Beaufoy, Mark --- "Is the Law of the Sea Ready for Nuclear Leasing?" [2006] MqJlICEnvLaw 10; (2006) 3(2) Macquarie Journal of International and Comparative Environmental Law 91

• Is the Law of the Sea Ready for Nuclear Leasing?∗
• I Introduction
• II Freedom of The Seas and Innocent Passage
• III Reconsidering Navigational Freedoms
• IV Nuclear Power, Nuclear Waste and its Transport
• V What is Nuclear Leasing?
• VI History of ‘Nuclear Leasing’ in the US
• VII International Responses to the Transport of Nuclear Waste
• VIII UNCLOS
• IX IAEA Code
• X INF Code
• XI IMDG Code
• XII IAEA Regulations for the Safe Transport of Radioactive Material
• XIII Summary of International and Regional Modal Regulations or Agreements
• XIV Regional Responses to the Transport of Nuclear Waste
• XV Towards a Comprehensive International Legal Framework?
• XVI Conclusion

Is the Law of the Sea Ready for Nuclear Leasing?[∗]

MARK BEAUFOY^[**]

I Introduction

Global energy demands and climate change have resulted in a renewed focus on the nuclear power industry. In Australia, the world’s largest exporter of uranium without a nuclear power industry, the debate has turned to ‘nuclear leasing’.

The Australian Prime Minister’s Uranium Mining, Processing and Nuclear Energy Review (UMPNER) Taskforce recently delivered its report into Australia’s role in the nuclear fuel cycle.^[1] The report found that with policy and regulatory support and the introduction of a price on carbon, nuclear power could form a significant part of Australia’s energy mix in the next 10 to 15 years. Although ‘nuclear leasing’ was not specifically referred to in the Taskforce’s terms of reference, it is relevant to ‘the potential for establishing other steps in the nuclear fuel cycle in Australia, such as fuel enrichment, fabrication and reprocessing’, which was part of the terms of reference and was addressed by submitters and in the draft report. The issues paper which preceded the publication of the report included in the consideration of ‘non-proliferation issues’ the question of ‘how will proposals to limit the spread of sensitive nuclear technology (including fuel leasing and fuel supply assurances) affect the development of the nuclear fuel cycle in Australia and our region?’.^[2]

Nuclear leasing is a key component of the US-sponsored Global Nuclear Energy Partnership (GNEP). It is part of President Bush’s plan to accelerate the development of nuclear technologies in the US and reduce America’s dependence on fossil fuels.^[3] Nuclear leasing is a ‘cradle-to-grave’ approach to the nuclear fuel cycle which involves ‘fuel supplier nations’ (such as Australia) exporting uranium to ‘user nations’ and then receiving back used nuclear waste for recycling and disposal. This is in addition to uranium enrichment and power generation activities which fuel supplier nations may wish to conduct themselves.

This article examines the current international law and governance relevant to the transport of nuclear waste and asks the question whether the Law of the Sea (the United Nations Convention on Law of the Sea (UNCLOS)^[4] and related treaties and governance mechanisms relevant to this issue) is ready for nuclear leasing and a potentially significant increase in the transport of nuclear waste by sea. If the Pacific Ocean does become a ‘nuclear highway’ as some have feared,^[5] are international laws robust enough, and governance mechanisms adequate, to deal with an incident or accident involving a ship carrying spent nuclear fuel or radioactive waste?

The international regime for the non-proliferation of nuclear weapons was described by a former director general of the International Atomic Energy Agency (IAEA) as ‘a quantum leap changing the perception of unlimited national sovereignty – a consequence of the technical quantum leap in destructive power promoted by the discovery of nuclear energy’.^[6] Similarly, the developing international regime relating to the marine transport of nuclear waste has been significant in changing the perception of unlimited navigational freedoms in the territorial seas, exclusive economic zones (EEZ) and on the high seas. In some cases, national sovereignty has been vigorously asserted by individual states to prevent the marine transport of nuclear waste in state waters.

This article examines the historical and ongoing conflict in the law of the sea between navigational freedom and sovereignty, arising from environmental and security concerns. It considers the increasing limitations on navigational freedom as a consequence of these concerns, including those related to the transport of nuclear waste by sea.

It appears to this author that, to date, the focus of the international nuclear and maritime agencies and the shipping industry involved in the maritime shipment of nuclear materials, has been on the development of standards, codes and guidelines particularly in the area of packages, radiation protection and purpose-built vessels. While this has no doubt contributed to securing the industry an incident free record, if the number of shipments grows and new participants enter the market for such shipments, a more transparent and enforceable environmental protection regime is likely to be required and demanded by affected states. Alternatively, we may see an increase in public concern and bans being placed on such shipments entering state territorial waters and exclusive economic zones.

It is argued that the opportunity to consolidate existing international marine environmental law and governance on the topic should be taken now (as the nuclear industry is set to grow rapidly on a global scale), to create a transparent and binding international legal regime for the transport of nuclear waste by sea. This should not be done in an ad hoc way by individual states or groups of states, which has been the typical response to date resulting in the proliferation of a multiplicity of local and regional legal responses. Further, the development of a comprehensive international regime to deal with this issue should not occur as a response to an incident (such as the sinking or break up of a ship carrying a nuclear waste cargo). This was (regrettably) the trigger for action to develop a comprehensive legal framework relating to marine pollution, but only after significant environmental damage was already done by major oil spills in the 1960s, 70s and 80s (such as the Torrey Canyon, the Amoco Cadiz and the Exxon Valdez incidents) which assisted in the development of international law relating to marine pollution.

II Freedom of The Seas and Innocent Passage

The history of the modern international law of the sea is ‘written in the “continual conflict between two opposing, yet complementary, fundamental principles – territorial sovereignty and the freedom of the high seas’”.^[7] Brown has explained this history as follows:

Certainly at most times in the development of the modern system and in most parts of the oceans, there has been a geographical area at one extreme where the freedom of the high seas was the predominant principle and other areas at the other extreme, where the predominant principle was that of sovereignty. The boundary between the two areas has never been a stable one, however. Some historical periods are characterized by an aggressive, expansionary sovereignty, with more or less exclusive authority being claimed over vast areas of the oceans. At other times, the national interest is perceived as being best served by minimizing the outward reach of national sovereignty, thus maximizing the geographical scope of the freedom of the high seas.^[8]

The doctrine of the freedom of the seas is said to arise from the work of Dutch jurist, Hugo Grotius, in a work published in 1609 under the title Mare Liberum or ‘The Free Sea’. As Anand has noted:

Grotius wrote and published Mare Liberum in order to defend his country’s right to navigate in the Indian Ocean and other Eastern seas and to trade with India and the East Indies. Spain and Portugal (then part of the Spanish Empire) asserted a commercial monopoly as well as political domination over those trade routes.^[9]

Grotius’s Mare Liberum was based on two propositions:

The first, that that which cannot be occupied, or which never has been occupied, cannot be the property of any one, because all property has arisen from occupation. The second, that which has been so constituted by nature that although serving some one person it still suffices for the use of all other persons, is today and ought in perpetuity to remain in the same condition as when it was first created by nature (that is, the air and the sea).^[10]

Despite examples of the practice and principles of freedom of the seas in Roman law and Asian- state practices, on which Grotius relied in support of his doctrine of freedom of the seas, there were equally examples of attempts to enclose, claim and dominate the oceans from Spain and Portugal in the 1500s, through to claims by England arising in the context of the Anglo-Dutch and Anglo-French rivalries and wars. In 1635, British scholar John Selden challenged Grotius’ doctrine of freedom of the seas and supported the dominion of the British Seas in his work Mare Clausum, sue de Dominio Maris Libri Duo (The Closed Sea or Two Books Concerning Rule Over the Sea).^[11] Even Grotius interpreted the principles of freedom of the seas flexibly when defending the monopoly of the Dutch East India Company which he represented.^[12]

