Jon M. Van Dyke1
William S. Richardson School of Law
University of Hawaii at Manoa
Honolulu, Hawaii

The transport of unusually hazardous radioactive materials by sea may become more common now that Japan appears to have committed itself to reprocessing its nuclear wastes and acquiring a stockpile of plutonium.2 These shipments from France to Japan (and back) present hazards that are of a different dimension than those presented by other dangerous cargoes. Many countries along the route of these shipments have protested vigorously against them, and some have explicitly cited the "precautionary principle" as the norm of international law that provides a framework to regulate such transports.3

The "precautionary principle" has gained almost universal acceptance during the past decade as the basic rule that should govern activities that affect the ocean environment.4 This principle requires users of the ocean to exercise caution by undertaking relevant research, developing nonpolluting technologies, and avoiding activities that present uncertain risks to the marine ecosystem. The precautionary principle lays down a set of specific responsibilities that must be met before shipments of unusually hazardous materials may be undertaken. This paper will outline these responsibilities and will demonstrate that they have not been complied with by the Japanese agencies in charge of the shipments.

The Shipments. The controversial Japanese plutonium shipment began in November 1992, when a refitted freighter called the Akatsuki Maru carried 2200 pounds (one metric ton) of weapons-usable plutonium from France to Japan, traveling around the Cape of Good Hope at the tip of Africa, and then going eastward south of Australia and New Zealand, and finally turning north through the Pacific Islands to Japan. More recently, a vessel registered in the United Kingdom called the Pacific Pintail left La Hague, France on February 23, 1995, carrying 28 logs of high-level vitrified nuclear waste in glass blocks each weighing 1,000 pounds. These solidified liquid residues are extremely hot, even in normal conditions. This ship traveled in the opposite direction, going southwest across the Atlantic to Cape Horn at the tip of South America and then northwest across the Pacific, passing close to Hawaii, and finally reaching Rokkasho, Aomori Prefecture, Japan on April 25, 1995.5 Then, on May 25, 1995, the Pacific Sandpiper left Omaezaki Port in Shizuoka Prefecture, carrying spent nuclear fuel to France, presumably through the Panama Canal. Despite the many protests that have been raised,6 Japan has announced that these shipments will continue in increasing numbers over the coming decades.7

The Precautionary Principle. Although this principle has been phrased in many ways in recent agreements and commentaries,8 perhaps the phrasing in Principle 15 of the 1992 Rio Declaration on Environment and Development9 best reflects the international community's views on this principle:

In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.10

What specific burdens does this principle impose users of the ocean?11 It requires policy makers to be alert to risks of environmental damage, and the "greater the possible harm, the more rigorous the requirements of alertness, precaution and effort."12 It rejects the notion that the oceans have an infinite or even a measurable ability to assimilate wastes, and it instead recognizes that our knowledge about the ocean's ecosystems may remain incomplete and that policy makers must err on the side of protecting the environment.13

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End Notes

1. The author would like to acknowledge the assistance of the Nuclear Control Institute in supporting the research for this paper and the assistance of Karl Espaldon, University of Hawaii Law School Class of 1996, in organizing sources and research materials. Back to document

2. See generally Jon M. Van Dyke, Sea Shipment of Japanese Plutonium under International Law, 24 Ocean Dev. & Int'l L. 399 (1993) [hereafter cited as Van Dyke, Japanese Plutonium]; Andrew Pollack, Japan Throws the Switch on Reactor, N.Y. Times, Aug. 30, 1995, at A6, col. 6 (nat'l ed.). Back to document

3. See infra notes 79-106 and accompanying text. When a Chilean naval vessel protested the transit of the Pacific Pintail through Chile's exclusive economic zone, it said: "I inform you that the carrying of your radioactive material is a violation of the precaution[ary] principle ... stated in the Rio de Janeiro declaration ...." Transcript of a radio conversation between the Pacific Pintail and the Chilean navy, March 20, 1995. Back to document

4. See infra notes 8-16 and accompanying text. Back to document

5. The vessel had to drift offshore for 24 hours because Governor Morio Kimura of Aomori Prefecture refused entry to the port until the central government and the electric utilities promised that the waste would be removed from Aomori after an intermediate storage of 30-50 years. The Governor finally allowed the ship to land after an ambiguous "assurance" from Japan's Science and Technology Agency, because he concluded that letting the deadly waste drift offshore was too dangerous. Citizen's Nuclear Information Center (Tokyo, Japan), Press Release, June 16, 1995. Back to document

6. See infra notes 79-106 and accompanying text. Back to document

7. It has been estimated that 44,500 cubic meters of nuclear wastes are to be returned to Japan according to present reprocessing contracts during the next 15-20 years. This transport would require between 120 and 1,200 shipments, depending on how many logs are loaded onto a single ship. Citizens Nuclear Information Center, Tokyo, Japan, Press Release, April 17, 1995.Back to document

