bulletin, No. 14 (December 1989), 8) stated that "with regard to foreign nuclear-powered ships and ships carrying nuclear or other substances that are inherently dangerous or harmful to health or the environment, the right of innocent passage, subject to prior permission is guaranteed to the types of vessel, whether or not warships, to which the descriptions apply." Saudi Arabia made a declaration similar to that of Malaysia. The United Kingdom stated that it considers that declarations and statements not in conformity with articles 309 and 310 include "those which purport to require any form of notification or permission before warships or other ships exercise the right of innocent passage or freedom of navigation or which otherwise purport to limit navigational rights in ways not permitted by the Convention"; and Yemen stated that it will give precedence to its national laws in force which require prior permission for the entry or transit of foreign warships or of submarines or ships operated by nuclear power or carrying radioactive materials."

[135] Communication Of 28 February 1997 received from the resident representative of Brazil to the International Atomic Energy Agency [IAEA] INFCIRC/533

[136] The communication stated that these should include: guarantees regarding the non-contamination of the marine environment; exchange of information on the routes selected; an obligation to communicate to coastal States the contingency plans that will be applied in the event of an accident; the commitment to recover the radioactive waste in the event of incidents involving ships transporting waste; and payment of compensation in the event of injury and damage.

[137] See note 21 supra on page 4.

[138] Protocol Concerning Co-operation in Combating Pollution Emergencies in the South Pacific Region, Nouméa, 1986, entered into force on 22 August 1990, 26 I.L.M. 59, ("Emergency Response Protocol") and Protocol for the Prevention of Pollution of the South Pacific Region by Dumping, Nouméa, 1986, entered into force on 22 August 1990. 11 Parties, 26 I.L.M. 6. The United States and France are party to the Protocols.

See also the Convention on Conservation of Nature in the South Pacific. Signed at Apia 12 June 1976 at Apia, entered into force 28 June 1990.

[139] Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes Within the South Pacific Region, adopted at Waigani on 16 September 1995 ('Waigani Convention'). Not in force. The Waigani Convention requires contracting parties to prohibit the import of hazardous and

radioactive wastes and establishes mandatory notification procedures for

transboundary movements of non radioactive hazardous waste. Waigani Convention, Article 4(1). Like SPNFZ, the Waigani Convention applies to high seas enclosed within EEZs as well as the EEZs themselves and of course territorial waters: Article 1.

[140] Waigani Convention Article 2, except for Articles 4(1), 4(2), 4(3) and 4(5). However Parties are to actively participate in the development of the Convention on the Safe Management of Nuclear Waste, subject to available resources (Waigani Convention, Article 5(b)) and to give active consideration to the implementation of the IAEA Code of Practice and "such other international and national standards which are at least as stringent" (Waigani Convention, Article 4(5)(a)) Waigani thus endorses, promotes and goes some way towards incorporating the IAEA Code, thus giving it added legal force. Provisions such as the right of notification and to be informed are thus endorsed and the implementation is reinforced. National implementation of the Code is thus endorsed both by Waigani Article 4(5) and by the Law of the Sea Convention Article 211(1).

Waigani Article 4(3)(a) reaffirms radioactive dumping commitments uner the London Convention, SPNFZ, UNCLOS and and the SPREP Dumping Protocol.

[141] Emergency Response Protocol, note 138 supra, Article 3

[142] Emergency Response Protocol, note 138 supra, Article 4

[143] Emergency Response Protocol, note 138 supra, Article 5

[144] The IMO hosted negotiations that led in 1996 to the completion of the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 35 I.L.M. 1406 (1996) ('HNS Convention') but Article 4(3)(b) of this new convention specifically excludes damage caused by radioactive material.

[145] Article 297(1). Article 296 states that the decisions of the dispute-resolution bodies are final and binding.

[146] The 21 members of the International Tribunal for the Law of the Sea were elected in August 1996 and are now available to receive and adjudicate disputes. The President of this Tribunal, Thomas Mensah of Ghana, is also given the responsibility to select members of the arbitral tribunals if the parties cannot agree. The list of experts for the "special arbitral tribunals" are to be kept by the Food and Agriculture Organization (for the fishery experts), the U. N. Environment Programme (for the environmental experts), the Inter-Governmental Oceanographic Commission (for the scientific experts), and by the International Maritime Organization (for experts on navigation and marine dumping).

