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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.
To cite this article: Jon M. Van Dyke (1996) Applying the precautionary principle to ocean shipments of radioactive materials,Ocean Development & International Law, 27:4, 379-397, DOI: 10.1080/00908329609546090
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Applying the Precautionary Principle to OceanShipments of Radioactive Materials
JON M. VAN DYKE
William S. Richardson School of LawUniversity of Hawaii at ManoaHonolulu, Hawaii, USA
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.
Keywords environmental protection, navigational freedoms, nuclear waste, pluto-nium, precautionary principle, radioactive materials, ultrahazardous cargoes
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
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
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.
Received 4 March 1996; accepted 3 May 1996.The author would like to acknowledge the assistance of the Nuclear Control Institute in
supporting the research for this article, and the assistance of Karl Espaldon in organizing thesources and research materials.
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. E-mail:[email protected]
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The Shipments
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
The Precautionary Principle
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.
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.'
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
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.
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The Duty to Prepare an Environmental Impact Assessment
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
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
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 accidentscenario—the sinking of all 28 canisters under the sea—the 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 greaterdanger—a collision followed by an intense fire on the vessel.
In March 1996, the Japanese released another document, this one an eight-pagereport entitled "Environmental Impact Assessment of Radioactive Materials During SeaTransportation—Case 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
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-
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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."
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
Tlie Duty to Conduct Research
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
The Duty to Notify
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 case of emergency."38 This duty is explicitly recognized and given contentby OECD documents39 and in the Basel Convention on the Control of TransboundaryMovements of Hazardous Wastes and Their Disposal,40 as well as the IAEA's Code ofPractice on the International Transboundary Movement of Radioactive Waste.41
The Duty to Consult
This duty is now widely recognized as a requirement when one nation plans an activitythat creates risks for other nations.42 The OECD explained these obligations in somedetail in two documents that were issued in 1988, in response to the Sandoz and Chernobylaccidents.43 The 1982 United Nations Law of the Sea Convention gives this dutyparticular teeth by requiring—in cases where nations can anticipate the possibility ofmarine pollution—4hat they "jointly develop and promote contingency plans for respond-ing to pollution incidents in the marine environment."44
Tlie Duty to Develop Alternative Techniques
The precautionary principle requires decision makers to move away from polluting ac-tivities, even if the scientific data remain cloudy regarding the specific damage imposedon the environment. The contracting parties to the Oslo Convention and the LondonDumping Convention, for instance, both agreed to phase out ocean incineration of wastes—
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even though the specific harm to the marine environment had not been established—because alternative technologies such as recycling and land-based treatments were avail-able.45 One commentator summarized this requirement as follows:
The precautionary concept does not insist that all risk of harm be avoided atall cost. Rather, it requires that society be willing to accept higher costs nowin order to avoid the possibility of environmental degradation in the future.46
The Duty to Mitigate All Reasonably Foreseeable Damage
This obligation follows directly from the precautionary principle and from the corenotions developed at Stockholm in 1972 and Rio de Janeiro in 1992. The shippingnation must act systematically to reduce all foreseeable damages. This responsibilityrequires it to explore all alternative nonpolluting technologies, alternatives to nuclearpower, alternatives to using plutonium in commercial nuclear plants, and—in particu-lar—alternatives to reprocessing spent nuclear fuel. Better encasements for the trans-ported radioactive materials must also be developed and used.
In the context of sea shipments of ultrahazardous cargoes, the important question iswhether this duty to mitigate is inconsistent with the freedom of navigation, which is acornerstone of the modem law of the sea. The apparent conflict can be resolved byunderstanding that the freedom of navigation is not an absolute freedom and is subject toqualifications in the 1982 Law of the Sea Convention and other international agreements.
Traditional Navigational Freedoms Do Not Applyto Ultrahazardous Cargoes
The 1982 Law of the Sea Convention guarantees freedom of navigation through the highseas,47 exclusive economic zones (EEZs),48 straits used for international navigation,49 andarchipelagic sea-lanes,50 and it permits the exercise of "innocent passage" through terri-torial seas51 and archipelagic waters.52 But it also imposes an obligation on all states toprotect and preserve the marine environment,53 to take measures to prevent pollution fromvessels by "preventing accidents and dealing with emergencies, ensuring the safety ofoperations at sea, preventing intentional and unintentional discharges, and regulating thedesign, construction, equipment, operation and manning of vessels,"54 and "to protect rareand fragile ecosystems as well as the habitat of depleted, threatened or endangered spe-cies."55 The Convention recognizes specific powers of coastal nations to regulate "shipscarrying nuclear or other inherently dangerous or noxious substances or materials"56 andships transiting through ice-covered areas.57 It recognizes a duty to notify other affectednations immediately in cases where "the marine environment is in imminent danger ofbeing damaged or has been damaged by pollution."58 The balance between these conflict-ing rights and duties has been given greater precision in more recent agreements.
