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Captain Dr. Peter Heathcote[2]
This paper examines the vulnerability to terrorist attack, or hijacking and holding to ransom, a ship carrying nuclear fuels through the Pacific Region in light of the atrocities committed in New York and Washington on 11 September 2001.
The carriage of nuclear materials by sea has always attracted a certain amount of controversy. At the heart of the matter has been the question of whether the transportation of radioactive materials is really safe. What would happen if this radioactive material were to be released into the atmosphere or into the ocean? What would be the long-term effects on the environment and on human health or welfare?
Although the nuclear energy industry has been relatively ‘safe’ with only a few minor incidents (such as Three Mile Island[3]) and one major incident (such as the one at the Chernobyl nuclear power plant[4]), the fact is that nuclear contamination from an emission of radioactive substances creates a hazard to human wellbeing that exists many years into the future. The atomic bombs dropped on Hiroshima[5] and Nagasaki,[6] as well as the testing of nuclear weapons in various Pacific Island countries (PICs), have shown that the effect on humans is long lasting, irreversible and incurable. Therefore the fear of potential disaster from a major leak of radioactive material during its transportation by sea is real and reasonable.
It is not always possible to eliminate risk. Nevertheless, it is possible to minimise risk to a level that is acceptable to society. There has been some discussion about prohibiting vessels carrying nuclear materials from entering the Exclusive Economic Zones of certain States in the Pacific Ocean. However, the act of prohibiting a vessel that is maintaining ‘innocent passage’, even in the Territorial Sea, is contrary to the provisions of the United Nations Convention on the Law of the Sea, 1982. Coastal States would not be on particularly firm ground unless the ship was patently unsafe or unseaworthy as determined by a competent authority.[7] Furthermore, if prohibition were in fact a legitimate recourse, how would this be effected in practice? Surely, if the ship believed that it was within the Exclusive Economic Zone of any State, it should have the freedom to navigate those waters, providing it was not causing pollution or engaging in dumping wastes at sea.[8] Therefore it would not necessarily stop if apprehended. In any event, how does one stop a vessel carrying nuclear waste without using force and potentially damaging the ship and possibly releasing the cargo to atmosphere or ocean?
In an alternative initiative, Pacific Island States (with assistance from Australia and New Zealand) have been attempting to negotiate with the governments of France, Japan and the United Kingdom[9]
for compensation for any loss suffered from the contamination or perceived contamination from nuclear irradiation as a result of an incident. The fear is real, although the solution is elusive. The PICs claim that if a vessel carrying nuclear material suffers an incident, yet no radioactive material is released, the bad publicity resulting from the incident could result in economic damage. Tourists might decide to take their holidays elsewhere or fish processing companies and consumers might boycott fish from the region, thereby causing massive economic hardship to some or all the States in the region. To date the three ‘shipping States’ have rejected any responsibility for economic damage occasioned by perceived contamination (no release of radiation) resulting from an incident. This is not completely unexpected. The foundation of tort law in most jurisdictions in the world is that damage has to be suffered as a result of the actions of another, and that the damage had to be reasonably foreseeable to the tortfeasor. Furthermore, there has to be a causal link between the action of the defendant and the damage suffered by the plaintiff. The proposition by the PICs is outside the scope of both principles. There is virtually no causal link between a tourist’s belief that the sandy beaches are contaminated and the fact that a ship was stranded on the reef for four days, although no radioactive material escaped from the containers on board. Nor could one expect the shipowner to foresee that Pacific tuna would be boycotted by the sashimi market in Tokyo merely because his ship was in collision with longline fishing vessel in the waters of a PIC, but no damage occurred to the containers holding the nuclear cargo.
