The Right to Control Passage of
Nuclear Transport Vessels
Under International Law

by the Geneva Conventions and subsidiarily by customary international law, including in particular the precautionary principle. UNCLOS is now in force, having entered into force on November 16, 1994 and while some states, most notably the United States, have not ratified UNCLOS, and thus the applicable law strictly speaking may derive from the 1958 Geneva Conventions, including in particular the Convention on the Territorial Sea and the Contiguous Zone (CTS), [10] the UNCLOS provisions are widely held to represent customary international law, and indeed, EEZs derive not from the CTS but from UNCLOS and, to the extent that UNCLOS does not apply, from customary international law. UNCLOS prevails over the earlier Geneva Conventions as between states Parties to UNCLOS. [11]

There is no specific provision in either CTS or UNCLOS allowing States to impose the requirement of prior permission of civilian vessels to begin innocent passage. Nor is there any support in State practice for such a practice. States may not hamper [12] or levy charges [13] on innocent navigation. [14] They may not discriminate among ships of different foreign flags [15] or among ships carrying cargoes to, from or for other States. [16] Judicial dicta [17] have also supported a 'great principle of public international law' that ports can only be closed when necessary in the vital interests of the State.

States may take, impose and enforce conditions for admission to internal waters [18] but vessels enjoy the right of innocent passage from and to the internal seas. [19]

2.1. Passage through Territorial Seas

The test for innocence is objective, requiring an actual act, rather than intent. [25] The Territorial Sea Convention stated that [26] "Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with these articles and with other rules of international law." Even this was somewhat coloured by the deprivation of innocence from foreign fishing vessels ipso facto by the breach of coastal laws and regulations. [27] Coastal states may take necessary steps in its territorial sea to prevent non-innocent passage [28] and may suspend innocent passage if such suspension is essential for the protection of its security, provided that such suspension is duly published. [29] Additionally, passage is not innocent if it is prejudicial to the peace, good order or security of the coastal state. [30] A coastal state certainly may consider that the passage of a vessel, an accident involving which could have catastrophic consequences for that state, is prejudicial to the peace, good order or security of the state.

Ships exercising the right of innocent passage must comply with the laws and regulations enacted by the coastal State in conformity with international law [31].

Coastal states may in the exercise of their sovereignty within their territorial sea, adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels, including vessels exercising the right of innocent passage provided that such laws and regulations shall not hamper the innocent passage of foreign vessels under Part II, Section 3 of UNCLOS. [32]

2.2. Transit Passage

2.2.1. Transit Passage Under Customary International Law and the 1958 Conventions

Some states, particularly littoral States such as states bordering the Malacca Straits, [34] and some jurists [35] hold that the right of passage under customary international law is a non-suspensible right of innocent passage. When considered with Article 16(4) of TSC [36] which embodies this rule, this can be fairly stated to be the rule at least prior to the entry into force of UNCLOS.

However the prohibition on suspension is not to say that regulation is prohibited nor that the right of passage is unlimited. Given the requirement of innocence, the normal interests of littoral states, including the protection from threats to their security still apply.

2.2.2. Transit and Archipelagic Sea Lanes Passage under UNCLOS

2.2.2.1. Transit Passage

UNCLOS does not allow suspension of transit passage [39] and does not in general require innocence [40] but would impose inter alia the following restrictions on transit passage:

Transit passage must be solely for the purpose of continuous and expeditious transit. [41] Transit ships must comply with generally accepted international regulations, procedures and practices for safety at sea [42] and for the prevention, reduction and control of pollution from ships. [43] Ships and aircraft must proceed without delay through or over the strait, refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations and must refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress, and must comply with other relevant provisions of Part II of UNCLOS. [44] Research or survey activities undertaken without the prior permission of the littoral states is prohibited. [45]

Any activity which is not an exercise of the right of transit passage through a strait remains subject to the other applicable provisions of the Convention. [46] Such activity would thus bring the passage in territorial waters within the innocent passage provisions: the passage could, for instance, be prevented if non- innocent. Note that there must be an 'activity' which is not 'an exercise of the right of transit passage'. An activity falling outside Article 38(2) requirements of continuous and expeditious transit, for instance, could render the passage outside 'transit passage'.

UNCLOS would, furthermore, allow States bordering straits to adopt laws and regulations in respect of the prevention, reduction and control of pollution, by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait [47] provided that such laws and regulations are not discriminatory and do not in their application have the practical effect of denying, hampering or impairing the right of transit passage [48] and have been duly publicized. [49]

If a foreign ship not entitled to sovereign immunity has committed a violation of the laws and regulations relating to the provisions in Art. 42 (1)(a) and (b) relating to safety and pollution prevention, reduction and control, causing or threatening major damage to the marine environment of the straits, the States bordering the straits may take appropriate enforcement measures. [50]

2.2.2.2. Archipelagic Sea Lanes Passage

2.3. Passage through the Contiguous Zone

State practice with respect to contiguous zones has been variable. Not all states have claimed contiguous zones, [62] some states that have claimed such zones have either claimed only limited jurisdiction such as customs zones [63] and others have claimed additional jurisdiction including security protection zones and extended contiguous zones. [64]