By the late 1800s most countries claimed a territorial sea extending to 3 miles, originally based on the shooting distance of a land-based cannon. The 3-mile limit was the norm until after World War II when US President Truman made two proclamations which were influential in the development of the international law of the sea. In the first, Truman proclaimed that all mineral resources on and underneath the seabed on the continental shelf of the United States were the property of the US government. In the second, Truman reserved the right to proclaim conservation zones for fish, but stopped short of proclaiming exclusive rights of extraction for the United States.^[13] Other claims were made by countries more dependent on fish resources (such as Iceland, Argentina, Panama, Mexico, Chile, Peru and Ecuador) for the control of fisheries in the waters of the continental shelf (then defined to mean the water column of the extension of land mass out to a depth of 200 meters). To incorporate these resources these countries claimed jurisdiction extending 200 nautical miles off the coast, which was later to develop into the 200-mile exclusive economic zone (EEZ).^[14]

UNCLOS, concluded in 1982, was not supported by all states participating in the United Nations Law of the Sea Conferences (1958, 1960, 1972-1982), including the United States which voted against the Convention largely because of the rules governing deep-seabed mining. UNCLOS formally became international law in 1994, upon being ratified by the required minimum of 60 states. To date, UNCLOS has been ratified by 149 states.^[15]

Under the 1958 Geneva Convention on the High Seas, the term ‘high seas’ was defined to mean ‘all parts of the sea that are not included in the territorial sea or in the internal waters of a State’ (Article 1 Geneva Convention on the High Seas). Under UNCLOS, Part VII on the High Seas applies to ‘all parts of the sea that are not included in the exclusive economic zone, in the territorial sea, or in the internal waters of a State, or in the archipelagic waters of an archipelagic State’. Although some of the traditional freedoms of the high seas continue to be protected to some extent in the EEZ, the exclusion of the 200-mile EEZ and archipelagic waters marked a historically important shift in the balance between the principles of sovereignty and the freedom of the high seas.

UNCLOS provides protection for navigational freedoms on the high seas,^[16] innocent passage through territorial seas,^[17] transit passage through international straits^[18] and navigation through the exclusive economic zone.^[19] States also have an obligation to protect and preserve the marine environment^[20] which is accompanied by a specific liability:

States are responsible for the fulfillment of their international obligations concerning the protection and preservation of the marine environment and shall be liable in accordance with international law.^[21]

These obligations have emerged as a ‘countervailing force’ against the freedom of navigation, which has throughout its development been set against other rights and uses of the ocean.^[22] Freedom of the high seas is exercised under the conditions laid down by the Convention, and by other rules of international law, with due regard to the interests of other states.^[23] Coastal states have jurisdiction in their exclusive economic zones for the purpose of the protection and preservation of the marine environment,^[24] which, as discussed below, has been used effectively to limit navigational freedoms for ships carrying nuclear cargoes.

III Reconsidering Navigational Freedoms

Van Dyke, the author of a number of papers on restrictions to navigational freedoms,^[25] has concluded:

The freedoms of navigation that have dominated the law of the sea during the past several centuries are disappearing in the face of competing claims regarding environmental protection and security needs.^[26]

Environmental restrictions, and following the terrorist attacks on the United States in September 2001, security restrictions, on navigational freedoms are becoming increasingly common. Van Dyke has provided a number of examples of limitations based on the environmental protection requirements of states which are referred to below.^[27] It is beyond the scope of this article to consider the security-based limitations on navigational freedoms which have been considered in detail by Van Dyke elsewhere.^[28]

The European maritime states have restricted passage based on the nature of the ship and cargo. The breakup of the oil tanker Prestige off the coast of Spain in November 2002 is thought to have been the ‘defining moment’ that changed perceptions and led to increased environmental restrictions on navigational freedom.^[29] Spain refused to permit the crippled tanker to come into a Spanish port for ‘safe haven’ and then, when the vessel was towed out into the open ocean, it broke apart causing environmental damage to coasts of Spain, Portugal and France. As a consequence of this incident, Van Dyke notes that France and Spain (and later Portugal and Morocco) required that all oil tankers travelling through these two countries EEZs had to provide:

advance notice to the coastal countries about their cargo, destination, flag and operators … all single-hulled tankers more than 15 years old traveling through the EEZs of Spain and France were subject to spot inspections by coastal maritime authorities while in the adjacent EEZs and would be expelled from the EEZs if they are determined, after inspection, to be not seaworthy.^[30]

The European Union later banned large single-hulled tankers carrying heavy grade oil from coming into any European Ports.^[31] Similar restrictions have been imposed relating to the release of ballast waters and the US placed restrictions on navigational freedom (which were approved by the International Maritime Organisation (IMO)) to avoid collisions with the Northern Right Whale on the northeast and southeast coasts of the United States.^[32]

In February 2004 the United States decided to abandon its plan to ship a 770-ton decommissioned nuclear reactor from the San Onofre Edison nuclear plant in Southern California around South America to South Carolina for burial. This decision was largely due to restrictions imposed by states along its proposed sea passage.^[33] These legal obstacles included Chile’s Law for Nuclear Safety which had been modified in October 2002 to require prior authorization by the Chilean government for any transport of ‘nuclear substances’ or ‘radioactive materials’ through Chile’s EEZ. Such authorisation required that the transporter guarantee that the shipments will ‘keep the environment free of contamination’ and required information to be provided regarding the date of the shipment, the characteristics of the load and the safety and contingency measures that were to be used’.^[34]

Further, according to Van Dyke, numerous states have banned shipments of hazardous nuclear cargoes from entering or transiting through their exclusive economic zones.^[35] For example, a decision of an Argentinean court in January 2004 prohibited the passage of the reactor through Argentina’s EEZ. After this decision, Argentine officials stated that if the shipment passed through Argentina’s EEZ the load would be intercepted by the military and escorted out of the nation’s territorial waters.^[36] Van Dyke has documented the following further examples of unilateral state actions to block nuclear shipments:

In 1992 … South Africa and Portugal explicitly requested that Japan’s shipment of plutonium stay out of their EEZs and in response to an inquiry from Australia, Japan stated that ‘in principle’ the ship would stay outside the 200-nautical mile zone of all nations. In 1995, Brazil, Argentina, Chile, South Africa, Nauru and Kiribati all expressly banned the British nuclear cargo ship Pacific Pintail, which was carrying twenty-eight 1000-poind logs of high-level nuclear waste in vitrified glass blocks, from entering their EEZs, and Chile sent its ships and aircraft to force the ship out of its EEZ. In 1999, New Zealand issued a strong statement protesting against these shipments and stating that they should not be permitted through New Zealand’s EEZ because of the ‘precautionary principle’ enshrined in the Rio Declaration.^[37]

In relation to these environmental limitations on navigation freedoms, Van Dyke has commented that:

Although it is not yet entirely clear how all these conflicting environmental and security initiatives will be sorted out, it seems that we are in a period of reassessment and transition regarding how to strike the balance between navigational freedoms and the right of costal states to limit navigation for self-protection. The law of the sea has always been created through the give-and-take process of states making conflicting claims … we are in a particularly active law-making period at present regarding navigational rights and responsibilities, and it appears that the law that will emerge will be different to the law that had existed previously.

Nuclear leasing, if it proceeds, presents a new challenge to navigational freedoms which will require a reconsideration and consolidation of existing international marine environmental law and governance to ensure that the environmental and safety risks and potential impacts associated with increased shipping of nuclear waste are properly assessed and appropriate action is taken. The opportunity exists for the international legal regime for marine transportation of nuclear waste to be developed proactively (building on the existing work of the IAEA and IMO), rather than reactively as a response to an environmental disaster like Chernobyl in the case of nuclear safety or the Torrey Canyon disaster in the case of marine oil pollution.^[38]

Before considering nuclear leasing and the international regulation of the maritime transport of nuclear material, this article briefly considers the size and growth of the nuclear power industry. It is the growth of this industry on a global scale which has led to proliferation concerns, new requirements for transport of nuclear materials and leasing or take-back proposals such as those that have recently been proposed by the GNEP and received some limited debate in Australia.