The 1989 Basel Convention on the Control of Transboundary Movements of Haz-ardous Wastes and Their Disposal does not govern the movement of radioactive wastesif other international arrangements governing movements of these wastes are in place,59
but its approach to protecting the environment provides guidance on this topic. TheBasel Convention requires states transporting hazardous wastes to notify states throughwhich the waste is traveling, and it appears to allow the transit states to object to suchtransport.60 The Japanese government, however, filed a declaration to the Basel Conven-
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tion stating that it "understands" that the convention does not "require notice to or con-sent of any state for the mere passage of hazardous wastes on a vessel of a Party exer-cising its navigation rights under international law."" The Japanese declaration appearsto be directly in conflict with the convention itself. One commentator has said that"Article 6.4 of the [Basel] Convention does not allow the exporting State to authorize atransfrontier movement of hazardous waste without the previous written consent ofevery transit State party to the Convention."62 Article 4(12) does interject some ambigu-ity on this matter by reaffirming the "navigational rights and freedoms as provided forin international law,"63 but the specific requirements in Article 6(4) would normallybe thought to prevail over the general language in Article 4(12) according to normalmethods of interpretation.64 The Basel Convention also requires parties to take appropri-ate measures to reduce the movement of wastes "to the minimum consistent with theenvironmentally sound and efficient management of such wastes" and to conduct suchtransportation that is necessary "in a manner which will protect human health and theenvironment against the adverse effects which may result from,such movement."65
Another important recent agreement on this topic is the Code of Practice on theInternational Transboundary Movement of Radioactive Waste, adopted by resolution in1990 by the General Conference of the IAEA.66 Again, some tension is found betweenthe specific provisions and the general language. Principle 3 states that "[i]t is the sover-eign right of every State to prohibit the movement of radioactive waste into, from orthrough its territory." Principle 5 builds on this by saying that
[e]very State should take the appropriate steps necessary to ensure that,subject to the relevant norms of international law, the international trans-boundary movement of radioactive waste takes place only with the priornotification and consent of the sending, receiving and transit States in accor-dance with their respective laws and regulations.67
These explicit prohibitions are softened by earlier language that states that the code is"advisory"68 and a footnote that states:
Nothing in this Code prejudices or affects in any way the exercise by shipsand aircraft of all States of maritime and air navigation rights and freedomsunder customary international law, as reflected in the 1982 United NationsConvention on the Law of the Sea, and under other relevant internationallegal instruments.69
These provisions obviously can create some confusion in interpretation and applica-tion. Does the freedom of navigation have a superior status as compared to the duty toprotect the environment, or vice versa? Because both the Basel Convention and theRadioactive Waste Code of Practice refer to the Law of the Sea Convention, it is impor-tant to examine its Article 19 on the meaning of innocent practice and note that itincludes in its list of noninnocent activities subparagraph (h) "any act of wilful andserious pollution contrary to this Convention." As evidenced by their reactions discussedin the following section, it is obvious that many coastal nations view the consequencesof an accident involving a shipment of radioactive materials to be so catastrophic thatsuch shipments constitute wilful acts of serious pollution, even though the likelihood ofan accident that would actually cause such pollution may be small.70 Because of therisks created by such shipments, and because of the need to prepare contingency plans
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to deal with accidents and emergencies, a coastal nation would appear to be justified inrequiring notification prior to such shipments passing through its territorial sea and EEZor following a route that might result in the ship entering these waters to make anemergency port call.71
Another useful source to examine in trying to resolve the apparent ambiguities inthe Basel Convention and the IAEA Code of Practice is the 1991 Bamako Conventionon the Ban of the Import into Africa and the Control of Transboundary Movement andManagement of Hazardous Wastes Within Africa.72 This treaty explicitly applies toradioactive wastes (Article 2(2)), calls on parties "to adopt and implement the pre-ventive, precautionary approach to pollution problems" (Article 4(3)(f)), and requiresexporting states to "receive the written consent of the State of transit" before commenc-ing a shipment (Article 6(4)). The Bamako treaty specifically recognizes "the sover-eignty of States over their territorial sea" and their jurisdiction over their EEZs andcontinental shelves (Article 4(4)(c)), thus implying that permission must be obtained atleast for passage through a territorial sea.73 Even more directly on point is a EuropeanCommunity directive issued September 13, 1993, which requires any vessel carrying"dangerous or polluting" goods to notify the port of entry of the nature of the cargo andthe intended route of the vessel prior to its departure.74
The International Maritime Organization (IMO) promulgated a Code for the SafeCarriage of Irradiated Nuclear Fuel, plutonium and High-Level Radioactive Wastes inFlasks on Board Ships (usually called the INF Code) in 1993,75 which establishes certainphysical standards for such transports. The bodies developing this code recognized thatit neglected
several matters which require further consideration by IMO and IAEA andare complementary to the INF Code, such as emergency response plans,notification of coastal states about shipments of nuclear materials, positivetracking of vessels transporting INF 2 and INF 3 quantities, and the fittingof transport containers with a device to assist their location and recovery,should they be lost at sea.76
The IMO Assembly explicitly acknowledged these omissions when it adopted the INFCode in November 1993, and it urged the IMO's Maritime Safety Committee andMarine Environment Protection Committee to keep the code under regular review andpropose amendments as necessary.77 Pursuant to these instructions, the IMO held a spe-cial consultative meeting on March 4-6, 1996, and many of the delegations reiteratedthat further.work is needed to codify the responsibilities to notify, to consult with af-fected coastal states regarding routing, and to prepare emergency response plans.78
In any event, the recent practice79 of coastal nations has been to protest these ship-ments of ultrahazardous cargoes and to do everything possible to keep them awayfrom their coasts, in order to protect their environmental interests and coastal popula-tions and resources.
State Practice Requires Notification and ConsultationRegarding Shipments of Ultrahazardous Cargoes
Even before the recent Japanese shipments, a number of countries had imposed restrictionson the movement of ultrahazardous cargoes through their waters. J. Ashley Roach of the
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' U.S. State Department's Office of the Legal Adviser reports that Iran requires priorauthorization and the United Arab Emirates requires prior notification for nuclear-powered vessels and those carrying nuclear or other inherently dangerous or noxioussubstances.10 Laura Pineschi" identified legislation from Egypt82 and Oman83 that requiresprior permission before such shipments can pass through their waters. She also quotedlegislation from Haiti that prohibits from its territorial sea and EEZ "any vessel transport-ing wastes, refuse, residues or any other materials likely to endanger the health of thecountry's population and to pollute the marine, air and land environment,"84 and stated thatVenezuela, the Ivory Coast, and Canada also have legislation that restricts free movementof hazardous wastes through their waters.85 In 1992, the Philippines restricted the entry "ofsubstances and mixtures that present unreasonable risks or injury to health or to theenvironment" and prohibited "the entry, even in transit, of hazardous nuclear wastes intoPhilippine territory."86 At meetings of the IMO's Marine Environment Protection Com-mittee, Argentina, Brazil, and Chile have "reiterated their concern with the transportof nuclear substances through their territorial seas and 200-mile exclusive economiczones. . . ."87 Similarly, the South Pacific Forum (consisting of all of the independentisland nations of the Pacific) issued a communique at its July 1992 meeting reaffirming"the importance of Japan consulting fully with Forum nations regarding its future ship-ments."88 Even more significant is the recent declaration issued by the Kingdom of SaudiArabia when it deposited its ratification to the Law of the Sea Convention, stating thatnuclear-powered vessels and vessels carrying nuclear weapons must seek prior authoriza-tion before traveling through Saudi Arabia's territorial sea.89 Although other countries—notably the United States, the Soviet Union, and Italy—have protested against such re-strictions,90 these constraints do mark a trend and are consistent with the Basel Conven-tion and the IAEA Code of Practice, which emphasize transparency and require that thetransfer of hazardous wastes should not remain a secret.
Coastal nations have vigorously protested the Japanese transport of radioactivematerials, and the Japanese have responded by modifying the routing of their ships. Theefforts by the coastal nations to protect their populations and resources from a nuclearaccident, and Japan's willingness to acquiesce to these protective claims, contributes tothe development of customary international law. These claims and responses appear toestablish a recognition that the normal rights of unimpeded navigational transit do notapply in cases of ultrahazardous cargoes.
