But, the concerns of coastal States are not without basis. The MSC Carla carrying
eleven tons of Cesium from France to the United States sank off the Azores coast in
1997. The incident demonstrated that there may be absolutely no response from the
shipowner or the cargo interests in the event of casualty since there was no attempt at
salvage of the MSC Carla citing negligible damage from radiation leak and only
horizontal contamination over time at the sunken depth of 3000 m with no effect on
commercial fisheries. The susceptibility of nuclear ships to attacks by non-State
actors was exposed when protesting Greenpeace activists boarded the Pacific Swan
in 1998 for purposes of demonstration, while the vessel was on a transboundary
voyage carrying 30 tons of Mix-Oxide fuel containing Plutonium. There is also the
possibility that nuclear cargo may be shipped by simply falsifying records with a
view to circumvent regulations, scrutiny and attention, as in the case of falsification
of Cargo Safety Inspection Records in the shipment of Mix-Oxide containers to
Japan by British Nuclear Fuels in 1999, involving five British flagged nuclear ships
that included the Pacific Pintail and the Pacific Swan.
65
A point of argument may arise from the interpretation of Articles 22
66 and 23
67 of
UNCLOS. A plain reading of these two articles would imply that ships carrying
nuclear materials enjoy the right of innocent passage so as long as they follow sea
lanes and traffic separation schemes, carry documents and observe special precautionary measures prescribed for such ships by international agreements. The term of
art, “international agreements” in Article 23 merits examination.
Given that IMO is responsible for regulating safe carriage of nuclear material by
ships, it may be said that Article 23 refers to the IMO Agreement. However, the IMO
Code for the Safe Carriage of Irradiated Nuclear Fuel, Plutonium and High-Level
Radioactive Wastes in Flasks on Board Ships or, INF Code
68 relies primarily on
achieving safeguards through standards of packaging of radioactive materials and
construction, design, and staffing of ships that transport them but does not address
notification or approval of coastal states of shipments or emergency response plans
and is, therefore, inadequate to address the dangers nuclear cargoes and ships present
to coastal states.
If enforcement were to be explored under some other IMO agreement, it has been
suggested that Article 1
69 of the Protocol
70 of 1973 to the 1969 Intervention
65 Dixon (2006), pp. 78–79.
66 UNCLOS Article 22, Sea lanes and traffic separation schemes in the territorial sea, p. 32.
67 UNCLOS Article 23, Foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances, p. 32.
68 IMO Resolution A.748(18) dated 4 November 1993.
69 According to Article 1 of the 1973 Protocol, coastal states may take necessary measures on the
high seas to prevent or mitigate “grave and imminent danger to their coastline or related interests
from pollution or threat of pollution by substances other than oil following upon a maritime
casualty or acts related to such a casualty, which may reasonably be expected to result in harmful
consequences.”
70 Protocol relating to Intervention on the High Seas in Cases of Marine Pollution by Substances
Other than Oil, 1973. U.N.T.S. Vol. 1313-I-21886.
240
A. Hebbar
eleven tons of Cesium from France to the United States sank off the Azores coast in
1997. The incident demonstrated that there may be absolutely no response from the
shipowner or the cargo interests in the event of casualty since there was no attempt at
salvage of the MSC Carla citing negligible damage from radiation leak and only
horizontal contamination over time at the sunken depth of 3000 m with no effect on
commercial fisheries. The susceptibility of nuclear ships to attacks by non-State
actors was exposed when protesting Greenpeace activists boarded the Pacific Swan
in 1998 for purposes of demonstration, while the vessel was on a transboundary
voyage carrying 30 tons of Mix-Oxide fuel containing Plutonium. There is also the
possibility that nuclear cargo may be shipped by simply falsifying records with a
view to circumvent regulations, scrutiny and attention, as in the case of falsification
of Cargo Safety Inspection Records in the shipment of Mix-Oxide containers to
Japan by British Nuclear Fuels in 1999, involving five British flagged nuclear ships
that included the Pacific Pintail and the Pacific Swan.
65
A point of argument may arise from the interpretation of Articles 22
66 and 23
67 of
UNCLOS. A plain reading of these two articles would imply that ships carrying
nuclear materials enjoy the right of innocent passage so as long as they follow sea
lanes and traffic separation schemes, carry documents and observe special precautionary measures prescribed for such ships by international agreements. The term of
art, “international agreements” in Article 23 merits examination.
Given that IMO is responsible for regulating safe carriage of nuclear material by
ships, it may be said that Article 23 refers to the IMO Agreement. However, the IMO
Code for the Safe Carriage of Irradiated Nuclear Fuel, Plutonium and High-Level
Radioactive Wastes in Flasks on Board Ships or, INF Code
68 relies primarily on
achieving safeguards through standards of packaging of radioactive materials and
construction, design, and staffing of ships that transport them but does not address
notification or approval of coastal states of shipments or emergency response plans
and is, therefore, inadequate to address the dangers nuclear cargoes and ships present
to coastal states.
If enforcement were to be explored under some other IMO agreement, it has been
suggested that Article 1
69 of the Protocol
70 of 1973 to the 1969 Intervention
65 Dixon (2006), pp. 78–79.
66 UNCLOS Article 22, Sea lanes and traffic separation schemes in the territorial sea, p. 32.
67 UNCLOS Article 23, Foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances, p. 32.
68 IMO Resolution A.748(18) dated 4 November 1993.
69 According to Article 1 of the 1973 Protocol, coastal states may take necessary measures on the
high seas to prevent or mitigate “grave and imminent danger to their coastline or related interests
from pollution or threat of pollution by substances other than oil following upon a maritime
casualty or acts related to such a casualty, which may reasonably be expected to result in harmful
consequences.”
70 Protocol relating to Intervention on the High Seas in Cases of Marine Pollution by Substances
Other than Oil, 1973. U.N.T.S. Vol. 1313-I-21886.
240
A. Hebbar