Applying the precautionary principle to ocean shipments of radioactive materials

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<ul><li><p>This article was downloaded by: [University of Leeds]On: 02 November 2014, At: 10:35Publisher: Taylor &amp; FrancisInforma Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House,37-41 Mortimer Street, London W1T 3JH, UK</p><p>Ocean Development &amp; International LawPublication details, including instructions for authors and subscription information:</p><p>Applying the precautionary principle to oceanshipments of radioactive materialsJon M. Van Dyke aa William S. Richardson School of Law , University of Hawaii at Manoa , 2515 Dole Street,Honolulu, Hawaii, 96822, USA E-mail:Published online: 16 Nov 2009.</p><p>To cite this article: Jon M. Van Dyke (1996) Applying the precautionary principle to ocean shipments of radioactive materials,Ocean Development &amp; International Law, 27:4, 379-397, DOI: 10.1080/00908329609546090</p><p>To link to this article:</p><p>PLEASE SCROLL DOWN FOR ARTICLE</p><p>Taylor &amp; Francis makes every effort to ensure the accuracy of all the information (the Content) containedin the publications on our platform. However, Taylor &amp; Francis, our agents, and our licensors make norepresentations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of theContent. Any opinions and views expressed in this publication are the opinions and views of the authors, andare not the views of or endorsed by Taylor &amp; Francis. The accuracy of the Content should not be relied upon andshould be independently verified with primary sources of information. Taylor and Francis shall not be liable forany losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoeveror howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use ofthe Content.</p><p>This article may be used for research, teaching, and private study purposes. Any substantial or systematicreproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in anyform to anyone is expressly forbidden. Terms &amp; Conditions of access and use can be found at</p><p></p></li><li><p>Applying the Precautionary Principle to OceanShipments of Radioactive Materials</p><p>JON M. VAN DYKE</p><p>William S. Richardson School of LawUniversity of Hawaii at ManoaHonolulu, Hawaii, USA</p><p>A new regime is emerging to govern the sea transport of ultrahazardous materialssuch as plutonium and high-level nuclear wastes. Building on the precautionaryprinciple and on provisions in the 1982 United Nations Law of the Sea Conventionand the 1989 Basel Convention on the Control of Transboundary Movements ofHazardous Wastes and Their Disposal, the International Atomic Energy Agency andthe International Maritime Organization are developing instruments that confirm therequirements of prior consultation on routes and emergencies and the preparationof environmental impact assessments. State practice, as reflected in the complaintsvoiced during the 1992 shipment of plutonium and the 1995 shipment of vitrifiedhigh-level wastes from France to Japan, and in the acquiescence of the vessels tothese complaints, indicates that the countries involved in and affected by these ship-ments already understand and accept the emergence of this new regime.</p><p>Keywords environmental protection, navigational freedoms, nuclear waste, pluto-nium, precautionary principle, radioactive materials, ultrahazardous cargoes</p><p>The transport of unusually hazardous radioactive materials by sea may become morecommon now that Japan appears to have committed itself to reprocessing its nuclearwastes and acquiring a stockpile of plutonium.1 These shipments from France to Japan(and back) present hazards that are of a different dimension from those presented by otherdangerous cargoes. Many countries along the route of these shipments have protestedvigorously against them, and some have explicitly cited the "precautionary principle" asthe norm of international law that provides a framework to regulate such transports.2</p><p>The precautionary principle has gained almost universal acceptance during the pastdecade as the basic rule that should govern activities that affect the ocean environment.3</p><p>This principle requires users of the ocean to exercise caution by undertaking relevantresearch, developing nonpolluting technologies, and avoiding activities that presentuncertain risks to the marine ecosystem. The precautionary principle lays down a setof specific responsibilities that must be met before shipments of unusually hazardousmaterials may be undertaken. This article will outline these responsibilities and willdemonstrate that they have not been complied with by the Japanese agencies in chargeof the shipments.</p><p>Received 4 March 1996; accepted 3 May 1996.The author would like to acknowledge the assistance of the Nuclear Control Institute in</p><p>supporting the research for this article, and the assistance of Karl Espaldon in organizing thesources and research materials.