When the 1992 plutonium shipment was in transit, South Africa91 and Portugal92
explicitly requested that Japan stay out of their EEZs,'3 and in response to an inquiryfrom Australia, Japan stated that "in principle" its plutonium vessel would stay outsidethe 200-nautical-mile zone of all nations.94 A few days later, Japan modified this state-ment to say that "the ship could enter the 200-nautical-mile zone of some country underunavoidable circumstances or under conditions where avoiding to enter the zone is con-sidered impractical."95 The plutonium ship did try to avoid EEZs by traveling far fromthe South African coast and staying south of the EEZs of Australia and New Zealand.96
Finally, however, it did head north through the Pacific, and apparently traveled throughthe EEZs of some of the Pacific island nations.97
Similar and more dramatic protests were issued prior to and during the 1995 ship-ment of glassified nuclear wastes, and again the Japanese acquiesced to the protests. Anumber of the nations along the route—Brazil, Argentina,98 Chile, South Africa,99 Nauru,100
and Kiribati101—expressly banned the Pacific Pintail from their EEZs. On March 8,1995, the Brazilian Air Force closely monitored the vessel and demanded all naviga-tional details to ensure that the ship did not enter Brazil's EEZ.102 The bad weather
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encountered as the vessel approached Cape Horn apparently forced it to enter Argentina'sEEZ, despite Argentina's strong protest.103 After Chile demanded that the ship leaveChile's EEZ and sent its ships and aircraft to enforce the ban, the ship did modify itsroute and left the area.104 A resolution issued by the Chilean Maritime Authority105 citedthe precautionary principle and declared that the duty to protect the marine environmenttook precedence over the right to free navigation. The resolution also noted the severeweather conditions that exist at Cape Horn and stated that the means to address theunforeseeable consequences of a radioactive catastrophe did not exist. When the vesselwas rounding Cape Horn, it faced 30-foot waves and 60-mile-an-hour winds.106
A number of Caribbean countries also issued statements insisting that the radioactivematerials not be transported at all through the Caribbean Sea.107 Another significant groupof countries have prohibited the Pacific Pintail from passing through its territorial sea andarchipelagic waters. These countries include Antigua and Barbuda,108 Colombia,109 theDominican Republic,110 the Federated States of Micronesia,1" Fiji,"2 Indonesia,"3 thePhilippines,114 Puerto Rico,115 and Uruguay."6 The protests of the Caribbean nations ap-parently forced the vessel to abandon its preferred route, which was to go through thePanama Canal.117 The route ultimately traveled by the Pacific Pintail apparently avoidedall EEZs of coastal countries—except those of Argentina and Chile, which it was forcedto leave, and that of French Polynesia in the Pacific, which is governed by France.118
Because of the number and range of these protests—and, in particular, because thevessels carrying Japanese radioactive materials responded by changing course both intheir 1992 and 1995 shipments—it must be recognized that the shipments of ultra-hazardous cargoes cannot proceed under the normal regime of navigational freedomsand are, instead, governed by a much more restrictive regime. Notice and consultationmust precede such shipments, environmental assessments must be conducted and dis-seminated, and the routes to be used must be accepted by all affected parties as the leastdangerous of all possible routes.
Summary and Conclusions
The precautionary principle has been explicitly included in numerous recent treaties, hasbeen invoked repeatedly as an authoritative norm, and is now seen as a central guid-ing principle of environmental decision making. It requires states and others whoseactions may cause significant disruption to the marine environment to take a series ofsteps. As applied to the Japanese transport of radioactive materials, these steps includethe following:
1. A thorough environmental impact assessment must be prepared. This task re-quires opportunities for input from the affected coastal states and the public, and shouldinvolve an interdisciplinary analysis of the situation. The assessment should be dissemi-nated to all concerned parties.
2. The shipping nation must notify and consult with all concerned coastal countries.This process requires revealing to all affected countries the route a ship carrying anultrahazardous cargo is going to follow and working with these countries to developcontingency plans for emergencies.
3. The shipping nation must develop a research program to discover as much infor-mation as possible regarding the consequences of an accident involving the proposedshipments, and must disseminate the results of such research.
4. The shipping nation must act systematically to mitigate the risk of damage. Thisduty requires the nation to explore all alternative nonpolluting technologies. Alternatives
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to nuclear power—and the use of plutonium in commercial reactors—must be examinedin more detail. Alternatives to reprocessing spent nuclear fuel also must be examinedfurther. Better encasements for transporting the radioactive materials must be developedand used.
5. If shipments of ultrahazardous radioactive cargoes do continue, routings thatminimize the threats to populated areas and fragile ecosystems must be chosen. Thenavigational freedoms that normally govern commercial shipping do not apply to ultra-hazardous cargoes. This result has become clear in the language of the 1989 BaselConvention"9 and the 1990 IAEA Code of Practice on the Transboundary Movement ofRadioactive Waste.120 Affected coastal nations must be notified and consultations mustbe conducted to determine the least dangerous routing. The territorial seas and EEZs ofcoastal nations must be avoided unless no acceptable alternative routes are possible.
Recommendation. The IMO's Code for the Safe Carriage of Irradiated Nuclear Fuel,plutonium and High-Level Radioactive Wastes in Flasks on Board Ships must be amendedto include the following language: Every state must take the appropriate steps necessaryto ensure that the transboundary movement of nuclear fuel, plutonium, and high-levelradioactive wastes takes place only with the prior notification and consent of the send-ing, receiving, and transit states (including states whose territorial seas and adjacentEEZ resources are affected), following proper consultation with such affected states,including the preparation of an appropriate environmental impact assessment, full dis-cussion of routing, and preparation of emergency response procedures.
Notes
1. See generally Jon M. Van Dyke, "Sea Shipment of Japanese Plutonium under Inter-national Law," 24 Ocean Dev. & Int'l L 399 (1993); Andrew Pollack, "Japan Throws the Switchon Reactor," N.Y. Times, Aug. 30, 1995, at A6, col. 6 (nat'1 ed.).
2. See infra notes 90-117 and accompanying text. When a Chilean naval vessel protestedthe transit of the Pacific Pintail through Chile's EEZ, it said: "I inform you that the carrying ofyour radioactive material is a violation of the precaution[ary] principle . . . stated in the Rio deJaneiro declaration. . . ." Transcript of a radio conversation between the Pacific Pintail and theChilean navy (Mar. 20, 1995) (on file with author).
3. See infra notes 7-15 and accompanying text.4. 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 promisedthat the waste would be removed from Aomori after an intermediate storage of 30-50 years. Thegovernor finally allowed the ship to land after an ambiguous "assurance" from Japan's Scienceand Technology Agency, because he concluded that letting the deadly waste drift offshore wastoo dangerous. Citizens' Nuclear Information Center (Tokyo, Japan), Press Release (June 16,1995).
5. See infra notes 90-117 and accompanying text.6. 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 transportwould require between 120 and 1,200 shipments, depending on how many logs are loaded onto asingle ship. Citizens' Nuclear Information Center (Tokyo, Japan), Press Release (Apr. 17, 1995).