There is no doubt that vessels carrying nuclear material are as safe as they can be by present standards. Most of them are purpose built and all are equipped with state-of-the-art equipment with double, or even triple, redundancy. They comply with the requirements of the International Maritime Organization (IMO) Conventions such as SOLAS, MARPOL and the IMDG Code, as well as the International Atomic Energy Agency (IAEA) Regulations. These vessels are crewed by officers and ratings who are highly trained and qualified. The containers in which the radioactive material is stored are constructed and handled to the highest and most stringent international regulatory regimes.[10] The IMO International Code for the Safe Carriage of Packaged Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Waste on board Ships (INF Code) is specific to nuclear sea transport. It contains requirements for damage stability; fire protection; temperature control of cargo spaces; structural considerations; cargo securing arrangements; electrical supplies; radiological protection equipment; and management training and shipboard emergency plan.[11] Ships owned and operated by Pacific Nuclear Transport Limited are constructed with a double hull surrounding the five holds. The structure and subdivision of the hull is designed so that the vessel will stay afloat after it has sustained damage, which is in excess of the extent specified for Class 1 chemical tankers. The wing tank space is also structurally stiffened to prevent impact damage being sustained by the flasks within the holds in the event of collision with another vessel. For design purposes, the colliding vessel is assumed to be about 24,000 tonne displacement travelling at 15 knots. The containers in which the material is carried are purpose-built, and must meet stringent tests, including drop, fire and immersion trials to assure safety of people and the environment. These flasks are invariably mounted on frames, which are bolted down to permanent seats. The hatch covers are lifted and handled by an onboard crane and the radiation shield is extended forward of the bridge by concrete overlaid on the deck and beneath the hatch covers.[12] The safety record of these vessels seems to be immaculate.[13]
It is understood that there have been about 160 shipments between Europe and Japan over the last 30 years without any incident.
One of the most important routes for the carriage of nuclear materials at sea is from Europe to and from Japan.[14] Vessels have on occasion entered the Pacific Ocean from the South Atlantic via Cape Horn; via the Cape of Good Hope, the Indian Ocean and south of Australia,[15] and also through the Panama Canal.[16] Shipments by rail from power plants in Germany to nuclear facilities in France have been disrupted by protests from environmental groups[17] and Greenpeace has taken a great interest in the carriage of nuclear material in the Pacific, to the extent of following some vessels.[18] In fact, on 6 February 1998, Greenpeace activists boarded the Pacific Swan as it approached the Panama Canal and attached a banner to the mast. The activists and their banner were removed by security forces after the vessel entered the first Gatun lock.[19]
Whether vessels carrying nuclear waste enter the Pacific Ocean via Cape Horn, the Indian Ocean and the Tasman Sea, or the Panama Canal, they can spend as long as three weeks in the waters of the Pacific Island countries and territories.[20]
There is a justifiable reluctance to publicise the route that the vessel is going to take to minimise the disruption and safety hazards presented by protesters and activists. However, the States located close to the expected sea route are concerned at the lack of information provided to them as to the route, security or emergency planning. According to Greenpeace, although two freighters, which left Britain and France on 19 and 21 July 1999 respectively, carried a combined cargo of plutonium sufficient to construct nearly 100 nuclear bombs, the freighters had no armed military escort.[21]
The old adage that an ounce of prevention is worth a pound of cure seems appropriate in maintaining the safe passage of a vessel carrying a potentially dangerous cargo through the inadequately charted waters of the Pacific Ocean. Alternatives, such as requiring the submission of a detailed passage plan, an emergency response plan, the installation of satellite transponders, having a tug with sufficient bollard pull standing by to escort a vessel carrying nuclear material through the waters of PICs have been mooted earlier.[22] However, since certain elements of the depleted fuel rods can be used to manufacture nuclear weapons, by far the greatest danger to a cargo of nuclear waste or similar radioactive substance would seem to be as a result of acts of piracy, terrorism or hijacking for the purposes of extortion.[23]