</p><p>Address correspondence to Professor Jon M. Van Dyke, William S. Richardson School ofLaw, University of Hawaii at Manoa, 2515 Dole Street, Honolulu, HI 96822, USA.</p><p>379</p><p>Ocean Development &amp; International Law, 27:379-397, 1996Copyright 1996 Taylor &amp; Francis</p><p>0090-8320/96 $12.00 + .00</p><p>Dow</p><p>nloa</p><p>ded </p><p>by [</p><p>Uni</p><p>vers</p><p>ity o</p><p>f L</p><p>eeds</p><p>] at</p><p> 10:</p><p>35 0</p><p>2 N</p><p>ovem</p><p>ber </p><p>2014</p></li><li><p>380 . J. M. Van Dyke</p><p>The Shipments</p><p>The controversial Japanese plutonium shipment began in November 1992, when arefitted freighter called the Akatsuki Maru carried 2,200 pounds (one metric ton) ofweapons-grade plutonium from France to Japan, traveling around the Cape of GoodHope, then going eastward south of Australia and New Zealand, and finally turningnorth through the Pacific Islands to Japan. More recently, a vessel registered in theUnited 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 weighing1,000 pounds. These solidified liquid residues are extremely hot, even under normalconditions. The ship traveled in the opposite direction, going southwest across theAtlantic to Cape Horn and then northwest across the Pacific, passing close to Hawaii,and finally reaching Rokkasho, Aomori Prefecture, Japan, on April 25, 1995.4 Then, onMay 25, 1995, the Pacific Sandpiper left Omaezaki Port in Shizuoka Prefecture, carry-ing spent nuclear fuel to France, presumably through the Panama Canal. Despite themany protests that have been raised,3 Japan has announced that these shipments willcontinue in increasing numbers over the coming decades.6</p><p>The Precautionary Principle</p><p>Although this principle has been phrased in many ways in recent agreements and com-mentaries,7 perhaps the phrasing in Principle 15 of the 1992 Rio Declaration on Envi-ronment and Development8 best reflects the international community's views on thisprinciple.</p><p>In order to protect the environment, the precautionary approach shall bewidely applied by States according to their capabilities. Where there are threatsof serious or irreversible damage, lack of full scientific certainty shall not beused as a reason for postponing cost-effective measures to prevent environ-mental degradation.'</p><p>What specific burdens does this principle impose on users of the ocean?10 It re-quires policymakers to be alert to risks of environmental damage, and the "greater thepossible harm, the more rigorous the requirements of alertness, precaution and effort.""It rejects the notion that the oceans have an infinite or even measurable ability to assimi-late wastes, and it instead recognizes that our knowledge about the ocean's ecosystemsmay remain incomplete and that policymakers must err on the side of protecting theenvironment.12 It certainly means that, at a minimum, a thorough evaluation of the envi-ronmental impacts must precede actions that may affect the marine environment. Allagree that it requires a vigorous pursuit of a research agenda in order to overcome theuncertainties that exist.13</p><p>Some commentators have explained the precautionary principle by emphasizing thatit shifts the burden of proof: "[Wjhen scientific information is in doubt, the party thatwishes to develop a new project or change the existing system has the burden of dem-onstrating that the proposed changes will not produce unacceptable adverse impacts onexisting resources and species."14 Others have suggested that the principle has an evenmore dynamic element, namely, that it requires all users of the ocean commons todevelop alternative nonpolluting technologies.15 These requirements are explained indetail in the sections that follow.</p><p>Dow</p><p>nloa</p><p>ded </p><p>by [</p><p>Uni</p><p>vers</p><p>ity o</p><p>f L</p><p>eeds</p><p>] at</p><p> 10:</p><p>35 0</p><p>2 N</p><p>ovem</p><p>ber </p><p>2014</p></li><li><p>Ocean Shipments of Radioactive Materials 381</p><p>The Duty to Prepare an Environmental Impact Assessment</p><p>This duty has been recognized in numerous recent treaties,16 and a treaty has been draftedthat spells out the procedures to be used in drafting such an assessment in the interna-tional context.17 The Organisation for Economic Co-operation and Development (OECD),of which Japan is a member, issued a document in 1985 "requiring that developmentalassistance projects and programs which could significantly affect the environment becomprehensively assessed from an environmental standpoint by Member States at theearliest possible stage."" With respect to the 1992 plutonium shipment, some limitedtesting and evaluation were undertaken by Japanese and U.S. agencies, but nothing likea formal environmental assessment was prepared." The Abercrombie amendment to theEnergy Policy Act of 1992 requires the U.S. Department of Energy to conduct a safetyanalysis of plutonium shipments by sea.20 A safety analysis was transmitted to Congressin February 1994, but it was characterized by members of the House of Representativesfrom