Barcelona Convention, although limited only to twenty-two Contracting Parties in
the Mediterranean, embraces a right of prior notification while rejecting prior
authorization in Article 6(4) of the Basel Convention. But flag States tend to argue
that no prior notification is needed because ships passage is innocent and not
prejudicial to the peace, good order or security of the coastal State which is possibly
in line with Article 4(12) of the Convention.
61
5.2 Nuclear Material
It has been suggested that the innocent passage of ships carrying nuclear material
onboard under the Law of the Sea Convention is apparently at conflict with the
precautionary principle under international environmental law and, precedence of
one over the another. The shipping and cargo interest in maintaining secrecy of the
shipment and voyage so as to avoid a targeted piratical or terrorist attack on the
vessel is at conflict with the valid concerns of the coastal States related to the
catastrophic risk to its populace and marine environment.
The first instance of denial of passage to a ship carrying nuclear cargo through
waters of a coastal State occurred in 1992 when the Akatsuki Maru carrying 1.7 tons
of plutonium from France to Japan, was publicly prohibited by Argentina, Chile,
Portugal, South Africa, and Malaysia from taking a route through their waters,
despite the secrecy of the route and the voyage. Malaysia requires prior authorization
for nuclear-powered ships to enter its territorial seas.
62 The Declaration on Shipments of Plutonium, adopted as pre-emptive response to the Akatsuki Maru voyage,
bans passage of all shipments of nuclear materials through the Caribbean Sea.
63
In 1995, the British flagged Pacific Pintail carrying twenty-eight logs of highlevel vitrified nuclear waste from France to Japan was faced with ban from the
Caribbean states, refusal of passage from the territorial waters of Antigua, Barbuda,
Colombia, the Dominican Republic, Puerto Rico and Uruguay and furthermore,
from the EEZ of Brazil, Argentina, Chile, South Africa, Nauru and Kiribati. After the
vessel abandoned its preferred route through the Panama Canal and charted a course
around Cape Horn, Chilean warships went to the extent of intercepting the Pacific
Pintail in their EEZ and demanding that the ship leave their waters immediately even
though the vessel was attempting to take shelter from heavy seas and severe weather
around the Cape Horn.
64
of Plenipotentiaries on the Protocol on the Prevention of Pollution of the Mediterranean Sea by
Transboundary Movements of Hazardous Wastes and their Disposal, held in Izmir.
61 Hakapää and Molenaar (1999).
62 United States, Department of Defence (2016).
63 Dixon (2006), pp. 76–77.
64 Dixon (2006), p. 77.
Innocent Passage Under UNCLOS: An Exploration of the Tenets, Trials. . .
239
the Mediterranean, embraces a right of prior notification while rejecting prior
authorization in Article 6(4) of the Basel Convention. But flag States tend to argue
that no prior notification is needed because ships passage is innocent and not
prejudicial to the peace, good order or security of the coastal State which is possibly
in line with Article 4(12) of the Convention.
61
5.2 Nuclear Material
It has been suggested that the innocent passage of ships carrying nuclear material
onboard under the Law of the Sea Convention is apparently at conflict with the
precautionary principle under international environmental law and, precedence of
one over the another. The shipping and cargo interest in maintaining secrecy of the
shipment and voyage so as to avoid a targeted piratical or terrorist attack on the
vessel is at conflict with the valid concerns of the coastal States related to the
catastrophic risk to its populace and marine environment.
The first instance of denial of passage to a ship carrying nuclear cargo through
waters of a coastal State occurred in 1992 when the Akatsuki Maru carrying 1.7 tons
of plutonium from France to Japan, was publicly prohibited by Argentina, Chile,
Portugal, South Africa, and Malaysia from taking a route through their waters,
despite the secrecy of the route and the voyage. Malaysia requires prior authorization
for nuclear-powered ships to enter its territorial seas.
62 The Declaration on Shipments of Plutonium, adopted as pre-emptive response to the Akatsuki Maru voyage,
bans passage of all shipments of nuclear materials through the Caribbean Sea.
63
In 1995, the British flagged Pacific Pintail carrying twenty-eight logs of highlevel vitrified nuclear waste from France to Japan was faced with ban from the
Caribbean states, refusal of passage from the territorial waters of Antigua, Barbuda,
Colombia, the Dominican Republic, Puerto Rico and Uruguay and furthermore,
from the EEZ of Brazil, Argentina, Chile, South Africa, Nauru and Kiribati. After the
vessel abandoned its preferred route through the Panama Canal and charted a course
around Cape Horn, Chilean warships went to the extent of intercepting the Pacific
Pintail in their EEZ and demanding that the ship leave their waters immediately even
though the vessel was attempting to take shelter from heavy seas and severe weather
around the Cape Horn.
64
of Plenipotentiaries on the Protocol on the Prevention of Pollution of the Mediterranean Sea by
Transboundary Movements of Hazardous Wastes and their Disposal, held in Izmir.
61 Hakapää and Molenaar (1999).
62 United States, Department of Defence (2016).
63 Dixon (2006), pp. 76–77.
64 Dixon (2006), p. 77.
Innocent Passage Under UNCLOS: An Exploration of the Tenets, Trials. . .
239