Piracy has been resurrected into an art form in the last 10 to 15 years. The Malacca Straits and the waters around Indonesia, the Philippines and the South China Sea have become a haven for pirates. Some pirates kill crew members or abandon them in ship’s lifeboats, while the ships and their valuable cargoes are diverted to ports where security is negligible and corruption rife, and both the ship and its cargo are sold. Others merely rob the crew of valuables and steal the ship’s stores or equipment. In 1999, the number of acts of piracy and armed robbery against ships reported to IMO was 309, an increase of 47 per cent over the figure for 1998. According to many of the reports received by IMO, crews were often violently attacked by groups of five to ten people carrying guns. Two crew members of the ships were killed and eleven wounded during the reported incidents. It was also revealed that nine ships were hijacked, seven went missing and one was destroyed.[24] IMO admits that there is no easy answer to this problem. The most recent figures indicate that there was a 50 per cent increase in reported acts of piracy and armed robbery in 2000 over the equivalent figure for 1999. The number of reported incidents jumped from 37 to 112 in the Malacca Strait, from 51 to 109 in the Indian Ocean, from 16 to 29 in East Africa and from 29 to 41 in South America and the Caribbean. Perhaps the most startling statistic for 2000 was that 72 people were killed in such attacks, five were reported missing, and 129 people were injured. One ship was destroyed, two ships hijacked and three went missing. On three occasions the attackers used explosive devices.[25]
Few people will disagree that the world has changed forever after the atrocities perpetrated in New York and Washington on 11 September 2001. These awful events showed that a small radical group of zealots or extremists could hold the world to ransom and terrorise whole nations. It has been said that you cannot stop a suicide bomber from killing at least some people, himself included. However, the sheer audacity of the terrorists who coordinated and committed the acts in the United States shows the vulnerability of just about every human activity – transportation, political meeting, sporting event – or asset – nuclear power station, water supply, food crops – to the actions of determined, well-trained and generously-funded terrorists. It is conceivable that in future, the flight deck of passenger aircraft will not be accessible from the passenger cabin. The flight crew will have their own, separate entrance and self-contained facilities. Hijackers will not be able to take over the control of the aircraft. There will be increased video surveillance of all our activities at work, travelling and at leisure. Telecommunications, e-mail correspondence, banking transactions will be subject to covert monitoring in a renewed effort to prevent terrorists from getting organised in the first place.
It was recognised some years ago that the greatest threat to the Pacific Region from the vessels carrying nuclear waste was not potential grounding or collision leading to the accidental escape of radioactive material, but rather from hijacking by terrorists. Their motives might be varied: either with the intention of purveying the cargo to an emerging nuclear power or supposedly ‘rogue’ government, or more likely, to hold a country (or all countries) hostage for the payment of a large sum of money to finance some independence movement in exchange for not releasing the radioactive material to atmosphere or to the ocean. There are still a number of countries whose rulers do not espouse the values of the so-called Western World. These countries would like to see these values destroyed along with civilisation, as it appears to be developing. These rulers could initiate the hijacking of a vessel carrying nuclear waste as it made its way through the Pacific Ocean. Alternatively, there are numerous dissident groups, rebels, freedom fighters all over the world, seeking to take over their respective countries or to gain independence for ethnic or religious minorities. All these parties will have been watching the events of and since 11 September 2001. Perhaps their audacity will increase. Perhaps they will find zealots and fanatics prepared to give up their lives perpetrating acts of terrorism. In any event, the potential for a terrorist attack on a vessel carrying nuclear waste through the Pacific Ocean has increased significantly.