IV Nuclear Power, Nuclear Waste and its Transport

Several large industrialized nations use nuclear power to generate a substantial proportion of their electricity. They include France, 78 percent; Sweden, 50 per cent; South Korea, 40 per cent; Germany, 28 per cent; and Japan, 25 per cent. Currently there are 440 nuclear reactors in operation throughout the world, 30 under construction, 30 undergoing licensing and about 60 in the planning stages.^[39] The World Nuclear Association reports that these nuclear power stations operate in 31 countries and generate over 364,000 MWe of total capacity, supplying 16% of the world’s energy as base-load power.^[40] Further, 56 countries operate a total of 284 research reactors and 220 reactors power ships and submarines.^[41]

In the United States nuclear power comprises 20 per cent of the total electricity supply and is the second largest source of electricity after coal.^[42] It is the US Government’s policy to dramatically increase the proportion of nuclear power in the US though funding, financial incentives and streamlining of regulations for siting, constructing and operating nuclear power plants under the Nuclear Power 2010 program and the recently enacted comprehensive energy legislation, the Energy Policy Act of 2005 (EPACT 2005).^[43]

The IAEA has reported that as at 1998 nuclear power generation facilities produced about 200,000m³ of Low and Intermediate Level Waste (LILW) and 10,000m³ of High Level Waste (HLW) (including spent nuclear fuel designated as waste) each year worldwide.^[44] According to the IAEA classification system, LILW contains enough radioactive material that it requires actions to ensure the protection of workers and the public for short or extended periods of time, including the use of shielding containers and in some cases periods for cooling off. HLW contains sufficiently high levels of radioactive materials that a high degree of isolation from the biosphere, normally in a geologic repository (ie, underground), is required for long periods of time.^[45]

Transport of nuclear waste and radioactive material includes the transport of uranium fuel assemblies, LLW and LILW, spent fuel, plutonium and highly radioactive waste in a vitrified condition. The transport of LILW to waste treatment facilities and storage sites is common. Low level radioactive wastes include a variety of materials that emit low levels of radiation, slightly above normal background levels. Such materials often consist of solid materials, such as clothing, tools, or contaminated soil. Low level contaminated waste is moved by road, rail and sea, but most is transported only within the country where it is produced. Intermediate level waste typically comes from nuclear power plants and reprocessing facilities.^[46]

There are approximately 20 million transports of radioactive material annually (which may be either a single package or a number of packages sent from one location to another at the same time).^[47] Most transportation of such material is not related to the nuclear fuel cycle. Radioactive materials are used extensively in medicine, agriculture, research, manufacturing, non-destructive testing and minerals’ exploration.^[48] The World Nuclear Association reports that ‘some 300 sea voyages have been made carrying spent nuclear fuel or separated high-level waste over a distance of more than 8 million kilometres’.^[49]

Shipment of spent fuel, typically for reprocessing, has been undertaken for some time under commercial contracts and take-back arrangements. Since only a few countries have domestic capacity for reprocessing, reprocessing involves a maritime component as maritime transportation becomes necessary to enable access to foreign processing locations. Japan, for example, has expanded both its production of nuclear power and reprocessing of spent fuel. The Uranium Information Centre reports, that since 1969 more than 160 shipments of spent fuel have taken place from Japan to Europe for reprocessing, involving ‘more than 4000 casks and moving several thousand tonnes of highly radioactive spent fuel’.^[50] As the world-wide use of nuclear power grows, the maritime shipment of nuclear waste for reprocessing and disposal is also likely to increase.

Organisations such as the World Nuclear Association (WNA) and the World Nuclear Transport Institute (WNTI) promote the safety record of the nuclear transport industry. The WNTI, for example, reports that ‘in over 45 years of nuclear transport there has never been a transport incident that has caused significant radiological damage to people or the environment’.^[51] Notwithstanding this record, the nuclear transport industry faces the fear generated by nuclear materials (reflected in some of the responses to nuclear shipments described above) and the potential that less scrupulous transporters of nuclear materials may fail to adhere to the various regulations, standards and codes developed by the IAEA and the industry. A further risk is that those standards may not be enforced by under-resourced ‘flag-of-convenience’ states.

The transport of nuclear waste by sea raises concerns including the possibility of accidents such as fire, collision or sinking causing contamination of the marine environment.^[52] Other concerns include radiation exposure for crew during an incident-free transport and during the loading and unloading of such waste.^[53] The history of environmental protests and unilateral state action taken in response to voyages of nuclear shipments of the Akatsuki Maru (1992), the Pacific Pintail (1995), Pacific Teal (1996) and the Pacific Swan (1998),^[54] initiated many of the governance and law-making developments in the Law of the Sea and nuclear safety by the International Atomic Energy Agency (IAEA) and the International Maritime Organisation (IMO) discussed in the following sections of this paper.

Before discussing those legal responses, the next section of this paper briefly outlines the concept of ‘nuclear leasing’, its history in the United States and what it might mean for Australia and the international regulation of the maritime transport of nuclear waste.

V What is Nuclear Leasing?

The concept of ‘nuclear leasing’ entered the nuclear power debate in Australia recently when Deputy Prime Minister Mark Vaile raised the possibility that Australia might eventually take nuclear waste back from its customers who purchase Australian uranium.^[55] Mr Vaile’s comments, which sparked a flurry of media attention, were as follows:

We need to keep an open mind on all issues … If we expect to extract benefit from selling the product, then obviously there is a role in terms of management through life, both in terms of how it is used, under what security circumstances it is used in other countries. Then the question of waste comes into being. This is yet to be addressed.^[56]

These comments were later supported by the Prime Minister,^[57] although less enthusiasm was shown by the UMPNER Taskforce in its draft report.^[58] However, the federal government also confirmed that intermediate level radioactive waste is to be returned to Australia from France by 2011 and sent to a storage facility in the Northern Territory.^[59] So, in a relatively limited way, Australia is already participating in nuclear leasing.

This debate arose in the context of ongoing security concerns about Iran proceeding with a uranium enrichment program and India seeking access to nuclear fuels when both countries are not signatories to the Nuclear Non-Proliferation Treaty (NPT).^[60] In this context, Indonesia and other developing nations (the so-called ‘D8 group’ comprising Indonesia, Iran, Malaysia, Pakistan, Turkey, Bangladesh, Nigeria and Egypt) also recently met in Bali and passed a resolution which stated that developing nations should use alternative and renewable energy resources and have access to nuclear energy for peaceful purposes.^[61] This is significant having regard to the possible growth of nuclear power plants in the Asia-Pacific region and the consequent generation of nuclear waste, and the transportation, environmental and security issues which arise from such an expansion of nuclear power.

The GNEP, from which the concept of nuclear leasing most recently derives, was announced on 6 February 2006. The GNEP seeks to develop ‘worldwide consensus’ enabling the expanded use of economical, ‘carbon-free’ nuclear energy to meet growing energy demand. It is intended to use a nuclear fuel cycle that enhances energy security, while promoting non-proliferation. It proposes to achieve this goal by nations with secure, advanced nuclear capabilities providing fuel services – fresh fuel and recovery of used fuel – to other nations who agree to employ nuclear energy for power generation purposes only. The closed fuel cycle model envisioned by the partnership also requires development and deployment of technologies that enable recycling and consumption of radioactive waste.^[62]

The GNEP describes ‘nuclear leasing’ as a key component of establishing a ‘reliable fuel services arrangement’ that builds ‘an improved, more proliferation-resistant nuclear fuel cycle that recycles used fuel, while increasing energy security for all participating nations’.^[63]

VI History of ‘Nuclear Leasing’ in the US

The history of nuclear leasing as part of the US nonproliferation policy has previously been described by Dornak and Bloomer.^[64] The 1946 US Atomic Energy Act was the first foreign policy initiative adopted to prevent the spread of nuclear weapons. It prohibited international nuclear cooperation and assistance in developing foreign nuclear weapons. However, as other nations acquired nuclear technology, the US accepted that this policy was unrealistic.

