The Need for Further International Action
Safety of Sea Transport of Ultrahazardous Radioactive Materials
by Jon M. Van Dyke
Professor of Law
University of Hawai`i School of Law
August 17, 1998
Although the international community has taken some positive steps to address the risks created by the movements of ultrahazardous radioactive cargoes, important gaps still exist in the legal regime governing these activities. An international consensus appears to have been reached to make the Code for the Safe Carriage of Irradiated Nuclear Fuel, Plutonium, and High-Level Radioactive Wastes in Flasks Aboard Ships (the INF Code) mandatory and to clarify the standards governing shipboard safety. But still lacking are agreements regarding salvage responsibilities, liability of shippers for damages, obligations to consult regarding the best routes and to provide advance notification to concerned coastal states, the preparation of environmental assessments, and contingency planning to handle shore emergencies and salvage responsibilities. Until agreements are reached on these important matters, the shipment of these extremely-dangerous materials will continue to violate fundamental norms of international law and comity, because they place coastal nations that receive no benefit from the shipments at grave risk of environmental disaster without any legal protections.
On April 16, 1998, the Secretariat of the International Atomic Energy Agency (IAEA) released its "Report on Legally Binding and Non-Binding International Instruments and Regulations Concerning the Safe Transport of Radioactive Materials and Their Implementation." This 52-page document provides some useful information, but it is misleading in lulling the reader to assume that a comprehensive legal regime has been developed. In fact, gaping holes still remain and the international community must work together to develop a more complete legal framework. It is highly advisable to negotiate a specific international instrument focused on maritime transport of ultrahazardous radioactive materials.
The Safety Concerns
Although the October 3, 1997 mandate of the IAEA General Conference (Resolution GC(41)/RES/12) requested the Secretariat to catalogue and analyze international treaties and regulations "concerning the safe transport of radioactive materials," the Secretariats Report views radioactive materials as just another form of "dangerous goods," and explains how such cargoes have been regulated since 1776. The Report discusses some 65 instruments, many of which have no particular focus on radioactive materials.
The recent international fears have been caused by a new cycle of sea shipments of large cargoes of highly toxic radioactive materials. In November 1992, Japan shipped 2200 pounds (one metric ton) of plutonium in a refitted freighter called the Akatsuki Maru from France to Japan, going around the Cape of Good Hope in Africa and then south of Australia and New Zealand before turning north to traverse the Pacific to Japan. In February 1995, the British vessel Pacific Pintail carried 28 canisters of high-level vitrified nuclear waste in glass blocks, each weighing 1,000 pounds, going around Cape Horn at the tip of South America and then across the Pacific. In early 1997, the British vessel Pacific Teal carried 40 such canisters, going around Africa and then up through the Tasman Sea. Most recently, in January 1998, the British vessel Pacific Swan carried 60 canisters, going through the Panama Canal. French officials estimate that one or two such shipments will be made each year for the next 15 years.
These shipments present risks of a magnitude totally different from any previous ocean cargoes. Each of the 60 canisters on the Pacific Swan contains 17,000 terabecquerels in beta-gamma activity.  These highly-toxic and long-lived poisons could endanger large coastal populations or create an ecologically dead zone in the ocean for thousands of years. They are extremely difficult to handle, and the equipment necessary to salvage them in the event of an accident have not yet been developed. British representatives acknowledge that in the event of a vessel sinking "it was quite apparent that recovery from some places would not be possible."  If a vessel carrying such a cargo collided with another vessel causing an intensely hot and long-lasting shipboard fire, then radioactive particles could become airborne, putting all nearby lifeforms in grave danger of catastrophic health impacts. Brazil, Argentina, and Chile exerted every possible pressure to keep the Pacific Pintail from traveling through their territorial waters and exclusive economic zones in 1995,  and in August 1998 Argentina and Chile conducted joint naval exercises to prepare for a hypothetical accident in which a ship carrying ultrahazardous radioactive materials collided with an iceberg. 