[147] Of the 112 nations that have ratified the Convention, only 16 have filed a declaration indicating their selections among these dispute-resolution options; of these nine have listed the Law of the Sea Tribunal as one of acceptable mechanisms. If a party has made no selection, it is deemed to have selected the arbitral tribunal ( Article 287(3)) and if parties to a dispute have made conflicting selections, then the arbitral tribunal becomes the mechanism used for resolving their dispute, unless the parties agree otherwise (Article 287(5)).

[148] Law of the Sea Convention Article 290

[149] By way of example EC Regulation 1493/93/EURATOM of 8 June 1993 (OJ No. L 148, 19 June 1993) on notification of the shipment radioactive substances controls the shipment of radioactive substances in the European Union. Sealed sources or radioactive waste may not be exported without the written declaration of the consignee assuring the safe storage, use, or disposal of the material, sent to the competent authority of the member State to which the shipment is to be made (Regulation 1493/93/EURATOM Article 4). The holder must provide the competent authorities in the destination member State with details concerning the delivery. The applicable Council Directive (Directive 92/3EURATOM (OJ 1992, L 35)) which covers shipments of radioactive waste between member states as well as into and out of the Community whenever levels exceed those laid down in Directive 80/836/Euratom Articles 4(a) and (b), provides in its preamble that the third country of destination or origin and any third country or countries of transit must be consulted and informed and must have given their consent." The Preamble also notes that the Fourth ACP-EEC Convention signed at Lomé on 15 December 1989 contains specific provisions governing the export of radioactive waste from the Community to non-member States party to that Convention.

[150] The Bamako Convention (Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Africa, 30 January 1991, at Bamako, Bali. Not in force) addresses issues of radioactive waste (Article 2(1)(a) and 2(2) and Annex I) notification and transit through States in Africa. Article 4(4)(c) of the Bamako Convention provides that "[t]his Convention recognizes the sovereignty of States over their territorial sea, waterways, and air space established in accordance with international law, and jurisdiction which States have in their exclusive economic zone and their continental shelves in accordance with international law, and the exercise by ships and aircraft of all States of navigation rights and freedoms as provided for in international law and as reflected in relevant international instruments." Transit States must be notified and transit may not take place without the consent of a transit State under Article 4.3. Under Article 6(4), a transit State may consent to the movement with or without conditions, deny permission for the movement, or request additional information. The State of export shall not allow the transboundary movement to commence until it has received the written consent of the State of transit. States assume strict, unlimited liability for accidents and human and environmental consequences of waste generation.

[151] The 1996 Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and Their Disposal (signed at Uzmir on 1 October 1996. Not in force). The Protocol is to the Barcelona Convention for the Protection of the Mediterranean Sea against Pollution, establishes in its introductory paragraphs that the "ultimate aim" is to phase out all shipments of hazardous wastes, and acknowledges in the Preamble that "any State has the sovereign right to ban the entry, transit or disposal of hazardous wastes in its territory."

Article 6 requires the prior written consent of the transit state. Article 6(4) provides for movement through the territorial sea, which requires prior notification, following which the transit state brings to the attention of the exporting State obligations relating to passage through its territorial sea in application of international law and the

relevant provisions of its domestic legislation adopted in compliance with

international law to protect the marine environment. "Where necessary, the State of transit may take appropriate measures in accordance with international law." This procedure must be complied with within the delays provided for by the Basel Convention.

All Parties must take appropriate legal, administrative and other measures within the area under their jurisdiction to prohibit the export and transit of hazardous wastes to developing countries, and parties which are not Member States of the European Community shall prohibit all imports and transit of hazardous wastes (Article 5(4)). Since 'Area under national jurisdiction' includes a "marine area or airspace within which a State exercises administrative and regulatory responsibilities in accordance with international law in regard to the protection of human health or the environment" it would include transit through the EEZ of a Party. (Article 1(k)). Annex IV details the information that must be provided upon notification. Radioactive wastes are included in the list of hazardous wastes covered by this Protocol. Parties are to take all appropriate measures to reduce to a minimum the transboundary movement of hazardous wastes, and if possible to eliminate such movement in the Mediterranean, and Parties have the right to ban the import of hazardous wastes (Article 5(3)).