What can be done, in addition to the measures already advocated?[26] It is essential that any potential terrorist or hijacker not board the vessel. This will necessitate an exclusion zone around the vessel of perhaps five or even ten nautical miles. This in turn will mean that the vessel will have to have a military escort. It is suggested that there be a minimum of two patrol boats in the escort, so that one can investigate a potential decoy on the horizon, while the other can maintain close surveillance from a potential raider hiding in a ‘blind’ radar area – behind an island, for instance. Like the measures expected to be introduced in aircraft, if terrorists or hijackers do manage to board the vessel, there must be means of preventing their entry to the bridge, engine room or steering gear. Like watertight doors automatically controlled from the bridge, access to strategic areas of the ship must be shut off on control from the bridge, preventing boarders from taking over or tampering with essential ship’s functions. The bridge, engine room and steering gear would be turned into defensive citadels where the crew would be safe from harm and able to continue to operate the ship, even if raiders had been able to board. Thirdly, access to the cargo must be denied to terrorist boarders. This can also be controlled by robust, remotely operated doors from the deck or the all-weather passageways used for checking the flask securing arrangements. The deck crane should be permanently removed so that raiders cannot open the hatches and attempt to lift the cargo over the side. If the attackers are armed, and they will be, modifications must be made to the vessel that will protect the crew from harm or injury. If the attackers have grenades, explosives or other devices to damage the ship and the cargo, then little can be done. Hence the need to keep potential terrorists off the vessel. Passage through the Panama Canal represents a security risk and should be avoided. Passage through the Suez Canal has always been a security risk and has never been attempted. Passage plans should be filed with the governments of States adjacent to the planned route, but only on a need-to-know basis, so that they can provide additional surveillance within their own Territorial Sea for potential pirates, terrorists and hijackers.
Once one of these nuclear fuel carriers is taken over, it could be diverted by the hijackers to a port in a potential ‘rogue State’ where the cargo could be used for the manufacture of nuclear weapons. Alternatively, it could be diverted to a large centre of population. Here, if the hijackers are prepared to die for their cause, then the cargo could be released to atmosphere with the attendant radiation problems to a large population. In any event, as in a ransom case, the threat of release of irradiated material may enable the hijackers to refrain from doing this for a price – money, recognition, arms, safe sanctuary, etc.
This paper does not attempt to list the totality of measures that should be taken to prevent the world being held to ransom by hijackers of a nuclear fuel carrier. The purpose is rather to draw attention to the ease by which potential terrorists may be able to take over one of these vessels, and then hold the world to ransom in the pursuance of their own ends. After the events of 11 September 2001, the world must see that this scenario is not just a vague concern, but a real threat.
[1] The views expressed in this paper are strictly those of the author and do not represent the position of the Secretariat of the Pacific Community or any other regional or international organization.
[2] Regional Maritime Legal Advisor, Secretariat of the Pacific Community, Suva, Fiji
[3] The accident at the Three Mile Island Unit 2 nuclear power plant near Middletown, Pennsylvania, on 28 March 1979, was the most serious in US commercial nuclear power plant operating history, even though it led to no deaths or injuries to plant workers or members of the nearby community. It brought about sweeping changes involving emergency response planning, reactor operator training, human factors engineering, radiation protection, and many other areas of nuclear power plant operations. Source: www.nrc. gov/OPA/gmo/tip/tmi.htm
9/29/01.
[4] On 26 April, 1986, a major accident, determined to have been a reactivity (power increase) accident, occurred at Unit 4 of the nuclear power station in Chernobyl, Ukraine, in the former USSR. The accident destroyed the reactor and released massive amounts of radioactivity into the environment. After the accident, access to the area in an 18-mile radius around the plant was closed, except for persons requiring official access to the plant and to the immediate area for evaluating and dealing with the consequences of the accident and operation of undamaged units. The evacuated population numbered approximately 135,000. Thirty-one people died in the Chernobyl accident and its immediate aftermath, most in fighting the fires that ensued. There have been reports of additional deaths and delayed health effects could be extensive. Source: www.nrc.gov./OPA/gmo/tip/fschernobyl.htlm
[5] ‘Little Boy’ is the nickname given to the atomic bomb dropped on Hiroshima on 6 August 1945 from a B-29 bomber named Enola Gay. It exploded when it reached an altitude of 2,000 ft, destroying most of the houses and buildings within a 1.5-mile radius. The bomb generated an enormous amount of energy in terms of air pressure and heat. In addition, it generated a significant amount of radiation (Gamma ray and neutron) that subsequently caused devastating human injuries. It is believed that more than 140,000 people died by the end of the year, with the total number of people who have ultimately died due to the bomb estimated to be 200,000. Source: www.csi.ad.jp/ ABOMB/index.html
[6] Three days after the bomb was dropped on Hiroshima, the second atomic bomb called ‘Fat Man’ was dropped on Nagasaki. Though that amount of energy was significantly larger, the damage to the city of Nagasaki was slighter due to the geographic structure of the city. It is estimated that 50% died from blast wind, 35% from heat rays and 15% from radiation. Source: www-sdc.med.nagasaki-u.ac.jp/n50/disaster/Effect-E.html
The dead and injured were 118,661 and 79,130 in Hiroshima and 73,884 and 74,902 in Nagasaki. Source: www-sdc.med.nagasaki-u.ac.jp/n50/disaster/Deathnum.gif
[7] Peter Heathcote, ‘Transportation of nuclear waste in the Pacific’, Seaways, Journal of the Nautical Institute, December 1999, pp. 12-15.