According to Bloomer, the US began providing nuclear technology and highly enriched uranium (HEU) to foreign nations in the 1950s. This was done under a plan developed in 1953 by President Eisenhower known as ‘Atoms for Peace’.^[65]

Dornak notes that the US began accepting spent nuclear fuel (SNF) from foreign research reactors in 1958 to maintain complete control over HEU.^[66] These early HEU arrangements were lease agreements which, in 1964, the US converted into sales. According to Dornak:

In 1968, a new policy known as the ‘Off-Site Fuels Policy’ began. Under this policy, the United States accepted, temporarily stored, reprocessed, and provided HEU credits to foreign research reactors for reprocessing the SNF.

…

In 1978, the United States S began the Reduced Enrichment for Research and Test Reactors (RERTR) program to reduce the amount of HEU available for international commerce.^[67]

Under the RERTR program the US aimed to reduce the amount of HEU by developing low enriched uranium (LEU) to replace HEU fuels and the US Department of Energy (DOE) continued to accept foreign research reactors’ SNF on the condition that they replace HEU fuels with LEU fuels.^[68]

Following a short hiatus in the late 1970s and 1980s after pressure from environmental groups to end the practice of the US importing nuclear waste, the program was renewed in the early 1990s. On 21 October 1993 the DOE published a ‘Notice of Intent’ to prepare the Environmental Impact Statement on a Proposed Nuclear Weapons Nonproliferation Policy concerning Foreign Research Reactor Spent Nuclear Fuel (DEIS). During this period the import and transport of nuclear waste into the US was subject to a number of legal challenges under the US National Environment Protection Act (NEPA) based on inadequate environmental assessments of the impact of this activity (in particular, relating to the shipment of nuclear waste to South Carolina, Virginia, Idaho and California).^[69]

In February 1996, the DOE and the US State Department issued the DEIS. The goals of the DEIS were to reduce the potential for the proliferation of nuclear weapons and to support the US policy objective of seeking to reduce and eventually eliminate the use of HEU in civilian nuclear power. This was based on the US concern that residual amounts of HEU from nuclear fuel present in foreign research reactors create a usable component in the production of nuclear weapons.^[70]

During public consultation on the draft DEIS, concerns raised included risks during transport, terrorism, sunken casks, severe shipboard fires and the level of emergency preparedness at ports.^[71] According to Dornak, under the plan approved under the DEIS, over a thirteen year period foreign countries would ship SNF to either Charleston Naval Weapons Station in South Carolina or Concord Naval Weapons Station in California. Dornak notes that the DOE estimated that it would accept 19.5 metric tones of heavy metal of both HEU and LEU spent fuel from non-US research reactors.^[72]

Commenting on the litigation that resulted from this nonproliferation policy in the US, Bloomer notes:

The goal of restricting access to weapons-grade spent nuclear fuel is not without merit. However, this goal is not likely to be achievable given the current international political climate and distribution of uranium. DOE’s reliance upon nonproliferation may simply be a red herring used to gain control over the uranium market and its considerable financial rewards. Regardless of motive, DOE must thoroughly evaluate the environmental consequences of its decisions, especially in the light of the hazardous conditions at storage facilities and DOE’s past disregard of the human and environmental costs in its quest for nuclear superiority.^[73]

Bloomer also refers to the dissenting judgment of Circuit Judge Donald Russell in the decision of the Fourth Circuit Court of Appeals on 22 August 1995 in South Carolina ex.rel. Campbell v O’Leary.^[74] In this decision, the Court reversed an earlier decision and thus allowed urgent-relief shipments of HEU fuel rods to enter the US without an environmental impact statement. In a dissenting judgment, Circuit Judge Russell stated:

Instead of finding a permanent solution to the disposal of spent nuclear fuel, the United States has concentrated on controlling the market for highly-enriched uranium. … The government claims that the United States needs to accept 409 spent fuel rods so that foreign reactors will remain in the Reduced Enrichment program. …

However, it is difficult for me to believe that the United States can successfully control the market for highly enriched uranium when such fuel is freely available from brokers in Russia, China, and other countries, and where it is cheaper and easier to operate a reactor with high-enriched uranium.

In pursuit of this naïve goal, we are accepting spent nuclear fuel from research reactor operators who are fully capable of safely storing this spent fuel without assistance from [DOE] and without forcing us to accept their spent fuel.^[75]

In today’s international political climate similar considerations will no doubt be relevant to the US GNEP and the proposal of an expanded nuclear leasing program and Australia’s role in this aspect of the global nuclear fuel cycle. Proponents will need to carefully consider the environmental impact of such actions in accordance with international law and the domestic legislation of those countries which participate in this part of the nuclear fuel cycle. These include, Australia’s international obligations under the various instruments described in this article and domestic Commonwealth and State environmental legislation, such as the requirements for environmental impact assessment and approval of a ‘nuclear action’ which will have, or is likely to have, a significant impact on the environment under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).^[76]

VII International Responses to the Transport of Nuclear Waste

The 1989 Basel Convention on the Control of Hazardous Wastes and their Disposal (Basel Convention)^[77] is the main response of the international community to the generation and transboundary movement of hazardous wastes. The central feature of the Basel Convention is a prior informed consent mechanism which requires notice by the exporter to the importer prior to the shipment of any hazardous waste. The importing country then has opportunity to refuse the shipment, accept it subject to any conditions, or request additional information. However, the Basel Convention does not cover radioactive wastes addressed under other ‘international control systems’ such as the 1972 London Convention.^[78] Sea dumping of radioactive waste began in 1946, but was progressively brought under international control. In 1972, under the London Dumping Convention which regulates all dumping at sea, the disposal of high level radioactive waste was banned, and in 1994 the ban was extended to include low and intermediate level solid wastes as well.^[79]

In addition to the role of the IMO in relation to marine pollution from shipping and protection of the marine environment, the IAEA is the key international organisation responsible for developing standards and regulations relating to nuclear safety, transport and disposal. The IAEA was the product of a compromise following the failure of the international community to agree on the US proposal for international management of all nuclear power by an international body. The IAEA was set up as the world’s ‘Atoms for Peace’ organization in 1957 within the United Nations. It operates under the IAEA Statute which governs its role and procedures The Statute was approved on 23 October 1956 by the Conference on the Statute of the International Atomic Energy Agency, which was held at UN headquarters. It came into force on 29 July 1957.^[80] As of March 2006, the IAEA has 140 Member States.

The IAEA’s main tasks were initially limited to encouraging and facilitating the dissemination of nuclear power, and ensuring through non-proliferation safeguards that it was used only for peaceful purposes. Setting standards for health and safety in collaboration with other international agencies was an incidental and secondary responsibility. However, like the IMO after the Torrey Canyon disaster, the IAEA acquired a new environmental perspective as a result of Chernobyl.^[81]

There are a large number of international agreements and regional instruments relating to nuclear safety and responsibility, dumping of radioactive waste and the international transport of nuclear materials and radioactive waste. These have recently been documented by Kimball as shown in the following table (with some minor additions):