This Protocol thus implements the concept of prior notification of hazardous wastes through the territorial seas as well as requiring compliance with domestic legislation. Appropriate measures in accordance with international law with respect to territorial seas are left to the transit State. France and the European Community have made declarations to the Protocol dealing particularly with rights of navigation through the EEZ and territorial seas.

[152] The latter is not unheard of: The United Arab Emirates, Egypt, Haiti, Iran, Oman, the Philippines, and Saudi Arabia all require prior notification ships carrying nuclear or other inherently dangerous or noxious substances, and all require prior authorization for such shipments. Haiti has banned the shipment of materials likely to endanger the health of the country's population and to pollute the marine, air and land environment. Law of the Sea Bulletin No. 1 (July 1988), 13.

[153] Declaration of Jackson Hole, 23 September 1989, in (1989) 26 I.L.M. 1444

[154] H. Hirawa, "Plutonium Ship Arrives Amid Security, Protests", Japan Times, 6 January 1993. At the South Pacific Permanent Commission in Quito, the Foreign Ministers of Columbia, Chile, Ecuador, Panama and Peru banned the ship from the waters of their respective States. Greenpeace Press Release, "Plutonium Ship Expected to Arrive in France Despite World Protest," 31 October 1992. The Brazilian government banned the vessel from waters coming under its jurisdiction.( RTf 10/08 0802 "Plutonium ship said not entering territorial water". Reuters Report, 9 October 1992. (9 October Report) The Philippines banned the vessel from its territorial waters and threatened to board the vessel if necessary to keep it out (Reuters Wire Story 9 November 1992). The Solomon Islands government issued a formal notice of concern to Japanese protesting its opposition to the entry of the nuclear materials into its EEZ following the passage of the vessel through its waters (Greenpeace Press Release "Japanese Plutonium Ship Infringes 200 Mile EEZ of French Territory", 31 December 1992.) and Nauru issued a strong protest warning the Akatsuki Maru not to enter its EEZ. (and Nauru issued a strong protest warning the Akatsuki Maru not to enter its

EEZ.) Japan reportedly advised the Australian government that it would avoid such

zones unless it is "unavoidable" or "impractical" to do so. The vessel apparently did pass through several EEZs including those of several Pacific islands and South Africa. (Greenpeace Press Release, "Japanese Plutonium Shipment along West Coast of Africa: route Leads Around Dangerous Cape of Good hope", 23 November 1992.) Additionally South Africa, Brazil, Chile and Argentina, reportedly barred the vessel from territorial waters. RTf 10/08 0802 "Plutonium ship said not entering territorial water". Reuters Report, 9 October 1992. (9 October Report)

[155] Brazil, Chile and Argentina (Reuters wire story, March 22, 1995), as did Kiribati. Fiji sent a diplomatic note to Japan to ensure the ship was kept out of its territorial waters and called on Japan to rethink its policy on transporting radioactive waste (Reuters wire story, March 22, 1995) The Japanese government refused to reveal the intended route of the vessel, citing security reasons and stated that the Japanese and British governments will continue to keep the route secret, even from countries through whose territorial waters or EEZs the vessel may travel (Nucleonics Week, V. 36, March 17, 1995, 1, 5, quoting Foreign Ministry Press Secretary Terusake Terada).

[156] Reuters wire story, March 21, 1995

[157] Portugal banned the vessel from its EEZ and dispatched a warship to ensure the vessel stayed out of the zone. Malaysia banned the Pacific Teal from its waters, additionally stating that they would seek assurances from the Japanese government that the ship would not use waters under Malaysian control. Reuters report July 15 1997. Malaysia cited the Nuclear Non-Proliferation Treaty and its own Atomic Energy Licensing Act as the basis for controlling the movement of nuclear material within its national jurisdiction, and stated that it was concerned about a possible mishap in the Malacca Strait, between Malaysia and Indonesia, which is a key shipping link between the west and Asia. The Governments of Argentina, Brazil, Chile and Uruguay issued a joint declaration declaring their serious concerns with the risks of the transport of radioactive waste shipments in the region, their intention to adopt, in waters under their jurisdiction, measures recognized under international law in defense of the health of their populations and the marine environment, and the need to reinforce, in international bodies, the regulation of the transport of nuclear waste and spent nuclear fuel. Joint Declaration of Brazil, Argentina, Chile and Uruguay about Radioactive Waste Transport, 17 January 1997. Argentina reiterated that international and national laws give coastal States jurisdiction regarding protection and preservation of the marine environment within the EEZ, announced that measures recognized by international law will be adopted within jurisdictional waters and reiterated the need to continue the work begun in 1995 within the IMO. Argentinean Foreign Ministry Press Release, January 15 1997. Argentina said that it intends to establish a set of binding rules banning nuclear shipments through jurisdictional waters and offering guarantees of minimal risk to the marine environment. The South African Government stated its opposition to the Pacific Teal from entering South Africa's EEZ and called for ban on the transboundary movement of hazardous and toxic substances. Press Statement by Deputy Minister P. R. Mokaba, January 31 1997. However a South African naval vessel intercepted the vessel after the vessel sailed within the EEZ in breach of the undertaking to the South African government made by a delegation representing the shippers. South African press release of 4 February 1997 and Greenpeace International Press Release February 2, 1997. The New Zealand