These cargoes are not, therefore, just another "dangerous goods." They are truly "ultrahazardous," and require a focused and comprehensive legal regime designed to internalize the real costs of the shipments, and to ensure that the risks they create are not transferred from those that benefit from these shipments to those who gain nothing from them.
The Current State of Affairs
In March 1996, the International Maritime Organization (IMO) held a Special Consultative Meeting during which governmental and nongovernmental organizations presented their views on the risks created by these transports and the legal regime that applies to them. After that meeting assignments were given to various international bodies to address these issues. A few issues have been satisfactorily resolved, but many of them require further examination and discussion.
Making the INF Code Mandatory. The international community appears to have agreed that the INF Code should become binding and obligatory, although the United States view is that this Code should apply only to commercial vessels. The Marine Safety Committee has formally recommended that the Code, as amended, should become mandatory, and its text is being revised to reflect this change.
Shipboard Emergency Planning. The Marine Environment Protection Committee (MEPC) has developed Guidelines for Developing Shipboard Emergency Plans, which are designed to be added to the INF Code. The Committee recognized the need for consultation with coastal states in the development of these shipboard emergency plans. It is unclear, however, whether coastal nations will be fully informed of these plans, in order to develop coordinated shore-based emergency plans.
Prior Consultation. Although the Duty to Consult is one of the most venerable and well-established principles of international law, the shipping and nuclear nations are reluctant to acknowledge that they must consult with affected coastal nations regarding these ultrahazardous shipments. They argue that such consultation would interfere with their freedom of navigation and may assist terrorists who wish to attack the shipments.
These arguments are spurious. Consultation regarding route-selection and emergency-planning is in everyones best interest and can only serve to make these shipments safer for all concerned.
Proper international consultation has several elements. The first step is to disclose the nature of the project with its attendant risks and safety measures to those states that may be affected by the activity. Preparing an environmental impact assessment is a logical way to fulfill this obligation, and preparing such a document is required in any event by Articles 204-206 of the U.N. Law of the Sea Convention.  The second step is to listen to the concerns expressed by the affected nations along with their suggestions for reducing the risks. Suggestions that are helpful and constructive should of course be accepted and acted upon. If the shipping states reject a suggestion, they should explain why they have rejected it.
This procedure entails no risks and can only lead to safer voyages. The coastal states may have ideas regarding shipping lanes and weather patterns that can reduce the risks to these voyages. The areas of the Western Pacific are, for instance, subject to intense typhoons during certain times of the year. The coastal states understanding of the shipments and their cargoes can enable them to use their rescue equipment in a manner that is more likely to be helpful in an emergency. Preparing contingency plans for coastal emergencies can only be done after a full understanding of the risks involved.
A nation that is consulted about a project outside its borders that may affect it does not have a veto power over that project. But it does have the right to understand the risks it is being subjected to and to offer constructive advice to reduce those risks.
Prior Notification. The shipping and nuclear nations argue that prior notification is inconsistent with the freedom of navigation guaranteed under the U.N. Law of the Sea Convention. But in fact the shipping and nuclear nations currently do provide notification, at least to their close allies and the nations that they trust.  The Japanese stated on December 18, 1997, that it would announce the route for its 1998 shipment the day after it left France.  The British provided advance notification to the Panama Canal Commission regarding the 1998 shipment through the Canal.  The smaller Pacific and Caribbean nations have been, however, left in the dark regarding these shipments, creating a two-tiered situation whereby some affected nations are treated as second-class citizens without the right to learn what is going on. Obviously such a situation is unfair and unacceptable.