Nuclear Contamination from the Marine Perspective	In Force
NUCLEAR SAFETY AND RESPONSIBILITY IN GENERAL
Global Agreements
• Convention on Physical Protection of Nuclear Material (1979). IAEA	1987
• Convention on Nuclear Safety (1994). IAEA	1996
• Joint Convention on Safety of Spent Fuel Management and on the Safety of Radioactive Wastes Management (1997). IAEA	18 June 2001
Emergency Preparedness and Response:
• Convention on Early Notification of a Nuclear Accident (1986). IAEA	1986
• Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (1986). IAEA	1987
Liability and Compensation:
• Vienna Convention on Civil Liability for Nuclear Damage (1963) and 1963 and 1997 Protocols. IAEA	1977/77/NIF
• Joint Protocol Relating to the Application of Vienna and Paris (below) Conventions (1988). IAEA	1992
• Convention on Supplementary Compensation for Nuclear Damage (1997). IAEA	NIF
Regional Agreements
• Paris Convention on Third Party Liability in the Field of Nuclear Energy (1960) and 1964 and 1982 Protocols and Supplementary Convention (1963) and 1964 and 1982 Protocols. IAEA	1968/78/88 1974/74/91
• Joint Protocol Relating the Application of the Vienna (above) and Paris Conventions (1988). IAEA	1992
INTERNATIONAL TRADE/ MARITIME TRANSPORT OF NUCLEAR MATERIALS AND RADIOACTIVE WASTE
Global Agreements
• UNCLOS, Articles 22.2 and 23	1994
• International Code for the Safe Carriage of Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes on Board Ships (1993), mandatory under SOLAS as of 1 Jan. 2001 (INF Code). IMO
Emergency Preparedness and Response:
• Conventions and Non-Binding Agreements relating to ocean dumping, vessel safety and pollution control (insofar as radioactive substances may be covered) including, for example, International Convention for the Prevention of Pollution from Ships (1973) and 1978 Protocol (MARPOL 73/78). IMO and International Convention for the Safety of Life at Sea (SOLAS 1974) and 1978 and 1988 Protocols. IMO
• INF Code covers shipboard emergency plans
Liability and Compensation:
• Convention on the Liability of Operators of Nuclear Ships (1962)	NIF
• Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material (1971).IMO	1975
Regional Agreements
• Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Waste Within Africa (1991). OAU	NIF
• Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region (1995) (the Waigani Convention). South Pacific Forum	NIF
Non-Binding:
• Northeast Atlantic Strategy with regard to Radioactive Substances (1998) .
DISPOSAL OF RADIOACTIVE WASTE
Global Agreements
• Ban on At-Sea Disposal. London Convention (1972) and (1996 Amendments).IMO	1975/NIF
Regional Agreements
• Ban on At-Sea Disposal under the regional dumping instruments
• Ban on Disposal in Antarctica. Antarctic Treaty (1959)	1961
NUCLEAR FREE ZONES
Global Agreements
• Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water (1963).	1963
• Treaty on the Prohibition of Emplacement of Nuclear Weapons and other Weapons of Mass Destruction in the Seabed and the Ocean Floor and in the Subsoil thereof (1971)	1972
• Comprehensive Nuclear Test Ban Treaty (1996)	NIF
Regional Agreements
• Treaty for the Prohibition of Nuclear Weapons in Latin America (1967) and Protocols.	1968/1969
• South Pacific Nuclear Free Zone Treaty (1985) and 1986 Protocols	1986/88
• African Nuclear Weapon Free Zone Treaty and Protocols (1995)	NIF
• Treaty on the Southeast Asia Nuclear Weapon Free Zone and Protocol (1995)	1997
• Antarctica: Ban on nuclear explosions, nuclear weapons testing and the disposal of radioactive wastes. Antarctic Treaty (1959)	1961

Adapted from Table II-3 in Kimball, Lee A International Oceans Governance – Using International Law and Organizations to Manage Resources Sustainability (IUCN, 2001)

Meetings associated with the Law of Sea conferences, which led to UNCLOS, included the 1960 Convention on Third Party Liability of Nuclear Energy, the 1962 Brussels Convention on the Liability of Operations of Nuclear Ships and the 1963 Vienna Convention on Civil Liability for Nuclear Damage.^[82] In the midst of the Cold War nuclear arms race, the disposal of nuclear waste and placement of nuclear weapons on the seabed was of particular concern in this period during which UNCLOS was negotiated. Two international conventions were concluded to address this concern: the 1971 Treaty on the Prohibition of the Emplacement of Nuclear Weapons on the Seabed and the 1971 Brussels Convention on Civil Liability in the Field of Maritime Carriage Nuclear Material.^[83]

The main international legal documents relating to the maritime transport of nuclear waste are UNCLOS, the IAEA Code of Practice on the International Transboundary Movement of Radioactive Waste (IAEA Code), the Code for the Safe Carriage of Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes in Flasks on board Ships (INF Code), the International Maritime Dangerous Goods Code (IMDG) and the IAEA Regulations for the Safe Transport of Radioactive Material (IAEA Regulations). This collection primarily addresses the following:

• Documentation of transport of nuclear material and requirement to observe precautionary measures established by international agreements (UNCLOS);
• The role of states in regulating the movement of such shipments (IAEA Code);
• The construction, equipment and operations of ships (INF Code);
• The handling of dangerous goods (including radioactive material) (IMDG Code); and
• The requirements for packaging of nuclear material transported (IAEA Regulations).

Each of these documents has different parties and a different legal status. For example, the IAEA Code is advisory and recommendatory only. It has no binding legal status. It does however, set an industry standard for the shipping and nuclear industries and, arguably, would be incorporated under articles 22 and 23 of UNCLOS discussed below. Similarly, the IAEA Regulations set an international standard for the packaging and transport of radioactive materials which IAEA Member States are encouraged to adopt in the national regulations. The INF Code, on the other hand, is mandatory for all ships (except warships) engaged in the carriage of Irradiated Nuclear Fuel (INF) cargo (material containing uranium, thorium and/or plutonium isotopes), plutonium or high-level radioactive wastes. The INF Code is mandatory by inclusion its requirements under Chapter VII of the Convention for Safety of Life at Sea (SOLAS) (carriage of dangerous goods).

VIII UNCLOS

Articles 22 and 23 of UNCLOS provide that in exercising innocent passage in the territorial sea, foreign ships carrying nuclear or other inherently dangerous or noxious substances and nuclear-powered ships must carry documents and observe special precautionary measures established for such ships by international agreements and may be required to travel in designated sea lanes.

Currie and Van Dyke have argued that this

in effect incorporates the IAEA Code and harmonizes international regulation of ultrahazardous radioactive cargoes with UNCLOS and the protection of territorial seas.^[84]

The same argument could potentially also apply to the INF Code, IMDG Code, and the IAEA Regulations.

IX IAEA Code

In 1990, the IAEA published the IAEA Code.^[85] The main principles of the Code include the following: states should exercise their right to regulate movements of radioactive waste into, from or through their territories in accordance with the Code; states should ensure that transboundary movement of radioactive waste takes place only with prior notification and consent of the sending, receiving and transit states; a state should re-admit the radioactive waste that was transferred from it in non-compliance with the Code; and states should cooperate to prevent movements that are not in compliance with the Code. The provisions of the Code are designed to be included within bilateral, multilateral or regional agreements of states.

X INF Code

The INF Code was developed by a joint IMO/IAEA/UNEP working group and adopted by the IMO in 1994. The INFO Code addresses the construction, equipment and operation of ships, engaged in the carriage of INF, plutonium and high level radioactive wastes.^[86]

The INF Code includes a range of safety and emergency requirements relating to fire safety, shipboard emergency plans, and notification of incidents. As noted above, it became mandatory on 1 January 2001 by amendments adopted to Chapter VII of SOLAS.^[87]

XI IMDG Code

In the 1960s the IMO prepared and adopted the IMDG Code. Class 7 of the IMDG Code covers radioactive material, largely based on the IAEA Regulations. The purpose of these provisions is to guide those involved in the handling and transport of radioactive material in ports and on ships. Amendments to SOLAS Chapter VII (Carriage of Dangerous Goods) adopted in May 2002 make the IMDG Code mandatory from 1 January 2004. Also in May 2002, IMO adopted the IMDG Code in a mandatory form known as Amendment 31. However, the provisions of some of parts of the Code remain recommendatory only: including the provisions of Chapter 3.5 relating to the Transport schedule for Class 7 radioactive material.^[88]

In 1985, the IMO extended the IMDG Code to marine pollutants in order to support the implementation of Annex III of the International Convention for the Prevention of Pollution from Ships as modified by the 1978 Protocol (MARPOL 73/78). Annexes I and II concern the bulk carriage of oil and chemicals in ships’ holds. Annex III contains regulations for preventing pollution by harmful substances carried in a packaged form. Harmful substances not listed in Annex III are defined as those substances which are identified as marine pollutants in the IMDG Code. However, neither radioactive material in general nor specific radionuclides have been designated as marine pollutants.^[89]

XII IAEA Regulations for the Safe Transport of Radioactive Material

The IAEA Regulations set standards for nuclear fuel cycle transport. The IAEA Regulations are based on the principle that radioactive material being transported should be packaged adequately to provide protection against the various hazards of the material under both normal and potential accident conditions. Safety, therefore, relies on the package – on the packaging adapted to its radioactive contents, whatever the transport mode. The objective is to protect people, property and the environment against the direct and indirect effects of radiation during transport. The requirements in the Regulations relate to the confinement of the radioactive contents, the control of the external radiation levels, the prevention of a chain reaction and the prevention of damage caused by high temperature.