Hawaii, Guam, American Samoa, Puerto Rico, and the U.S. Virgin Islands as"wholly inadequate."21</p><p>Japan has not had extensive experience in conducting environmental impact assess-ments, and its efforts in undertaking such efforts have not always been successful.22 Forits shipment of vitrified nuclear wastes, Japan's Science and Technology Agencyreleased on February 13, 1995, a short summary of a report entitled "EnvironmentalImpact Assessment of High Level Radioactive Waste Cask Sinking in the Sea" in re-sponse to demands that it conduct a full environmental assessment of the shipment.23</p><p>This report was commissioned by the Central Research Institute of Japan's Electric PowerIndustry in 1990 and consisted of a four-page summary of the industry's findings.24 TheScience and Technology Agency stated that it did not believe that a formal environ-mental impact assessment was required because, in its view, its transport is legitimate ifit complies with the standards of the International Atomic Energy Agency (IAEA), butthat it commissioned a study on this one issue nonetheless to "promote further under-standing."25 The conclusion of the study is that "even in the event of the worst accidentscenariothe sinking of all 28 canisters under the seathe effect to human healthwould be negligible."26 The report presents no detailed description of its methodologyor assumptions, nor does it analyze the accident that could present a much greaterdangera collision followed by an intense fire on the vessel.</p><p>In March 1996, the Japanese released another document, this one an eight-pagereport entitled "Environmental Impact Assessment of Radioactive Materials During SeaTransportationCase Study of Vitrified Wastes Released in the Ocean,"27 which wasundertaken by the Central Research Institute of Japan's Electric Power Industry. Again,the only scenario analyzed is a sinking, with other possibilities dismissed because "[i]t isextremely difficult to assume that a ship will crash into another ship and a fire breakout, and if it should happen, it is hard to predict that the ship will sink."28 Once thesescenarios are summarily dismissed as improbable, the assessment concludes that theexposure of the public to radioactive material as a result of a sinking would be far lowerthan the amount permitted by international standards.29</p><p>Edwin S. Lyman, a scientist at the Center for Energy and Environmental Studies atPrinceton University's School of Engineering and Applied Science, issued an analysis ofthe shipment, in which he concluded that the stainless steel used in the casks can weakenat extremely high temperatures and could rupture in an accident at sea.30 The alloy usedby France is susceptible to sensitization or weakening, and had previously been foundby U.S. experts to be unsafe for such high-temperature applications. Lyman character-</p><p>Dow</p><p>nloa</p><p>ded </p><p>by [</p><p>Uni</p><p>vers</p><p>ity o</p><p>f L</p><p>eeds</p><p>] at</p><p> 10:</p><p>35 0</p><p>2 N</p><p>ovem</p><p>ber </p><p>2014</p></li><li><p>382 J. M. Van Dyke</p><p>ized the decision to use this alloy as "a bad engineering decision . . . at best imprudent,and at worst irresponsible."31 The weakness in the cask "would increase the probabilityof a canister breach and radionuclide release in the event of mechanical or thermalshocks, such as a collision during sea transport, a hoist failure during loading or unload-ing of transport cases, or the rapid quenching of a hot fire."32 Lyman also concluded thatthe IAEA standards do not appear to provide an adequate measure of safety, and herecommended that a series of tests be undertaken to measure the.ability of the casks towithstand a shipboard fire following a collision."</p><p>Four months after the Pacific Pintail arrived in Japan, the government-owned com-pany, Japan Nuclear Fuel, Ltd., acknowledged that a small amount of cesium-137 hadbeen detected on the surface of one of the 28 transported canisters of vitrified radio-active waste.34 This announcement reinforces the view that the packaging proceduresmay not have been properly evaluated and gives credence to the perspective that nofurther shipments should occur until a thorough and independent environmental assess-ment has been completed.33</p><p>Tlie Duty to Conduct Research</p><p>Everyone agrees that research efforts to overcome uncertainties are essential.36 Com-mentators disagree on what type of research is required, with environmentalists empha-sizing that the research should focus on developing nonpolluting alternative technolo-gies, rather than on measuring the assimilative capacity of the oceans.37</p><p>The Duty to Notify</p><p>The duty to notify other countries of risks in order to enable them to prepare contingencyplans to deal with accidents and emergencies "is almost a fundamental principle of theinternational law of the environment, which is quite distinct from the duty of 'promptnotification' in c...</p></li></ul>


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