[8] See the following Articles of the United Nations Convention on the Law of the Sea, 1982:
Article 58 – the right of freedom of navigation in the Exclusive Economic Zone; Article 210 – pollution by dumping; Article 211 – pollution from vessels.
[9] ‘The marine transport of reprocessed nuclear waste back to Japan is unavoidable as long as Japan relies on other countries to reprocess the spent fuel generated by its nuclear power plants.’ Hiroyuki Yoshida at www.greanpeace.org/%7Enuclear/transport/wasteshipment.html
[10] See Trevor Dixon, ‘Nuclear sea transport’, Seaways, Journal of the Nautical Institute, September 2001, pp. 7-10.
[11] ibid., p. 7.
[12] id., p. 9.
[13] Although a train with four flasks carrying German spent nuclear fuel had an accident about 500 metres from the French-German border on French territory. Three cars loaded with flasks derailed completely, without tipping over, during shunting manoeuvres in the yard at Apach. These flasks were on their way to Sellafield in the UK, via Dunkirk, where they were to be loaded into the European Shearwater. Source: www.greanpeace.org/%7Ecomms/no.nukes/transch.html
[14] In February 1995 a cargo of highly radioactive plutonium waste, generated by the La Hague reprocessing plant in France, was shipped on board the British-flagged ship, the Pacific Pintail, to Japan. See note 9 supra.
[15] On 23 January 1997 a controversial high level nuclear waste shipment departed the port of Cherbourg, France, bound for Japan. The nuclear waste shipment was prepared at La Hague plutonium ‘reprocessing’ factory and involved two casks holding 40 glass blocks of extremely radioactive nuclear waste. The route of the ship was South Africa, east of Australia, south Pacific and finally Japan. Source: www.greanpeace.org/ %7Ecomms/no.nukes/transch.html
and www.grean peace.org/%7Ecomms/no.nukes/maptrans.html
[16] Lloyd’s List, 18 July 2001, p. 24 and Lloyd’s List 28 July 2001, p. 3, as reported in Current Awareness Bulletin, vol. XIII, no 8, August 2001, published by the IMO Library Information Services – ‘The British-owned “Pacific Sandpiper” slipped through the Panama Canal unnoticed on the night of July 18, carrying a shipment of nuclear waste from Japan to the UK’.
[17] Greenpeace blocked a shipment of German spent nuclear fuel by train, for a week, near Hamburg. Source: www.greanpeace.org/%7Ecomms/no.nukes/ transch.html
[18] The Greenpeace website show photographs of protesters approaching the Pacific Teal using two rigid inflatables off the Japanese port of Mutsu Ogawara on 18 March 1997.
[19] www.greanpeace.org/%7Enuclear/transport/wasteship ment.html
[20] www.greenpeace.org/%7Ecomms/no.nukes/maptrans. html
[21] www.greanpeace.org/%7Enuclear/transport/mox99/ newsarchive.html
[22] Heathcote 1999, supra, note 5 at p. 14.
[23] ibid., p. 13.
[24] IMO News, 3: 2000, p. 15.
[25] IMO Secretariat, World Maritime Day 2001, IMO, Globalization and the Role of the Seafarer, a background paper issued by IMO and available on the IMO website, at p.14.
[26] Heathcote, supra, note 5 at pp. 14-15.
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