The Regulations set out several performance standards relating to the packaging of radioactive material. They provide for five different primary packages (excepted, industrial, Type A, Type B and Type C) and set the criteria for their design according to both the activity and the physical form of the radioactive material they may contain. The Regulations also contain marking and labeling provisions, requirements imposed on packages during transit, and prescriptions for their maintenance. The Regulations set an international safety standard which may be adopted by IAEA Member States in their national regulations.

XIII Summary of International and Regional Modal Regulations or Agreements

The following table reproduced from one prepared by the World Nuclear Transport Institute summarises the key regulations, codes and agreements which relate to the safety of transport of radioactive material by different transport modes.

Safety Regulations for the Transport of Radioactive Material

Mode of Transport	International/ Regional Organisation	Name of Regulation/ Agreement/Codes	Current Version	Scope
All	IAEA	Regulations for the Safe Transport of Radioactive Material	TS-R-1 (ST-1, As Amended 2003)	Worldwide
All	UN/ECOSOC	Recommendations on the Transport of Dangerous Goods	2003 Edition (13th Revised Edition)	Worldwide
Sea	IMO	International Maritime Dangerous Goods Code (IMDG Code) International Code for the Safe Carriage of Packaged Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes on Board Ships (INF Code)	2002 Edition (with Amendment 31-02) 2000 Edition	Worldwide Worldwide
Air	ICAO IATA	Technical Instructions for the Safe Transport of Dangerous Goods by Air (TI) Dangerous Goods Regulations (DGR)	3rd Edition July 2001 Supplement to TI (2003-2004 Edition) 2004 Edition (45 th Edition)	Worldwide Worldwide
Road	UN/ECE	European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR)	2003 Edition	Regional
Rail	OCTI	Regulations Concerning the International Carriage of Dangerous Goods by Rail (RID)	2003 Edition	Regional
Road and Rail	MERCOSUR/ MERCOSUL	Agreement of Partial Reach to Facilitate the Transport of Dangerous Goods	1994	Regional
Inland Waterways	UN/ECE CCNR	European Provisions concerning the International Carriage of Dangerous Goods by Inland Waterways (ADN) Provisions concerning the Carriage of Dangerous Goods on the Rhine (ADNR)	2003 Edition 2003 Edition	Regional Rhine Navigation
Post	UPU	Universal Postal Convention and its Detailed Regulations	2000 Edition	Worldwide

Source: World Nuclear Transport Institute: <http://www.wnti.co.uk/regulations.html>.

XIV Regional Responses to the Transport of Nuclear Waste

The Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control Transboundary Movements and Management of Hazardous Wastes with the South Pacific Region (the Waigani Convention) was adopted in Waigani, Papua New Guinea in September 1995. The Convention, which requires 10 ratifications to enter into force, has to date only been ratified by 4 members of the South Pacific Forum: Papua New Guinea, Fiji, the Federated States of Micronesia and Australia.^[90]

Concerns which led to the negotiation of the Convention included historical concerns over nuclear testing reignited by French nuclear tests in the region and a proposal by the Marshall Islands to create a nuclear waste disposal facility on Bikini Atoll, a site still contaminated from US nuclear tests which took place in the 1950s. Also of concern was the movement – or threatened increased movement – in and out of the South Pacific region of an ever increasing amount of hazardous wastes, including nuclear wastes, and the perceived need for a set of rules governing their import and export, disposal and recycling.^[91] These concerns are reflected in the recent discussion of nuclear leasing and concerns that the Pacific Ocean will become a ‘nuclear highway’.^[92]

The Convention imposes an obligation on Pacific Island 'developing Parties' to ban the import of hazardous and radioactive wastes from outside the region^[93] and a corresponding obligation on ‘other Parties’ (Australia and New Zealand and any other developed country should they ultimately join the Convention) to ban the export of hazardous and radioactive wastes to all Forum Island Countries.^[94] Waigani participants are under an obligation to ‘give actual consideration to the implementation of the IAEA Code’^[95] and, ‘subject to available resources’, to actively participate in the development of the Convention on the Safe Management of Nuclear Waste.^[96]

Australia has implemented the Waigani Convention through domestic legislation in the Hazardous Waste (Regulation of Export and Imports) (Waigani Convention) Regulations 1999. Australia’s commitments under the Convention, the Regulations, the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (under which the Regulations are made) and legislation concerning the import and export of radioactive waste (for example, the Customs (Prohibited Imports) Regulations 1956 which prohibits the import of radioactive substances into Australia without a permit), may provide some initial legal hurdles if Australia participated in nuclear leasing.

XV Towards a Comprehensive International Legal Framework?

In the Mox Plant Case (United Kingdom v Ireland)^[97] before the International Tribunal for the Law of the Sea, the Tribunal stated in its Order of 3 December 2001 that:

the duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under Part XII of [UNCLOS] and the general international law and that rights arise therefrom which the Tribunal may consider appropriate to preserve under Article 290 of the Convention.

This Order instructed the UK to consult and cooperate with Ireland on possible consequences resulting from the proposed expansion of the MOX (mixed plutonium/uranium oxide) plant at Sheffield on the UK’s Cumbrian coast facing the Irish Sea, and to monitor risks and devise measures to prevent pollution. Van Dyke has commented that the Order highlighted the obligation to consult under international law in relation to the transport of nuclear waste by sea, particularly when read in light of the International IAEA General Conference resolutions of 2003 and 2004 (discussed below). Issues on which States have demanded consultation in relation to the marine transport of nuclear waste include prior notification of routes, emergency response preparations, the further development of liability and compensation regimes, and the preparation of environmental impact assessment.^[98]

The IAEA held an International Conference on the Safety of Transport of Radioactive Material in July 2003. In March 2004, the IAEA developed an International Action Plan for the Safety of Transport of Nuclear Materials that addressed the issue of emergency responses to a maritime incident or accident involving radioactive material being transported in international waters. In September 2004, the IAEA General Conference passed a resolution that recalled that States have, under international law, the obligation to protect and preserve the maritime environment and (while reaffirming maritime and air navigation rights and freedoms) stressed the importance of international cooperation in enhancing the safety of international navigation. The resolution welcomed the practice of some shipping States and operators of providing in a timely manner information and responses to relevant coastal States in advance of shipments for the purpose of addressing concerns regarding safety and security, including emergency preparedness, and invited other States to do the same.^[99]

In addition to regional and unilateral state responses discussed above, many of the elements of an international regime regulating, and international practices controlling, the maritime transport of nuclear waste already exist under international law (including duties to avoid causing harm to other states; to protect the marine environment; to prepare an environmental impact assessment; to notify and consult with affected countries; and to prepare for foreseeable emergency contingencies).^[100] However, a comprehensive and binding legal regime is yet to emerge.^[101] Currie and Van Dyke have suggested that such a regime would include, at a minimum, the following elements:

• The obligation to notify and fully consult well in advance of any shipments of high-level radioactive materials though the territorial sea or EEZ of any other nation(including alternative routing and emergency contingency planning).
• The requirement to prepare an environmental impact assessment prior to such shipments (including public participation).
• The exclusion of nuclear shipments from certain hazardous routes.
• Detailed provisions on accident and emergency procedures(including access to appropriate ports, availability of tugboats and fire fighting equipment, and plans for retrieval in the event of sinking).
• A binding liability and compensation regime applicable to these shipments (including environmental and consequential damage on a strict liability basis at a realistic level but must also spell out the conditions of liability,. the creation or identification of a compensation fund to pay any victims of accidents, and an international tribunal to hear claims.^[102]

XVI Conclusion

The international regime relating to the marine transport of nuclear waste has been described as ‘a patchwork’.^[103] This accurately describes the various international and regional agreements, codes of practice, resolutions, statements and guidelines, as well as unilateral actions, which make up international and individual state responses to this issue. This range of obligations under international law and voluntary codes and guidelines are relatively disparate and lacking in transparency and coordination by any one governing international body. If the nuclear industry is set to grow on a global scale, and nuclear leasing forms a part of the nuclear fuel cycle world-wide and nuclear shipments increase, greater coordination, consistency and transparency will be required in the international laws which apply to this industry at sea.