7. The precautionary principle is a logical corollary from the established international lawnorm that no state has the right to engage in activities within its borders that cause harm to otherstates. See, e.g., Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1905 (1941). In the TrailSmelter Arbitration case, the arbitrators required Canada to pay damages even though the causallink between the emissions in Canada and the damages remained somewhat uncertain. See
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Bernard A. Weintraub, "Science, International Environmental Regulation, and the PrecautionaryPrinciple: Setting Standards and Defining Terms," 1 N.Y.U. Envtl. L.J. 173, 182 (1992) (citing 3R.I.A.A. at 1912, 1921, 1922).
8. Rio Declaration on Environment and Development, June 14, 1992, UN Doc. A/CONF.151/5/Rev.1 (1992), 31 I.L.M. 874 (1992).
9. See also Agenda 21, ch. 17.22, in Report of the United Nations Conference on En-vironment and Development, Rio de Janeiro 3-14. 1992, UN Doc. A/CONF.151/26 (Vol. II)(1992):
States, in accordance with the provisions of the United Nations Convention on theLaw of the Sea on protection and preservation of the marine environment, committhemselves, in accordance with their policies, priorities and resources, to prevent,reduce and control degradation of the marine environment so as to maintain andimprove its life-support and productive capacities. To this end, it is necessary to:
(a) Apply preventive, precautionary and anticipatory approaches so as to avoiddegradation of the marine environment, as well as to reduce the risk of long-term orirreversible adverse effects upon it. . . .
10. Commentators have discussed whether the precautionary principle has been officiallyaccepted as a norm of customary international law formally binding on all nations. The principlehas been so widely included in recent treaties that it appears now to have that status. One com-mentator has stated that the Organisation for Economic Co-operation and Development (OECD)(of which Japan is a member) adopted the precautionary principle as early as 1979, and thattoday "modern international environmental law is largely precautionary." Harald Hohmann, Pre-cautionary Legal Duties and Principles of Modern International Environmental Law 141, 203,341-345 (1994) (citing the Declaration of Anticipatory Environmental Policies, adopted by theOECD environment ministers on May 8, 1979). See also Daniel Bodansky, "Remarks: NewDevelopments in International Environmental Law," 85 Am. Soc'y Int'l L. Proc. 413, 413 (1991)("Indeed, so frequent is its invocation that some commentators are even beginning to suggest thatthe precautionary principle is ripening into a norm of customary international law"); David Free-stone, "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 inter-national agenda, and the range and variety of international forums which have ex-plicitly accepted it within the recent past, are quite staggering. . . . The significanceof the repeated public acceptance and endorsement of principles by government rep-resentatives should not be underrated, particularly if, as is increasingly the case, thisis supported by binding measures explicitly implementing the principle [citing to the1989 action under the Oslo Convention to ban dumping of industrial wastes and theBamako Convention on the Ban of the Import into Africa and the Control of TransboundaryMovement and Management of Hazardous Wastes within Africa, Jan. 29, 1991, 30I.L.M. 773 (1991)].
Also relevant to its acceptance is the fact that it is impossible to find examples of nations reject-ing the precautionary principle or citing scientific uncertainty as a legitimate basis for action orinaction.
The specific content of the precautionary principle is, however, still controversial. For asummary of the recent treaties and documents using the term and an analysis of some of theunresolved issues, see James E. Hickey, Jr., and Vern R. Walker, "Refining the PrecautionaryPrinciple in International Environmental Law," 14 Va. Envtl. L.J. 423 (1995). See also GregoryD. Fullem, Comment, "The Precautionary Principle: Environmental Protection in the Face ofScientific Uncertainty," 31 Willamette L. Rev. 495 (1995); John M. Macdonald, "Appreciating thePrecautionary Principle As an Ethical Evolution in Ocean Management," 26 Ocean Dev. & Int'lL. 255 (1995).
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11. Freestone, supra note 10, at 31.12. Ellen Hey, "The Precautionary Concept in Environmental Policy and Law: Institutional-
izing Caution," 4 Geo. Int'l Envtl. L Rev. 303, 305 (1992). Some observers believe the precau-tionary principle to be essential because no amount of advanced research can predict the impactof 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 contract-ing parties to the Convention on the Prevention of Marine Pollution by Dumping of Wastes andOther Matter, Dec. 29, 1972, 26 U.S.T. 2403, 11 I.L.M. 1294 (1972) [hereinafter London Con-vention], to phase out all dumping of industrial wastes and prohibit dumping of low-level radio-active wastes; the 1982 decision of the 34th Annual Meeting of the International Whaling Com-mission to impose a moratorium on commercial whaling, noted in Kazuo Sumi, "The 'WhaleWar' Between Japan and the United States: Problems and Prospects," 17 Denv. J. Int'l L. &Pol'y 317, 319 (1989); the protection of endangered species under the Convention on Inter-national Trade in Endangered Species of Wild Fauna and Flora (CITES), Mar. 3, 1973, 27 U.S.T.1087, 12 I.L.M. 1085 (1973); the UN Genera! Assembly's ban on drift-net fishing, G.A. Res. 44/225 (1989) and Res. 45/197 (1990); and the Montreal Protocol on Substances That Deplete theOzone Layer, Sept. 16, 1987, 26 I.L.M. 1550 (1987). See Freestone, supra note 10, at 35-36;Robert Jay Wilder, "The Precautionary Principle and the Law of the Sea Convention," in Impli-cations of Entry into Force of the Law of the Sea Convention for U.S. Ocean Governance 50(Biliana Cicin-Sain and Katherine A. Leccese, eds., 1995).
13. Group of Economic Experts, OECD, Dealing with Uncertainty, Doc. ENV/EC/ECO(91)12(1991); Hey, supra note 12, at 311.
14. Jon M. Van Dyke, Durwood Zaelke, and Grant Hewison, "Perspectives on Environ-mental Harmony," in Freedom for the Seas in the 21st Century All (Jon M. Van Dyke, DurwoodZaelke, and Grant Hewison eds., 1993). This view is also found in the World Charter for Nature,Oct. 28, 1982, art. ll(b), G.A. Res. 37/7, UN G.A.O.R., 37th sess., Supp. No. 51, at 17, UNDoc. A/37/51 (1982), 22 I.L.M. 455 (1983):
Activities which are likely to pose a significant risk to nature shall be preceded byan exhaustive examination; their proponents shall demonstrate that expected benefitsout-weigh potential damage to nature, and where potential adverse effects are notfully understood, the activities should not proceed.
See also P. W. Birnie and Alan E. Boyle, International Law and the Environment 98 (1992)(concurring with this view in the context of the London Convention, supra note 12); Weintraub,supra note 7, at 204-207 (justifying the shifting of the burden of proof to the polluter as the"more efficient" approach); Macdonald, supra note 10, at 263-264 (discussing the burden ofproof issue). Another commentator has written that "[t]here is some evidence to suggest that thisinterpretation [that the precautionary principle shifts the burden of proof to those who are carry-ing out the activities] is gaining acceptance, even if it cannot yet be considered to be a rule ofgeneral application." Philippe Sands, "The 'Greening' of International Law: Emerging Principlesand Rules," 1 Ind. J. Global Legal Stud. 293, 301 (1994) (citing recent examples).