Prior notification is useful in reducing the alarm that results from unsubstantiated rumors as well as ensuring that contingency plans for dealing with coastal emergencies can be prepared in time. Prior notification for transboundary movement of hazardous materials is standard in a number of conventions, including the Basel Convention (see below), the Bamako Convention,  the IAEA Code of Practice on the International Transboundary Movement of Radioactive Waste,  and the IAEA Regulations for the Safe Transport of Radioactive Material.  The Irish proposal that would require prior notification must be given a closer examination.
Planning for Shore Emergencies and Creating Salvage Plans. These steps are obviously-desirable endeavors to reduce the risk of accident, but no systematic efforts have yet taken place, and the shipping and nuclear nations appear to be reluctant to undertake these important assignments.
Avoiding Particularly Sensitive Sea Areas. Little work has been done thus far to identify particularly sensitive sea areas that must be avoided by ships carrying ultrahazarous cargoes.
Creation of a Liability Regime. The IAEA Standing Committee on Liability for Nuclear Damage has recommended to the Agencys Board of Governors that a diplomatic conference be held to amend the 1963 Vienna Convention on Civil Liability for Nuclear Damage and to adopt a Convention on Supplementary Funding.  Liability remains an outstanding issue, which should be addressed both through the IMO and the IAEA.
Defects in the April 1998 Report of the IAEA Secretariat
The IAEA Reports treatment of the two most important international treaties is inadequate.
The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal.  The Report asserts at page 19 that the Basel Convention "does not address radioactive waste." In fact, Article 1(3) of this Convention states that "Wastes which, as a result of being radioactive, are subject to other international control systems, including international instruments, applying specifically to radioactive materials, are excluded from the scope of this convention." According to this language, the Basel Convention does apply to radioactive wastes until another "international control system" is developed to govern these materials. The report on the Basel Convention issued by U.S. Deputy Secretary of State Lawrence Eagleburger on May 13, 1991, contains the interesting comment that "[t]he Convention does not regulate movements of low-level radioactive wastes that are covered by other international control systems, such as the Code of Practice of the Internatinal Atomic Energy Agency (IAEA), to which the U.S. adheres...."  Because no adequate regime governs the high-level ultrahazardous cargoes now being transported around the world, the Basel Convention serves as the "default" standard by which to evaluate such shipments.
As the April 1998 IAEA Report acknowledges at page 19, "[t]he key feature of the [Basel] Convention is the prior informed consent procedure which requires the State of export to notify, or require the generator or exporter to notify, in writing, and receive the consent of the States of import and transit of the proposed movement of hazardous wastes or other wastes" (emphasis added). If this procedure is appropriate for the movement of every other type of hazardous waste, then it is certainly also appropriate for the sea shipment of ultrahazardous radioactive wastes.
The discussion of the 1982 U.N. Convention on the Law of the Sea in the April 1998 Report is also surprisingly inadequate. On pages 7 and 8, the Report refers to the provisions regarding innocent passage and transit passage, as well as those requiring states to protect the marine environment and allowing them to impose special regulations on "ships carrying nuclear or other inherently dangerous or noxious substances." But the Report ignores Articles 204-206, which require the preparation of environmental assessments, and it makes no attempt whatsoever to explain how the somewhat contradictory articles it cites should be interpreted and applied to sea shipments of ultrahazardous radioactive cargoes.
All parts of the Convention must be viewed as equally important and the duty to protect and preserve the marine environment is just as much an international norm as the rights to innocent and transit passage. The Convention recognizes in Articles 22 and 23 that ships carrying nuclear cargoes are different and do require special precautionary measures. The drafters of the Convention did not anticipate the current shipments of ultrahazardous radioactive cargoes, but the language in the Convention indicates that they recognized that a unique regime should apply to such shipments.
The articles in the Convention point in different directions. Because they seem somewhat contradictory, a new regime establishing clear rules must be developed to explain how they are to be reconciled. The recent practices of states provide some guidance, and it is instructive that the shipping and nuclear nations are now engaged in a process of consultation and notification with regard to many of the affected coastal states. They undertake this practice based on their view that it is the responsible and appropriate action to take, required by norms of international law and comity. It is also instructive to remember that the 1995 shipment of the Pacific Pintail did change its course and leave the exclusive economic zones of the South American countries after their strong protests.  A new international document recognizing the rights of the coastal states and the responsibilities of the shipping and nuclear states is needed to protect those concerned coastal states that are left out of the current informal consultative process.