The development of a comprehensive and binding international legal regime relating to nuclear shipments should provide greater protection to the marine environment from damage in the event of an accident or incident involving a nuclear shipment, and thus generate greater confidence for States and their citizens about the management of risks posed by such shipments. It should also provide greater certainty for participants in the shipping and nuclear transport industries that nuclear shipments will not be subject to the bans or blockades which have been experienced in some cases to date.

According to Van Dyke, the break up of the oil tanker Prestige off the coast of Spain in November 2002 has been identified as the ‘defining moment’ that changed perceptions and the governing principles of international law.^[104] relating to the shipment of oil. This incident initially resulted in a number of unilateral actions by European states to control the movement of oil tankers in their territorial waters and EEZs, which then led to a coordinated international response to this issue within the IMO. While there has been progress toward such a response in relation to the marine transport of nuclear materials, there is still some way to go.

The unilateral actions by various states in relation to the shipment of nuclear waste, such as those to block the British nuclear cargo ship Pacific Pintail in 1995 and to challenge the proposal of the US in 2004 to transport the San Onofre nuclear reactor by sea, as well as regional examples of bilateral and multilateral agreements (such as the Waigani Convention), should be sufficient impetus to promote a concerted international response to this issue; rather than waiting for the break up of a nuclear cargo ship at sea.

---

^[∗] An earlier version of this article was prepared by the author for submission as part of his Master of Laws (LLM) in Environmental Law at Macquarie University, Sydney, Australia. The paper was submitted for the subject International Marine Environmental Law and Oceans Governance which was convened by Dr David Leary. The author would like to thank Dr Leary for his helpful comments on earlier versions of this paper. The views expressed in this paper remain entirely those of the author.

^[**] BA (Hons 1)/LLB (Monash University). LLM (Environmental Law) (Macquarie University). The author is a Senior Associate at DLA Phillips Fox Lawyers. The author can be contacted at [e-mail]. The views expressed in this paper remain entirely those of the author, not of DLA Phillips Fox.

^[1] Commonwealth of Australia 2006, Uranium Mining, Processing and Nuclear Energy – Opportunities for Australia? Report to the Prime Minister by the Uranium Mining, Processing and Nuclear Energy Taskforce: <http:www.dpmc.gov.au/umpner>.

^[2] Uranium Mining, Processing and Nuclear Energy Review Issues Paper: <http:www.dpmc.gov.au/umpner/paper.cfm#health>.

^[3] The Global Energy Nuclear Partnership ‘Greater Energy Security in a Safer, Cleaner World’, 6 February 2006: http://www.gnep.energy.gov.

^[4] United Nations Convention on Law of the Sea, done at Montego Bay, 10 December 1982, 21 ILM 1261 (1982) (hereafter referred to as UNCLOS).

^[5] ‘Pacific will become nuclear highway – Greenpeace’, Pacnews, 16 May 2006: http://www.islandsbusiness.com/news.

^[6] H Grumm, ‘IAEA Safeguards: Milestones In Development & Implementation’ (1987) 29(3) IAEA Bul 29 quoted in Elena Molodstova, ‘Nuclear Energy and Environmental Protection: Responses of International Law’ (1994) 12 Pace Envtl L Rev 185, 188.

^[7] E D Brown, The International Law of the Sea (1994) vol I and vol II, 6.

^[8] Ibid.

^[9] E P Anand, Origin and Development of the Law of the Sea (1983) 2-3.

^[10] Ibid 85.

^[11] Ibid 104.

^[12] Ibid 96.

^[13] Ibid.

^[14] Rognvaldur Hannesson, The Privatisation of the Oceans (2004) 32.

^[15] This number of ratifications is current as at 29 April 2006: http://www.un.org/Depts/los/ reference_files/status2006.pdf.

^[16] Article 87, UNCLOS.

^[17] Article 17, UNCLOS.

^[18] Article 38, UNCLOS.

^[19] Article 58, UNCLOS.

^[20] Article 192, UNCLOS.

^[21] Article 235(1), UNCLOS.

^[22] Duncan E J Currie and Jon Van Dyke, ‘The Shipment of Ultrahazardous Nuclear Materials in International Law’ (1999) 8(2) RECIEL 113, 114.

^[23] Article 87, UNCLOS.

^[24] Article 56(1), UNCLOS.

^[25] Jon Van Dyke, ‘Balancing Navigational Freedom with Environmental and Security Concerns’ (2003) Colo J Int’l Envtl L and Pol’y 19; Jon Van Dyke, ‘The Disappearing Right to Navigational Freedom in the Exclusive Economic Zone’ (2005) 29 Marine Pol’y 107.

^[26] Van Dyke, above n 25, 28.

^[27] Van Dyke, above n 25, 22; See also Duncan E J Currie and Jon Van Dyke, ‘Recent Developments in the International Law Government Shipments of Nuclear Materials and Wastes and their Implications for SIDS’ (2005) 14(2) RECIEL 117, 122.

^[28] Van Dyke, above n 25.

^[29] Currie and Van Dyke, above n 27.

^[30] Van Dyke, above n 25, 22.

^[31] Van Dyke, above n 25, 22.

^[32] Van Dyke, above n 25, 23-24.

^[33] Van Dyke, above n 25, 23-24. See also Currie and Van Dyke, above n 27.

^[34] Van Dyke, above n 25, 21. See also Currie and Van Dyke, above n 27, 118-120.

^[35] Van Dyke, above n 25, 21. See also Currie and Van Dyke, above n 27, 118-120.

^[36] Van Dyke, above n 25, 21. See also Currie and Van Dyke, above n 27, 118-120.

^[37] Van Dyke, above n 25, 24-25

^[38] Patricia Birnie and Alan Boyle, International Law & The Environment (2^nd ed, 2002) 455-456.

^[39] Julie Bishop, ‘The Sensible Energy Alternative is Within our Grasp’, The Australian, 5 June 2006, 8.

^[40] World Nuclear Association, ‘Nuclear Power in the World Today’, February 2006: http://www.world-nuclear.org/info/inf01.htm.

^[41] Ibid.

^[42] See US Department of Energy, ‘GNEP Element: Expand Domestic Use of Nuclear Power’: available http://www.gnep.energy.gov/gnepUSNuclearPower.html.

^[43] Ibid.

^[44] IAEA ‘Managing Radioactive Waste’ (1998): <http://www.iaea.org/Publications/Factsheets/

English/manradwa.html>.

^[45] Ibid.

^[46] IAEA ‘Managing Radioactive Waste’ (1998): <http://www.iaea.org/Publications/Factsheets/

English/manradwa.html>.

^[47] World Nuclear Association ‘Transport of Radioactive Materials’ (October 2003): http://www.world-nuclear.org/info/inf20.htm.

^[48] Ibid.

^[49] Ibid.

^[50] Uranium Information Centre, ‘Transport of Radioactive Materials’ Nuclear Issues Briefing Paper #51 (September 2005): <http://www.uic.com.au/nip51.htm> .