Minister of Foreign Affairs and Trade issued formal statements seeking Japanese

assurances that the vessel would not pass through New Zealand's exclusive economic zone.

[158] See note 21, supra on page 4.

[159] SPREP Article 6

[160] SPREP Article 16

[161] SPREP Article 25

[162] The storage of radioactive matter is prohibited (SPREP Article 11) and parties are to take measures to prevent, reduce and control pollution from nuclear testing (SPREP Article 12).

[163] SPREP Treaty Article 2. The United States opposed the inclusion of extensive areas beyond the 200 mile zones of Parties but agreed to the inclusion of totally surrounded enclaves, but not fingers or corridors of high seas. See Cicin-Sain and Knecht, note 21, supra.

[164] SPREP Treaty, Article 4(1). Amendments to the Convention and its Protocols can be made with the approval of two-thirds of the Parties: SPREP Treaty, Article 24.

[165] SPREP Article 5(1)

[166] See discussion on page 23 at note 151.

[167] See note 2, supra.

[168] SPNFZ Article 7(1)(a) SPNFZ obviously also prohibits the testing, manufacture, acquisition and stationing of nuclear weapons in the territory of States party (SPNFZ Articles 3, 5, 6).

[169] SPNFZ Article 7(1)(b)

[170] SPNFZ Article 1. The geographical area of application of the treaty includes those areas of the high seas which are enclosed from all sides by the two hundred mile nautical zones (SPNFZ Article 2).

Under Article 5(2), each Party in the exercise of its sovereign rights remains free to decide for itself whether to allow visits by foreign ships and aircraft to its ports and airfields, transit of its airspace by foreign aircraft, and navigation by foreign ships in its territorial sea or archipelagic waters in a manner not covered by the rights of innocent passage, archipelagic sea lane passage or transit passage of straits.

Parties, including those exporting uranium, must be mindful of Article 4's undertaking to ensure that any provision of source or special fissionable material be in accordance with strict non-proliferation measures to provide assurance of exclusively peaceful non-explosive use.

[171] The Protocols require nuclear weapon States Party to the Protocols to commit to abide by the Treaty's provisions in their territories in the region, not to contribute to violations of the Treaty or threaten the use of nuclear weapons against the Parties, and

to refrain from testing nuclear devices in the zone. The SPNFZ Protocols are in 24

I.L.M. 1459.

[172] This year an international joint venture, Sea Launch Limited Partnership (SLLP), proposes to construct and operate a mobile, floating launch platform in international waters in the east-central equatorial Pacific Ocean from which it would conduct commercial space satellite launch operations, with the first Sea liftoff scheduled for the second half of this year. See the Boeing web site. Potential environmental impacts from launch activities according to an environmental assessment (at AST's website, appendices and FONSI) include emissions during pre-launch, launch, and post-launch, spent stages falling back into the ocean, residual fuels and combustion emissions released into the atmosphere and ocean, thermal energy and noise as well as the potential effect of unsuccessful launches on the marine environment and adjacent land. For instance, 4.5 tonnes of unused kerosene for each launch would form a surface sheen several millimetres thick covering several square kilometers, killing plankton underneath, then form a fog: ES-3. The two rocket stages, weighing 36 tonnes and 11.5 tonnes respectively, and the streamlining fairing, weighing a total of 2 tonnes, would fall back into the ocean. ES-3.

[173] See discussion and suggestions supra on page 17 and note 129.

[174] See discussion on page 17