The Legal Regime Governing Sea Transport of Ultrahazardous Radioactive Materials

Although the international community has taken some steps to address the risks created by the movements of ultrahazardous radioactive cargoes, important gaps still exist in the legal regime governing these activities. An apparent consensus has been reached at the International Maritime Organization (IMO) to make the Code for the Safe Carriage of Irradiated Nuclear Fuel, Plutonium, and High-Level Radioactive Wastes in Flasks Aboard Ships (the INF Code) mandatory and to seek some clarification of the standards governing shipboard safety. But still lacking are agreements regarding salvage responsibilities, liability of shippers for damages, revision of transport cask safety standards to meet maritime accident conditions, obligations to consult regarding the best routes and to provide advance notification to concerned coastal states, the preparation of environmental assessments, and contingency planning to handle shore emergencies and salvage responsibilities. Until agreements are reached on these important matters, the shipment of these extremely dangerous or "ultrahazardous" materials will continue to violate fundamental norms of international law and comity because they place coastal nations that receive no benefit from the shipments at grave risk of environmental disaster without any legal protections. Because the shipments of ultrahazardous radioactive cargoes are increasing, it is highly advisable for concerned nations to negotiate regional protocols delineating the legal regime that applies to these maritime transports. A draft model protocol is attached at the end of this article which may provide guidance on this effort. It is also appropriate for concerned nations to consider bringing a claim against the shipping nations under the dispute resolution mechanisms established by the 1982 United Nations Law of the Sea Convention. Such a claim would be based on the failure of the shipping nations to comply with their obligations under the convention to prepare and distribute environmental impact assessments, consult with affected nations, prepare emergency contingency plans, and agree to an effective liability regime in the event of an accident. Because of the grave potential risks created by these shipments and because of the failure of the shippers to meet their obligations to protect coastal nations from these risks, coastal nations may be justified under international law to take unilateral or regional action to block future shipments.