15. Hey, supra note 12, at 308 n.22 and 309-311.16. See generally Van Dyke, supra note 1, at 402-403; World Charter for Nature, supra
note 14, Principle 11 (c). One European commentator explained that an environmental impactassessment is "an almost indispensable means of realizing Stockholm Principle 21 [requiringcountries to avoid causing transboundary pollution to other countries], so that the legal signifi-cance of the EIA can be compared to that of the information and notification duty." Hohmann,supra note 10, at 201. The Stockholm Principles were promulgated by the United Nations Con-ference on the Human Environment on June 16, 1972, and are reprinted in 11 I.L.M. 1416, 1420(1972).
17. Convention on Environmental Impact Assessment in a Transboundary Context, Feb. 25,1991, 30 I.L.M. 800 (1991). This convention does not explicitly refer to shipments of ultrahazardous
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cargoes, but its descriptions of the appropriate procedures to follow in preparing an assessmentare universally applicable.
18. Hohmann, supra note 10, at 146 (citing Rec. C(85) 104 of 20 June 1985). OECD rec-ommendations require unanimity for adoption. According to Rule 19(b) of the OECD Rules ofProcedure, "[r]ecommendations shall be submitted to the Members for consideration, in order thatthey may, if they consider it opportune, provide for their implementation." Hohmann, supra note10, at 181 (quoting Hugo J. Hahn, "Organisation for Economic Co-Operation and Development,"5 EPIL 214, 220 (1983)). In practice, even though a recommendation may not be legally enforce-able in a tribunal, "each of the Member States can remind the deviant member of this recommen-dation, which was supported by all members after lengthy negotiations, and can insist uponappropriate conduct." Hohmann, supra note 10, at 181.
19. See Van Dyke, supra note 1, at 404-407.20. Energy Policy Act of 1992, Pub. L. No. 102-486, § 2904, 106 Stat. 2776, 3125-3126.21. Letter to President William Clinton signed by Representatives Neil Abercrombie
(Hawaii), Patsy T. Mink (Hawaii), Victor O. Frazer (U.S. Virgin Islands), Robert A. Underwood(Guam), Carlos A. Romero-Barcelo (Puerto Rico), and Eni F. H. Faleomavaega (AmericanSamoa) (Jan. 10, 1995); Pete Pichaske, "Lawmakers Want Waste Transit Delayed," HonoluluStar-Bulletin, Jan. 13, 1995, at A7, col. 2.
The Energy Policy Act of 1992, § 2904, 106 Stat. at 3125-3126, called for a safety analysisof the sea shipments of plutonium. In a letter to Representative Neil Abercrombie dated Septem-ber 24, 1993, Thomas P. Grumbly, assistant secretary for environmental restoration and waste
'management, Department of Energy, agreed to expand the scope of the study to include an evalu-ation of glassified high-level waste. Two months later, however, because of objections from theState Department, the Energy Department withdrew this commitment, and in February 1994,more than a year late, it released the original report to Congress. Letter from Thomas P. Grum-bly, Assistant Secretary for Environmental Restoration and Waste Management, Dep't of Energy,to Representative Neil Abercrombie (Feb. 8, 1994), transmitting the report entitled "Safety ofShipments of Plutonium by Sea," prepared by the Assistant Secretary for Environmental Restora-tion and Waste Management, Dep't of Energy (Sept. 1993).
22. For an analysis of Japan's efforts to assess its proposed dumping of low-level nuclearwastes in the ocean, see Jon M. Van Dyke, "Ocean Disposal of Nuclear Wastes," 12 MarinePol'y 82(1988).
23. "Japan's Arrogance and Irresponsibility Harshly Criticized," Nuke InfoTokyo (Citizens'Nuclear Information Center, Tokyo, Japan), Mar./Apr. 1995, at 3.
24. This assessment was not widely disseminated and was titled simply "Summary of Envi-ronmental Impact Assessment (Draft)" and marked "Confidential." It reports a measurement ofthe dose exposures to individuals and groups from two hypothetical sinkings and concludes thatthey are less than the exposures from natural radiation and hence are insignificant. Citizens'Nuclear Information Center (Tokyo, Japan), "Brief Record of Meeting with STA on February 13,1995."
25. "Japan's Arrogance," supra note 23, at 4.26. Id.27. Environmental Impact Assessment of Radioactive Materials During Sea Transportation—
Case Study of Vitrified Wastes Released in the Ocean (presented to the Special ConsultativeMeeting held by the International Maritime Organization on Mar. 4-6, 1996).
28. Id. at 1.29. Id. at 8.30. Edwin S. Lyman, "Sensitization of Stainless Steel Vitrified High-Level Waste Canisters
During Production" (Feb. 14, 1995); Edwin S. Lyman, "Safety Issues in the Sea Transport ofVitrified High-Level Radioactive Wastes to Japan" (Dec. 12, 1994).
31. Lyman, "Sensitization of Stainless Steel," supra note 30, at I.32. Id. at 3.33. Lyman, "Safety Issues," supra note 30. Lyman also questioned the use of elastomer for
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the O-ring seals, which "are the most vulnerable sites on the cask." Id. at x-xi. Elastomer sealsare prone to failure at temperatures above 230 degrees centigrade and can be damaged by highradiation fields.
34. "Cesium Contamination on HLW Canister Fuels Debate in Japan," Nucleonics Week,Aug. 24, 1995. The cesium could have contaminated the canister at the vitrification plant at LaHague, France, or could possibly have emerged "from 'sweating' of the canister during transport,meaning that one or more pinholes in it provided a channel for cesium inside to leak out." Id.The Japanese have rejected the latter possibility, arguing that ruthenium would also have beendetected if any leaks had occurred. Id.
35. Letter from Paul Leventhal, President, Nuclear Control Institute, to Kiyoshi Nozawa,President, Japan Nuclear Fuel Ltd. (Aug. 30, 1995).
36. Group of Economic Experts, OECD, supra note 13; Hey, supra note 12, at 311.37. Hey, supra note 12, at 311.38. Laura Pineschi, "The Transit of Ships Carrying Hazardous Wastes Through Foreign
Coastal Zones," in International Responsibility for Environmental Harm 299, 314 (F. Francioniand Tullio Scovazzi eds., 1991) (citing sources in support in note 55). This duty (and the duty toconsult) can also be seen as deriving from Stockholm Principle 21 (1972) (requiring countries toavoid causing transfrontier pollution to other countries and to areas beyond national jurisdiction).See Hohmann, supra note 10, at 197.