^[51] World Nuclear Transport Institute, ‘Nuclear transport facts’: <http://www.wnti.co.uk/transportcycle.html>. See also World Nuclear Transport Institute ‘Safety Regulations Governing Radioactive Materials Transport’ (Fact Sheet No.1), May 2004: <http://www.wnti.co.uk/attachment/publications/factsheets/WFS_1_(REV04).pdf>; World Nuclear Association ‘Transport of Radioactive Materials’ (October 2003): http://www.world-nuclear.org/info/inf20.htm.

^[52] Duncan E J Currie and Jon Van Dyke, ‘The Shipment of Ultrahazardous Nuclear Materials in International Law’ (1999) 8(2) RECIEL 113.

^[53] David B Dornak, ‘Maritime Implications of the United States Nonproliferation Policy: Are We Trading Lives for Nuclear Waste?’ (1998) 10 USF Mar LJ 109, 120.

^[54] Currie and Van Dyke, above n 27, 113.

^[55] ‘PM Seeks Support for Uranium Sales’, The Australian Financial Review, 15 May 2006, 8; ‘Our Backyard may be N-Dump for the World’, The Australian, 15 May 2006, 1.

^[56] Ibid.

^[57] David Crowe, ‘Spent Nuclear Fuel Back in Five Years’, The Australian Financial Review, 19 June 2006, 9.

^[58] Commonwealth of Australia, above n 1, 94. The draft report considers nuclear fuel leasing as one of several nuclear non-proliferation and safeguard regimes. The draft report and a number of submissions to the Review, for example, by the Australian Safeguards and Non-Proliferation Office (ANSO) and BHP Billiton, cast doubt on the ‘non-proliferation credentials’ of the nuclear fuel leasing concept.

^[59] Crowe, above n 57, 9.

^[60] ‘Indonesia joins Iran in Nuclear Dream’, The Australian Financial Review, 15 May 2006, 10.

^[61] Ibid.

^[62] US Department of Energy, Global Nuclear Energy Partnership website (updated 6 February 2006): www.gnep.energy.gov/gnepReliableFuelServices.html.

^[63] Ibid.

^[64] Dornak, above n 53, 111; Danette L Bloomer, ‘Beyond Our Own Backyard: Considering the Legal Implications and Environmental Risks of Importing Spent Nuclear Fuel’ (1995) 10 J Envtl L & Litig 157, 159.

^[65] Bloomer, above n 64, 159.

^[66] Dornak, above n 53, 111.

^[67] Dornak, above n 53, 111.

^[68] Dornak, above n 53, 111.

^[69] Federal litigation was brought by environmental organisations in the US challenging the importation of nuclear waste for failing to comply with the requirement of the US National Environmental Policy Act (NEPA). The cases included: Northwest Inland Coalition v United States Department of Energy, 852 F 2^nd 572, 1988 WL 74661 (9th Cir 1988) (unpublished opinion); Sierra Club v Watkins, 808 F Supp 852, 857 (DDC 1991); Public Serv Co of Colorado v Andrus, 825 F Supp 1483, 1511 (D Idaho 1993) and Public Serv Co of Colorado v Batt, [1995] USCA9 2954; 67 F 3d 234, 235 (9^th Cir 1995); South Carolina ex re. Campbell v O’Leary[1995] USCA4 2161; , 64 F.3d 892 (4^th Cir 1995); South Carolina ex rel Beasley, 953 F Supp 699 (DSC 1996). See Dornak, above n 53, 109.

^[70] Dornak, above n 53, 109.

^[71] Dornak, above n 53, 114.

^[72] Dornak, above n 53, 114. The DEIS and related documents are available at: http://www.rertr.anl.gov/FRRSNF.html.

^[73] Bloomer, above n 64, 186-187.

^[74] South Carolina ex rel Campbell v O’Leary, [1995] USCA4 2161; 64 F 3d 892 (4^th Cir 1995).

^[75] South Carolina ex rel Campbell v O’Leary, [1995] USCA4 2161; 64 F 3d 892 (4^th Cir 1995).

^[76] Section 21 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). This provision relates to nuclear actions within the Commonwealth’s constitutional powers relating to actions by the Commonwealth or a Commonwealth Agency, on Commonwealth land or in a Territory and actions by a person for the purposes of trade or commerce between Australia and another country or between two Australian States and/or Territories. ‘Nuclear action’ is defined to mean any of the following: ‘(a) establishing or significantly modifying a nuclear installation; (b) transporting spent nuclear fuel or radioactive waste products arising from reprocessing; (c) establishing or significantly modifying a facility for storing radioactive waste products arising from reprocessing; (d) mining or milling uranium ore; (e) establishing or significantly modifying a large-scale disposal facility for radioactive waste; (f) de-commissioning or rehabilitating any facility or area which an activity described in paragraph (a), (b), (c), (d) or (e) has been undertaken; (d) any other action prescribed by the regulations.

^[77] Basel Convention on the Control of Hazardous Wastes and their Disposal, of 22 March 1989, 28 ILM 649 (1989) (hereafter referred to as the Basel Convention).

^[78] Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, adopted at London, 13 November 1972, 11 ILM 1294 (1972) Article 1(3).

^[79] R B Clark, Marine Pollution (2001) 160.

^[80] See <http://www.oaeo.org/About/statute.html>

^[81] Birnie and Boyle, above n 38, 455-456.

^[82] James C F Wang, Handbook on Ocean Politics & Law (1997) 21.

^[83] Ibid 23.

^[84] Currie and Van Dyke, above n 22, 115.

^[85] General Conference Resolution, 21 September 1990 on ‘Code of Practice on the International Transboundary Movement of Radioactive Waste’ (1991) 30 Int’l L Materials 557.

^[86] International Atomic Energy Agency (IAEA), Secretariat to, ‘Report on Legally Binding and Non-Binding International Instruments and Regulations Concerning the Safe Transport of Radioactive Materials and their Implementation’, 16 April 1998 (GOV/1998/17), 11; Currie and Van Dyke, above n 22.

^[87] See http://www.imo.org/Safety/mainframe.asp?topic_id=354.

^[88] See: http://www.imo.org/Safety/mainframe.asp?topic_id=158

.

^[89] IAEA, above n 86, 11-12.

^[90] David Van Hoogstraten and Peter Lawrence, ‘Protecting the South Pacific from Hazardous and Nuclear Waste Dumping: The Waigani Convention’ (1998) 7(3) RECIEL 268.

^[91] Ibid.

^[92] Pacnews, above n 5.

^[93] Article 4(1)(a) Waigani Convention.

^[94] Article 4(1)(b) Waigani Convention. Forum Island Countries are: America Samoa, Commonwealth of Northern Mariana Island, Cook Islands, Federated States of Micronesia, Fiji, French Polynesia, Guam, Kiribati, Nauru, New Caledonia and its dependencies, Niue, Papua New Guinea, Pitcairn Island, Republic of Palau, Republic of the Marshall Islands, Samoa, Solomon Islands, Tokelau, Tonga, Tuvalu, Vanuatu, Wallis and Futuna.

^[95] Article 5(a) Waigani Convention.

^[96] Article 5(b) Waigani Convention.

^[97] The Mox Plant Case (Ireland v UK) (2002) 41 ILM 405. See also Duncan E J Currie and Jon Van Dyke, ‘Recent Developments in the International Law Governing Shipments of Nuclear Materials and Wastes and their Implications for SIDS’ (2005) 14(2) RECIEL 117, 122.

^[98] Currie and Van Dyke, above n 27, 123.

^[99] Currie and Van Dyke, above n 27, 123.

^[100] Currie and Van Dyke, above n 27, 114-115.

^[101] Currie and Van Dyke, above n 27, 119.

^[102] Currie and Van Dyke, above n 27, 119.

^[103] Currie and Van Dyke, above n 27; Van Dyke, above n 25.

^[104] Van Dyke, above, n 25.