8. The precautionary principle is a logical corollary from the established international-law norm that no state has the right to engage in activities within its borders that cause harm to other states. See, e.g., Trail Smelter Arbitration (U.S. v. Can.), 3 R. Int'l Arb. Awards 1905 (1941). In the Trail Smelter Arbitration, the arbitrators required Canada to pay damages even though the causal link between the emissions in Canada and the damages remained somewhat uncertain. See Bernard A. Weintraub, Science, International Environmental Regulation, and the Precautionary Principle: Setting Standards and Defining Terms, 1 N.Y.U. Envtl. L. J. 173, 182-82 (1992) (citing 3 R. Int'l Arb. Awards at 1912, 1921, 1922). Back to document

9. A/CONF.151/5/Rev.1 (June 13, 1992). Back to document

10. See also Agenda 21, Chapter 17, 17.22, in Report of the United Nations Conference on Environment and Development (Rio de Janeiro, June 3-14, 1992), A/CONF.151/26 (Vol.II)(Aug. 13, 1992):

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 ...
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11. Commentators have discussed whether the precautionary principle has been officially accepted as a norm of customary international law that is formally binding on all nations. The principle has been so universally included in recent treaties that it appears now to have that status. One commentator has stated that the Organization of Economic Cooperation and Development (OECD) (of which Japan is a member) adopted the precautionary principle as early as 1979, and that today "modern international environmental law is largely precautionary." Harold Hohmann, Precautionary Legal Duties and Principles of Modern International Environmental Law 141, 203, 341-45 (1979)(citing the Declaration of Anticipatory Environmental Policies, adopted by the OECD environment ministers on May 8, 1979). See also Daniel Bodansky, Remarks: New Developments in International Environmental Law, 85 Am. Soc'y Int'l L. Proc. 401, 413 (1991)("Indeed, so frequent is its invocation that some commentators are even beginning to suggest that the precautionary principle is ripening into a norm of customary international law"); David Freestone, The Precautionary Principle, in International Law and Global Climate Change 21, 36 (Robin Churchill and David Freestone eds. 1991):

The speed with which the precautionary principle has been brought on to the international agenda, and the range and variety of international forums which have explicitly accepted it within the recent past, are quite staggering .... The significance of the repeated public acceptance and endorsement of principles by government representatives should not be underrated, particularly if, as is increasingly the case, this is supported by binding measures explicitly implementing the principle [citing to the 1989 action under the Oslo Convention to ban dumping of industrial wastes and the Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa, Jan. 29, 1991, 30 I.L.M. 773 (1991)].
Also relevant to its acceptance is fact that it is impossible to find examples of nations rejecting the precautionary principle or citing scientific uncertainty as a legitimate basis for action or inaction. The specific content of the precautionary principle is, however, still controversial. For a summary of the recent treaties and documents using the term and an analysis of some of the unresolved issues, see James E. Hickey, Jr., and Vern R. Walker, Refining the Precautionary Principle in International Environmental Law, 14 Va. Envt'l L.J. 423 (1995). See also Gregory D. Fullem, Comment, The Precautionary Principle: Environmental Protection in the Face of Scientific Uncertainty, 31 Willamette L. Rev. 495 (1995); John M. Macdonald, Appreciating the Precautionary Principle as an Ethical Evolution in Ocean Management, 26 Ocean Dev. & Int'l L. 255 (1995). Back to document

12. Freestone, supra note 11, at 31.Back to document

13. Ellen Hey, The Precautionary Concept in Environmental Policy and Law: Institutionalizing Caution, 4 Geo. Int'l Envtl. L. Rev. 303, 305 (1992). Some observers believe the precautionary principle to be essential because no amount of advanced research can predict the impact of significant polluting events. See, e.g., William H. Rodgers, Environmental Law 35-39 (2d ed. 1994) (discussing "chaos theory"). Examples of application of the precautionary principle include the decisions of the contracting parties to the London Dumping Convention, 26 U.S.T. 2403, 11 I.L.M. 1294 (1972), to phase out all dumping of industrial wastes and prohibit dumping of low-level radioactive wastes; the 1982 decision of the International Whaling Commission to impose a moratorium on commercial whaling; the protection of endangered species under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 12 I.L.M. 1085 (1973); the U.N. General Assembly's ban on driftnet fishing, Resolutions 44/225 (1989) and 45/197 (1990); and the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer. See Freestone, supra note 11, at 35-36; Robert Jay Wilder, The Precautionary Principle and the Law of the Sea Convention, in Implications of Entry into Force of the Law of the Sea Convention 50 (Ocean Governance Study Group, 1995).Back to document