Conclusion: The Need for a Comprehensive International Instrument on Sea Transport of Ultrahazardous Radioactive Cargoes
A close reading of the April 1998 Report of the IAEA Secretariat reveals that significant gaps exist in the international regulations governing sea shipments of ultrahazardous radioactive cargoes. Although concerned coastal nations have raised alarms about these shipments since they began in 1992, the international response has been halting and incomplete. This process should not be seen as an adversarial situation between the shipping and nuclear nations on the one hand and the concerned coastal states on the other. It is in everyones interest to protect the marine environment and coastal populations. The shippers do consult with and notify many nations, but their actions leave out other affected coastal and island countries.
International consensus has been reached on clarifying standards governing shipboard safety and transforming the INF Code into a binding document. But more is needed. If these shipments are to continue in the future, agreements must also be reached regarding the duty to prepare environmental impact assessments, the duty to consult with and notify affected states, the duty to prepare shore-emergency and salvage contingency plans, the duty to protect sensitive sea areas, and the liability regime that would govern damages resulting from accidents. These topics must be examined by appropriate IMO and IAEA bodies, and every effort must be taken to produce a comprehensive regime covering these important topics.
1. Ann MacLachlan, It's Official: Japan-Bound Waste Ship Will Move Through the Panama Canal, NuclearFuel, Jan. 26, 1998, at 5, 6.
2. Maritime Safety Committee, Matters Related to the INF Code, March 27, 1997, at 2 (MSC 68/15/Add.2 (statement attributed to United Kingdom delegation).
3. See generally Jon M. Van Dyke, Applying the Precautionary Principle to Ocean Shipments of Radioactive Materials, 27 Ocean Development & International Law 379 (1996).
4. Ecoceanos News, Simulacro de Accidente de Buque con Desechos Nucleares Ejercicios Navales de Chile y Argentina en Oceano Austral, Aug 10, 1998.
5. United Nations Law of the Sea Convention, Dec. 10, 1982, UN Doc. A/CONF.62/122 (1982), reprinted in 21 I.L.M. 1261 (1982).
6. Jean-Louis Ricaud, vice-president of the French nuclear company Cogema, has said that the shippers had "informed everybody who needs to be informed" about the 1998 shipment. MacLachlan, supra note 1, at 6.
7. U.S. State Department PM Press Guidance, Jan. 14, 1998, at 4.
8. Letter of John A. Mills, Secretary, Panama Canal Commission, to Paul Leventhal, Nuclear Control Institute, Jan. 28, 1998.
9. 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).
10. International Atomic Energy Agency, General Conference Resolution on Code of Practice on the International Transboundary Movement of Radioactive Waste, Sept. 21, 1990, 30 I.L.M. 556 (1991).
11. These regulations, first promulgated in 1961, and revised in 1964, 1967, 1973, 1985, and 1996, are discussed in pages 6-7 of the April 1998 report of the IAEA Secretariat. The latest version, approved by the IAEA Board of Governors in September 1996, has been published by the IAEA as "Safety Standards Series No. ST-1."
12. Maritime Safety Committee, Matters Related to the INF Code, April 28, 1997, at 1 (MSC 68/15/Add.3).
13. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, March 22, 1989, UNEP doc. IG.80/3 (1989), 28 I.L.M. 657 (1989).
14. Reprinted in Mariah Nash Leich, Contemporary Practice of the United States Relating to International Law, 85 Am. J. Int'l. Law 674, 675 (1991) (emphasis added).
15. See Van Dyke, supra note 3, at 386-87.
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