39. This duty was recognized as early as 1974 in the OECD Principles Concerning Trans-frontier Pollution, Rec. C(74)224 of 14 November 1974, discussed in Hohmann, supra note 10, at148-149.
40. Basel Convention on the Control of Transboundary Movements of Hazardous Wastesand Their Disposal, Mar. 22, 1989, art. 4(2)(f). UNEP Doc. IG.80/3 (1989), 28 I.L.M. 657 (1989)[hereinafter Basel Convention].
41. International Atomic Energy Agency, General Conference Resolution on Code of Prac-tice on the International Transboundary Movement of Radioactive Waste, Sept. 21, 1990, 30I.L.M. 556 (1991) [hereinafter IAEA Code of Practice].
42. See Van Dyke, supra note 1, at 400-402; see generally Frederic Kirgis, Prior Consulta-tion in International Law (1982). See also Principle 19 of the Rio Declaration on Environmentand Development, adopted June 14, 1992, 31 I.L.M. 876, 879 (1992): "States shall provide priortimely notification and relevant information to potentially affected States on activities that mayhave a significant adverse transboundary environmental effect and shall consult with those Statesat an early stage and in good faith."
43. Rec. C(88)84 of 8 July 1988, 28 I.L.M. 247 (1989), requires countries to exchangeinformation on planned hazardous installations that could cause transfrontier damage in the eventof an accident. Rec. C(88)85 of 8 July 1988, 28 I.L.M. 277 (1989), entitled "Provision ofInformation to the Public and Public Participation in Decision-Making Processes Related to thePrevention of, and Response to, Accidents Involving Hazardous Substances," assumes that per-sons potentially affected by transfrontier accidents have a right to know of the risks they arebeing subjected to, and to participate in the development of emergency measures to be taken inthe event of such an accident. Nuclear installations are, however, excluded from these specificrequirements. See generally Hohmann, supra note 10, at 149-150.
44. United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982,art. 199, UN Doc. A/CONF.62/122 (1982), 21 I.L.M. 1261, 1309 (1982) [hereinafter Law of theSea Convention].
45. Hey, supra note 12, at 309 n.25.46. Id. at 310.47. Law of the Sea Convention, supra note 44, art. 87.48. Id. art. 58(1).49. Id. arts. 34-44.50. Id. art. 53.51. Id. arts. 17-19.
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52. Id. art. 52.53. Id. art. 192.54. Id. art. 194(3)(b).55. Id. art. 194(5).56. Id. art. 22(2); see also art. 23.57. Id. art. 234.58. Id. art. 198. One commentator has observed that "[t]his rule might be applicable even
when a State becomes aware that a ship flying its flag and carrying harmful wastes is not com-plying with the safety regulations prescribed by Article 194." Pineschi, supra note 38, at 306.
59. Basel Convention, supra note 40, art. 1(3): "Wastes which, as a result of being radio-active, are subject to other international control systems, including international instruments,applying specifically to radioactive materials, are excluded from the scope of this convention."This language would appear to mean that the Basel Convention would apply to radioactive wastesif no international arrangements covering these wastes were in place. The report on the BaselConvention 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 theCode of Practice of the International Atomic Energy Agency (IAEA), to which the U.S. ad-heres. . . ." Reprinted in Marian Nash Leich, "Contemporary Practice of the United States Relat-ing to International Law," 85 Am. J. Int'l L. 674, 675 (1991) (emphasis added). See generallyBarbara Kwiat-kowska and Alfred Soons, "Plutonium Shipments—A Supplement," 25 OceanDev. & Int'l L 419 (1994).
60. Basel Convention, supra note 40, arts. 6(1), (4). Articles 4(2)(f) and (h) also requiredissemination of information regarding proposed transboundary movement of hazardous wastesto "the States concerned." See generally Pineschi, supra note 38, at 300-301.
61. Declaration made at the time of adoption of the Basel Convention, reprinted in Trans-boundary Movements and Disposal of Hazardous Wastes in International Law 32 (Barbara Kwiat-kowska and Alfred H. A. Soons eds., 1993). The Federal Republic of Germany issued a similar"understanding" stating that "nothing in this Convention shall be deemed to require the giving ofnotice to or the consent of any State for the passage of hazardous wastes on a vessel under theflag of a party exercising its right of innocent passage through the territorial sea or the freedomof navigation in an exclusive economic zone under international law." Multilateral Treaties De-posited with the Secretary General, Status as of 31 December 1989. at 857 (1990). The UnitedKingdom and Italy filed "declarations" using similar language. See Pineschi, supra note 38, at303-304.
Other nations noted a contrary interpretation. Portugal stated that it "requires notification ofany transboundary movement of hazardous wastes effected across the area under its nationaljurisdiction. . . ." Transboundary Movements and Disposal of Hazardous Wastes, supra, at 37.And Mexico, Uruguay, and Venezuela indicated in their declarations that they approved the pro-tection the convention provided to their coastal areas. Pineschi, supra note 38, at 304; TransboundaryMovements and Disposal of Hazardous Wastes, supra, at 37-38.
62. Pineschi, supra note 38, at 301.63. Basel Convention, supra note 40, art. 4(12).64. The debate has focused on what it means to be a "transit state." Article 2(12) of the
Basel Convention, supra note 40, defines "State of transit" as "any State, other than the State ofexport or import, through which a movement of hazardous wastes or other wastes is planned ortakes place." The United States has taken the position that this term refers only to situationswhere transport goes over the land territory or internal waters of another country. See Leich,supra note 59, at 676. The territorial sea of a nation is, however, part of its sovereign territoryunder Article 2(1) of the Law of the Sea Convention, supra note 44. it would be logical, there-fore, to view passage through the territorial sea as passage through a "transit state."
65. Basel Convention, supra note 40, art. 4(2)(d).66. IAEA Code of Practice, supra note 41. This code applies to "any material that contains
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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 foreseenSpent fuel which is not intended for disposal is not considered to be radioactive waste." Id.Annex I, sec. II, 30 I.L.M. at 562. Kwiatkowska and Soons, supra note 59, at 421, point out thatbecause of this language the 1992 plutonium shipment and the shipment of spent nuclear fuelfrom Japan to Europe for reprocessing do not fall directly under the IAEA Code of Practice. ThePacific Pintail's shipment of vitrified glass blocks of high-level wastes back to Japan would becovered by this Code of Practice because these wastes are "intended for disposal." The IAEACode of Practice is now being transformed into a proposed treaty, with the substantive provisionsrelevant to this article remaining the same. See Chairman's Working Draft (Annotated) of aConvention on the Safe Management of Radioactive Waste (presented to the Group of Experts ona Convention on the Safe Management of Radioactive Waste, Vienna, Dec. 4-8, 1995).
