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Nielsen, Edward --- "Correspondence" [2000] MarStudies 5; (2000) 110 Maritime Studies 31

• CORRESPONDENCE
• A Response to ‘The Transportation of Nuclear Waste in the Pacific Region’ by Peter Heathcote, Maritime Studies, July/August 1999
• Endnotes

CORRESPONDENCE

A Response to ‘The Transportation of Nuclear Waste in the Pacific Region’ by Peter Heathcote, Maritime Studies, July/August 1999

1. Recent developments,^[1] if shipments of nuclear material are discontinued, may result in this debate becoming only of academic interest in the long term. However, in the short term there are still several waste shipments due under contract. In any case, the principles sought to be included in the INF Code^[2] are also applicable to the transport of all hazardous and noxious substances.^[3] Thus, the issues should be kept under continuing review and action maintained to achieve the objective of:

• a comprehensive and mandatory code(s) of practice which will secure, and be seen to ensure, safe ships, safe cargo arrangements, safe voyages and the protection of the environment in this trade;

• a credible liability and compensation regime, and one which will hold harmless the ‘innocent bystander coastal state’;^[4]

based on the ‘precautionary principle’, and ‘the polluter pays principle’.

2. In 1998, when the INF Code was augmented^[5] there were, in the opinion of some States, several unresolved matters to be addressed. The most important of these were:

• Additions to the Emergency Response Plan for action by the shore base organisation of the ship.

• The need for consultation with the concerned coastal state(s) on action following an accident or incident.

• The liability and compensation regime.^[6]

• Prior notification and consultation with concerned coastal States.^[7]

3. Needless to say, those States with nuclear and shipping interests did not share the opinion that the INF Code needed further augmentation. Therefore, so as not to jeopardise the process of making the amended INF Code mandatory, the need for further augmentation was not pressed in the run-up to the 20th IMO Assembly. It was a case of making incremental progress toward the desired objective, rather than hoping to achieve a perfect result in one swoop.

4. There were some discordant voices among those who strove at the IMO to upgrade the INF Code. There were those who advocated that ships carrying radioactive materials should be barred completely from certain areas, whereas others were content with higher safety standards, preparedness arrangements, post-incident notification and consultation and credible liability and compensation regimes. This difference of approach did not help in achieving the desired goal, and helped the nuclear interests to delay the project.

5. The concept of banning all radioactive material transportation – and eventually banning nuclear energy – is clearly impractical.^[8] The attempt to exclude ships unilaterally from certain sea areas, only because of the potential risks, may well fly in the face of international law, and has fuelled the strongest resistance from commercial and naval shipping interests – particularly the USA.^[9]

Small Island States (SIS) and Pacific Island Countries (PICs), and developing countries generally, have the difficult task of making industrial nations more aware and perceptive of their concerns and needs, this is particularly so in relation to environmental issues. To this end it is very necessary to be heard at international fora dealing with these matters. There is an urgent need to rebut the unqualified bland, assumptions that:

• economics justify the taking of risks;

• ‘risks’ should be accepted because of the ‘benefits’ which flow from activities, without considering who takes the ‘risk’ and who gains the ‘benefit’;

• the open ocean – the Pacific – is a suitable dumping repository for unwanted materials.

There is an uphill struggle ahead, but it is worth pursuing.

7. The alternatives proposed in Peter Heathcote’s article are very valid, but the reality is that not all are immediately available. Prior notification and consultation is currently a non-starter,^[10] and are probably less important than immediate notification and effective consultation with the concerned coastal States. It is important that those likely to be affected should know what is happening and, importantly, should have a voice in deciding what is to be done about it.

Although notification requirements are included in SOLAS and other pertinent instruments, the urgency of it is not sufficiently stressed, nor do these guarantee those affected a strong voice in the decision making process. This is very necessary to avoid commercial or political considerations^[11] taking precedence over the needs of safety and environmental protection.

The Shipboard Emergency and Preparedness Plan is very necessary, but there must also be a plan for action by the ship’s and cargo owners’ or consignors’ shore-based organisations. This plan should set out very clearly who does what and when – and should contain specific contact information. So far this has not been achieved. The nuclear organisations may well have plans for action, but those who may be adversely affected by an accident or incident do not know what these are.

The suspicion is that nothing will be done unless there is a serious risk of an adverse public reaction that might affect the immediate profitability of the operation. The problems of small developing countries such as PICs do not loom large in the thoughts of management or industrial enterprises. The message set out in paragraph 6 above has not yet taken root.

There have been welcome advances in the area of liability and compensation regimes. In the context of radioactive damage the 1997 Protocol to the 1963 Vienna Convention on civil liability for nuclear damage, and the related 1997 Convention on Supplementary Compensation for Nuclear Damage have gone some way towards what is needed. There is doubt if the amounts for compensation are adequate and there are two other points that need to be addressed:

• Liability for indirect damage, and future damage and remedial action from the dormant effects of radioactive materials (releases after a period of time when the containers fail).

• Relief from limitation of liability for the innocent bystander.^[12]

12. Of course, to benefit at all from the provisions of these instruments, a State must be a party to the Protocol and the Convention, and introduce necessary domestic legislation to make them applicable and effective. Unfortunately. so far, many Small Island States (SIS) – and PICs in particular – have not done so. SIS tend to shy away, from participation. This is a pity because there are important benefits to be gained, and contributions to be made to the whole culture of the IAEA.^[13]

So, although reasonable progress has been made in relation to the safety of nuclear material transport by sea, there is still much work to be done. There is also a need to apply the same precautionary reasoning to the transport of other hazardous and noxious substances, including oil.

Edward Nielsen

Director, Consultant

Grant Nielsen Ltd

17/19 Springfield Road

Wimbledon

London SW 19 7AL

Phone/Fax: +44 (0) (20) 8946 5552

email: edward.nielsen@virgin.net

Endnotes

^[1] Japan’s reluctance to accept suspect shipments - the BNFL scandal.

^[2] INF Code = the IMO’s International Code for the safe carriage of irradiated nuclear fuel, plutonium and highlevel radioactive waste in flask on board ships.

^[3] This aim was mentioned at the IMO, but was not stressed for fear of galvanising even greater resistance to the project.

^[4] Persons or States that are not principals or participating beneficiaries in an activity.

^[5] INF Code and Guidelines for Developing Shipboard Emergency plans…; 1998 Edition IMO. Assembly Resolutions: A853(20) and A854(20).

^[6] This is a matter for coordination with the IAEA, in the context of the 1997 Protocol, and Convention (Vienna) on nuclear damage.

^[7] This concept is strongly opposed by the USA and some other Shipping States, who see it as a dangerous derogation of the ‘freedom of navigation’ and ‘innocent passage’ rights under UNCLOS and customary international law. See also note 9. Thus, the demand for the requirement for prior notification and consultation must wait.

^[8] Whatever the merits, if any, of the arguments, they come 60 years too late.

^[9] See also note 7. The USA and some other States, who gave reluctant qualified support to the upgrading of the INF Code, would have opposed the project completely, and would probably have caused considerable delay to the project.

^[10] See notes 7 and 9, and the related texts.

^[11] The nuclear industry, supported by government agencies, vehemently asserted their commitment to safety and environmental protection regardless of commercial considerations. Unfortunately, recent disclosures cast some doubt on the reliability of these assertions.

^[12] See note 4.

^[13] See also paragraph 6 of the text.