1/12/2000 Van Dyke-Greenberg Legal Analysis

The proposed transit of the British-vessel Pacific Swan through the Panama Canal on January 17, 2000 raises serious unresolved issues of international law and international security. Its cargo of 104 canisters each containing 1,000-pounds of vitrified radioactive waste destined for Japan is almost twice as large as any previous cargo of nuclear waste and is probably the most dangerous shipment ever to pass through the Canal.

Such a shipment always presents grave risks in case of an accident, but it presents even more serious danger of sabotage. If a collision and high-intensity fire occurred, the dispersal of airborne radioactive elements would cause enormous health problems for long periods, a serious-enough scenario. But perhaps more likely and more frightening would be an attempted assault on the ship as it passes through the narrow confines of the Canal by terrorists seeking to engage in radiological sabotage to render the Canal inoperable. The unimpeded boarding of the Pacific Swan by Greenpeace demonstrators as it passed through the Canal in February 1998 illustrates the dangers that exist.

The Panama Canal Regulations, which were drafted by the United States when it controlled the Canal and were then adopted by Panama when it assumed control, explicitly allow Canal authorities to prohibit ultrahazardous cargoes. The regulation entitled “Denial of passage to dangerous vessel” says that: “The Canal authorities may deny any vessel passage through the Canal when the character or condition of the cargo...is such as to endanger the structures pertaining to the Canal, or which might render the vessel liable to obstruct the Canal...” 35 C.F.R. sec. 103.2. Article III(1)(a) of the 1977 Neutrality Treaty between the United States and Panama also permits Panama to adopt regulations that are “necessary for safe navigation and efficient, sanitary operation of the Canal.” This Treaty emphasizes at several places the importance of keeping the Canal open for commerce and the necessity of providing sufficient security to ensure that it remains open.

International law also authorizes Panama to prohibit any cargo or vessel that presents an unacceptable risk to the Canal and its continued operations. The 1982 United Nations Law of the Sea Convention gives vessels an almost-absolute right to travel through international straits, but this same right does not exist for canals, which are human-made and always present unique problems of management, maintenance, financial integrity, and control. The right of a canal-operator to prohibit transit has been illustrated repeatedly by the refusal of the United States, when it controlled the Canal, to allow shipments of weapons-usable plutonium fuel to use this route.

Panama is now the sovereign owner of the Panama Canal, just as Egypt is the sovereign owner of the Suez Canal, and each sovereign owner has the right and power under international law to determine what shipments are appropriate for passage. This power should be exercised in a manner that is “just, equitable and reasonable,” nondiscriminatory, and neutral, as the 1977 Treaty requires, but it can be exercised nonetheless when necessary and appropriate to protect the security and continued operation of the Canal.

Article 206 of the 1982 Law of the Sea Convention require countries to prepare and disseminate environmental impact assessments whenever their activities “may cause substantial pollution of or significant and harmful changes to the marine environment.” (Panama, Japan, and the United Kingdom have all ratified the Law of the Sea Convention, and are thus bound by its terms.) An accident or attack involving the Pacific Swan would certainly cause “substantial pollution” and “harmful changes to the marine environment,” as well as enormous damage to the affected human populations. Although various reports have been prepared regarding the nature of the Pacific Swan’s cargo and examining certain accident scenarios, nothing that could be characterized as an environmental impact assessment has ever been prepared, and no analysis of an attack involving radiological sabotage has ever been attempted.

Particularly in light of the ease with which the Swan was boarded in 1998, it is imperative that a full environmental assessment be prepared and made available for public input. This undertaking is required both by international treaty law and by common sense. Until this obligation is met, the Pacific Swan and its ultrahazardous cargo should not be permitted to transit through the Panama Canal.

The assessment will allow Canal authorities to assess the risks and examine the options that are available. If the assessment recommends additional security requirements, the costs of such increased security should be charged to the shipper of the ultrahazarous cargo (i.e., Japan). After examining such an assessment, the Canal authorities may well conclude that the risks to the continued operation of the Canal and to the surrounding populations are too grave and that the Swan’s ultrahazardous cargo must travel through some other, less hazardous, route.

Jon Van Dyke is a professor of international law at the William S. Richardson School of Law, University of Hawai`i at Manoa. Eldon Greenberg is an attorney specializing in international law with Garvey, Schubert & Barer in Washington, D.C.

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