67. Kwiatkowska and Soons, supra note 59, at 420, have summarized the rules governingshipments of radioactive wastes as follows:
The IAEA code of practice and the respective regional instruments affirm, with re-spect to [transboundary movements of radioactive wastes], the general principles ofthe Basel Convention, including the critical regime of prior notification and priorinformed consent (PIC) that extend the scope of duties of notification, environmen-tal impact assessment, and consultation with respect to transboundary interference(or its risk) as the duties have evolved under existing customary law.
68. IAEA Code of Practice, supra note 41, Annex I, sec. I, 30 I.L.M. at 562.69. Id., 30 I.L.M. at 562 n.2.70. Pineschi, supra note 38, at 308, suggests that passage by ships carrying radioactive
materials would not be innocent if such passage did not comply with the "special precautionarymeasures established for such ships by international agreements," as required by Article 23 of theLaw of the Sea Convention, supra note 44.
71. Pineschi, supra note 38, at 309, supports this conclusion, with respect to foreign territo-rial seas. She finds it harder to support this conclusion for foreign EEZs because the Law of theSea Convention, supra note 44, does not have provisions comparable to Articles 22(2) and 23that apply to the EEZ.
72. Bamako Convention on the Ban of the Import into Africa and the Control of Trans-boundary Movement and Management of Hazardous Wastes within Africa, Jan. 29, 1991, 30I.L.M. 773 (1991), reprinted in Transboundary Movements and Disposal of Hazardous Wastes,supra note 61, at 912.
73. Article 4(4)(c) also, however, recognizes "navigational rights and freedoms as providedfor in international law," thus retaining some uncertainty in meaning.
74. Council Directive 93/75/EEC, 1993 O.J. (L 247) 19 (concerning minimum requirementsfor vessels bound for or leaving European Community ports and carrying dangerous or pollutinggoods).
75. IMO Resolution A.748(18) (Nov. 47 1993).76. International Maritime Organization, Main Conclusions of the Second Session of the
Joint IAEA/IMO/UNEP Working Group on the Safe Carriage of Irradiated Nuclear Fuel (INF)by Sea (26 to 30 April 1993), IMO Secretariat Note to the Sixty-Second Session of the MaritimeSafety Committee, Doc. MSC 62/16/1 (1993) (emphasis added).
77. See H. G. Hesse and C. N. Young, Code for the Safe Carriage of Irradiated NuclearFuel, Plutonium, and High-Level Radioactive Wastes in Flasks on Board Ships (INF Code) (1993)(quoting an IMO resolution).
78. This meeting was held pursuant to IMO Resolution A.790(19), adopted by the IMOAssembly Nov. 23, 1995, which instructed the special consultative meeting to address route plan-ning, prior notification, emergency response procedures, exclusion of these ships from "particu-larly sensitive sea areas," and other related issues. At the meeting, a joint declaration presentedby Argentina, Australia, Brazil, Chile, Colombia, Cuba, Indonesia, Ireland, Mexico, New Zealand,
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Solomon Islands, Spain, and Venezuela called for the adoption of an obligatory agreement ad-dressing these topics. The proceedings of this meeting are in preparation.
79. Subsequent state practice should be examined to interpret treaty provisions, according toArticle 31 of the Vienna Convention on the Law of Treaties, May 23, 1969, 8 I.L.M. 679, 691-692 (1969).
80. J. Ashley Roach, Navigation, Safety, and Prevention of Pollution from Ships in theStrait of Hormuz (paper delivered to the 30th Annual Conference of the Law of the Sea Institute,Al-Ain, United Arab Emirates, May 22, 1996) (citing United Nations, Practice of States 89;Limits in the Seas No. 114, at 11 (for Iran); and United Arab Emirates Federal Law No. 19 of1993, art. 5(4), reprinted in Law of the Sea Bull. No. 25, at 95 (1994)).
81. Pineschi, supra note 38, at 311-313.82. Declaration Concerning the Passage of Nuclear-Powered and Similar Ships Through the
Territorial Sea of Egypt, reprinted in Law of the Sea Bull. Special Issue 1, at 3 (1987).83. Declaration No. 3, on the Passage of Nuclear-Powered Ships and the Like Through
Omani Territorial Waters, reprinted in Law of the Sea Bull. No. 14, at 8 (1989).84. Note Verbale Dated 18 February 1988 from the Ministry of the Interior, Decentraliza-
tion, the General Police Force and the Civil Service, reprinted in Law of the Sea Bull. No. 11, at13 (1988).
85. Pineschi, supra note 38, at 312-313.86. From Statement of H. E. President Fidel V. Ramos on the Reported Plan to Transport
Plutonium Between France and Japan (Dec. 21, 1994) (citing Philippine Republic Act No. 6969of 1990, otherwise known as the Toxic Substances and Hazardous and Nuclear Wastes Act).
87. Kwiatkowska and Soons, supra note 59, at 423.88. Id. (citing UN Doc. A/48/359 (1993) at 12 and UN Doc. A/47/391 (1992) at 9, re-
printed in 8 International Organizations and the Law of the Sea: Documentary Handbook 74(1994)).
89. The text of this declaration is as follows:
In view of the danger posed by nuclear-powered vessels or vessels carrying nuclearmaterial or material of a similar nature, and with reference to article 22(2) of theConvention on the Law of the Sea concerning the right of the coastal State to re-strict the passage of such vessels to sea lanes designated by the coastal States withinits territorial sea, and with reference to article 23 of the Convention which requiressuch vessels to carry documents and observe special precautionary measures in ac-cordance with relevant international agreements, the Kingdom of Saudi Arabia, withthe above in mind, requires such vessels to obtain prior authorization in order forpassage through the territorial sea of the Kingdom until such time as those interna-tional agreements referred to in article 23 are framed and the Kingdom becomes aparty to them. Under all circumstances, the flag State of such vessels shall bear allresponsibilities and obligations for any damage resulting from the innocent passageof such vessels within the territorial sea of the Kingdom of Saudi Arabia.
90. Pineschi, supra note 38, at 313.91. Ruth Youngblood, "Japanese Secrecy over Plutonium Shipment Sparks Outcry," United
Press International, Sept. 27, 1992.92. "Lisbon Asks Tokyo to Keep Akatsuki Maru Away," Kyodo News Agency, Nov. 10,
1992.93. Similarly, just before the plutonium ship set sail, the heads of governments of the Carib-
bean island nations adopted a Declaration on Shipments of Plutonium saying that "no such ship-ments should traverse the Caribbean and that the Caribbean should be declared a nuclear-freezone for purposes of shipment, storing, or dumping of not only toxic wastes but also any radio-active or hazardous substances." Kwiatkowska and Soons, supra note 59, at 424-425 (citingCARICOM Press Release No. 89/1992).
94. Statement of Toichi Sakata, Director of the Japanese Science and Technology Agency's
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Nuclear Fuel Division, to participants in the Asia-Pacific Forum on Sea Shipments of JapanesePlutonium, Tokyo (Oct. 6, 1992).
95. Id.96. "Plutonium Ship to Pass West of Hawaii," Honolulu Star-Bulletin, Dec. 7, 1992, at 1,
col. 1.97. Id.98. Vice Foreign Minister Fernando Petrella stated to Greenpeace representatives on March
1, 1995, that Argentina had formally notified Japan that the Pacific Pintail would not be allowedentry into Argentina's 200-nautical-mile EEZ. On March 15, 1995, Argentina's Chamber of Deputiespassed a declaration charging the government with ensuring that the Japanese cargo be prohibitedfrom crossing Argentina's EEZ and the waters above its continental shelf, even where it extendsbeyond 200 nautical miles (copy on file with author).
99. Statement of South African Department of Environmental Affairs and Tourism (Mar.10, 1995) (statement prepared after an interagency meeting involving five ministries).
100. Republic of Nauru Dep't. of External Affairs, Note No. 9/1995 (Jan. 17, 1995).101. Reuters News Service, Mar. 22, 1995.102. Report from Greenpeace tracking vessel Captain Ulf Birgander and Campaigner Bas
Bruyne (Mar. 9, 1995). The Brazilian Foreign Ministry issued a statement on February 24, 1995,saying that it would not allow the Pacific Pintail within Brazilian waters "under any circum-stances." "Ship with Nuclear Waste Headed to Japan Enters Brazilian Waters: Greenpeace," AgenceFrance Presse, Mar. 6, 1995. In a March 10, 1995, letter sent to Paul Leventhal at the NuclearControl Institute in Washington, DC, Pauolo-Tarso Flecha de Lima, Brazilian ambassador to theUnited States, quoted a statement sent from Brazil to Japan as follows:
In reaffirming that no maritime coast or other areas under the Brazilian jurisdictioncan be exposed to the risk of possible accidents with a cargo vessel of this nature,the Brazilian Government considers that the entrance of that cargo vessel into theabove-mentioned regions of Brazilian jurisdiction is undesirable, under any circum-stances.
The Pacific Pintail did pass within 45 miles of St. Peter and St. Paul Rocks, which are Brazilianpossessions 450 miles off the Brazilian coasts. "Atomic Ship Breaks Ban, Enters Brazil Waters—Greenpeace," Reuters News Service, Mar. 6, 1995. Although Brazil has declared an EEZ aroundthese features, it is unclear whether such a claim is justified under Article 121 of the Law of theSea Convention, supra note 44.
103. "Chile to Protest Against British Nuclear Freighter," Deutsche Presse-Agentur, Mar.20, 1995.
104. Transcript of a radio conversation between the Pacific Pintail and the Chilean navy(Mar. 20, 1995) (on file with author). A few days earlier, Chile's acting foreign minister, MarianoFernandez, said: "We've got enough legal arguments to protect human health, ecology and theenvironment in the area to demand that this boat not pass through Chilean territorial waters." Seegenerally "Chile Threatens Force Against Nuke Freighter," Honolulu Star-Bulletin, Mar. 21, 1995,at A8, col. 1.
105. Resolution 12600/67, issued by the Chilean Maritime Authority, General Directory forthe Maritime Territory and Merchant Marine, DIRECTEMAR (Mar. 16, 1995).
106. "Nuclear Ship Braves Stormy Seas, Defies Chile Ban," Reuters News Service, Mar. 20,1995. Chilean navy commander-in-chief, Admiral Jorge Martinez Busch, said: 'These waters arenot to be navigated. I know of big-tonnage ships that have been damaged by the extraordinarilyrough sea in the area. Wind conditions are extraordinarily negative." Id. Chilean foreign minister,Miguel Insulza, said: "That is the worst route" for a ship with such a dangerous cargo, and thatthe Chilean government would issue a "very stern protest" to prevent any repetition of this ship-ment "Chile to Protest Against British Nuclear Freighter," supra note 103.
107. News Release issued by Owen S. Arthur, Chair of CARICOM and Prime Minister ofBarbados (Dec. 23, 1994); Statement issued by Brian Alleyne, Minister for External Affairs,
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Commonwealth of Dominica (Jan. 19, 1995); Statements issued by the Conseil General ofMartinique and the Conseil Municipal of Fort de France (capital of Martinique) (Jan. 24, 1995);Statement of Dr. Carlos A. Medina, Secretary for the Environment, Government of Honduras(Feb. 6, 1995); Press Release issued by Jamaica Ministry of Environment and Housing (Feb. 13,1995); Letter from G. F. Croes, Minister-President of Aruba, to H. Van Mierlo, Dutch Ministerof Foreign Affairs (Jan. 27, 1995).
108. Press Release issued by the Ministry of Foreign Affairs, Government of Antigua andBarbuda (Dec. 22, 1994).
109. Statement issued by Colombian Ministry of Foreign Affairs (Mar. 2, 1995) (stating thatthe "introduction into the national territory of nuclear waste and toxic wastes" is prohibited underthe terms of the national constitution).
110. Statement of Dominican Republic Vice President, Jacinto Paynando, head of govern-ment's Environmental Commission (Jan. 20, 1995); Statement of Dominican Republic PresidentJoaquin Balaguer (Feb. 10, 1995).
111. "Fiji Opposes Shipment of Radioactive Waste to Japan," Kyodo News International,Feb. 22, 1995.
112. Id.113. Irawan Abidan of the Indonesian Foreign Ministry informed the press on February 28,
1995, that the Japanese embassy had guaranteed that the Pacific Pintail would not enter Indone-sian or surrounding waters.
114. Statement of H. E. President Fidel V. Ramos on the Reported Plan to Transport Pluto-nium Between France and Japan (Dec. 21, 1994). This statement noted that the Philippines hadpreviously "refused to allow the Akatsuki Maru from entering and passing through Philippineterritory based on information that the ship was carrying highly radioactive processed plutoniumfrom France to Japan. We see no reason to change this policy."
115. Statement issued by Puerto Rico's Secretary of Natural and Environmental Resources(Dec. 28, 1994).
116. Statement issued by Uruguay's Vice-Minister of Foreign Affairs, Carlos Perez del Castillo(Mar 13, 1995).
117. "Atomic Ship Breaks Ban, Enters Brazil Waters—Greenpeace," supra note 102; "Pluto-nium Ship Will Not Go Through Panama Canal," Deutsche Presse-Agentur, Mar. 6, 1995.
118. "Nuclear Waste Ship Near French Polynesia," Agence France Presse, Apr. 3, 1995.119. Basel Convention, supra note 40.120. IAEA Code of Practice, supra note 41.
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