Under UNCLOS such extended jurisdiction may have greater weight since the contiguous zone will most likely be part of the EEZ and since States are directed in exercising their rights and performing their duties under UNCLOS in the EEZ to "have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part". [65] Furthermore, where UNCLOS does not attribute rights or jurisdiction to the coastal State or to other States within the EEZ and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole. [66]

2.4. Passage through Exclusive Economic Zones

Freedoms of navigation referred to in Article 87 and 'other internationally lawful uses of the sea related to those freedoms' [71] are accorded to all States provided that:

(1) Articles 85 to 115 and other pertinent rules of international law apply to the EEZ provided that they are not incompatible with UNCLOS Part V [72], and

(2) In exercising their rights and performing their duties under UNCLOS, States must have due regard to the rights and duties of the coastal State and must comply with the laws and regulations adopted by the coastal State in accordance with the provisions of UNCLOS and other rules of international law in so far as they are not incompatible with UNCLOS Part V. [73]

3. Preservation of the Marine Environment

There are provisions in UNCLOS for international organizations to establish rules and standards with respect to pollution of the marine environment from vessels. [79] Coastal States, for the purpose of enforcement as provided in section 6 of UNCLOS, may in respect of their EEZs adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to generally accepted rules and standards established through the competent international organization or general diplomatic conference. [80] In certain circumstances coastal States may adopt laws and regulations for special areas after consultation and communication with the competent international organization. [81]

3.1. Enforcement in Case of Violation of Pollution Requirements in the EEZ

Where such a violation results in a substantial discharge causing or threatening significant pollution of the marine environment that State may undertake a physical inspection of the vessel if the vessel has refused to give information or if the information supplied by the vessel is manifestly at variance with the evident factual situation and if the circumstances of the case justify such inspection. [83]

Where such a violation results in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State, or to any resources of its territorial sea or EEZ, that State may, provided the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws. [84] This provision is subject to any applicable provisions with respect to bonding or other appropriate financial security. [85]

The rights of coastal States to take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coastline or related interests from pollution or threat of pollution following upon a maritime casualty or acts relating to such a casualty, which may reasonably be expected to result in major harmful consequences, are specifically preserved. [86]

However the Article 220 provisions are permissive, rather than exclusive. UNCLOS, and international law, including customary international law, grant other rights and impose other duties to protect the environment. For instance, Canada recently has claimed jurisdiction to arrest fishing vessels outside its EEZ based inter alia on the doctrine of necessity and the violations of international law by the flag state.

3.2. The Basel Convention

As passage must take place in conformity with international law [87] it is relevant to look at rules of international law applicable to the navigation of nuclear goods. There is a question as to whether the Basel Convention applies to radioactive waste. While Article 1(3) excludes from the scope of the Convention "[w]astes which, as a result of being radioactive, are subject to other international control systems, including international instruments, applying specifically to radioactive materials", the closest approximation to such a control system in place is the International Atomic Energy Agency (IAEA) which has not in fact instituted a code of practice and not an international instrument. There therefore is a good argument that radioactive wastes can be included in Basel under Article 1(b), as wastes that are hazardous wastes by the domestic legislation of the Party of export, import or transit. During the preparatory meetings, representatives of the IAEA argued that the Agency intended to institute binding control mechanisms. However arguably no such mechanism has been implemented and Basel Convention Working Groups have stated that nuclear waste can be interpreted to be included under the Convention.

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal [88] imposes a number of general obligations on Parties, including the obligation to take appropriate measures to [89]

(d) Ensure that the transboundary movement of hazardous wastes and other wastes is reduced to the minimum consistent with the environmentally sound and efficient management of such wastes, and is conducted in a manner which will protect human health and the environment against the adverse effects which may result from such movement; and

(f) Require that information about a proposed transboundary movement of hazardous wastes and other wastes be provided to the States concerned, according to Annex V A, to state clearly the effects of the proposed movement on human health and the environment; and

(h) Co-operate in activities with other Parties and other interested organizations, directly and through the Secretariat, including the dissemination of information on the transboundary movement of hazardous wastes and other wastes, in order to improve the environmentally sound management of such wastes and to achieve the prevention of illegal traffic. [90]

Article 4 (12) provides that

Nothing in this Convention shall affect in any way the sovereignty of States over their territorial sea established in accordance with international law, and the sovereign rights and the jurisdiction which States have in their exclusive economic zones and their continental shelves in accordance with international law, and the exercise by ships and aircraft of all States of navigational rights and freedoms as provided for in international law and as reflected in relevant international instruments.

Note that Japan has entered a declaration [91] that

1. The Government of Japan understands that nothing in this Convention shall be deemed to require notice to or consent of any state for the mere passage of hazardous wastes on a vessel of a Party exercising its navigation rights under international law.

A transit State [92] may withhold consent to a notice of transit. [93] Transboundary movement of hazardous wastes or other wastes without due notification or consent or which does not conform in a material way with documents is illegal traffic [94], which designation triggers certain requirements to take back or dispose of the waste and should trigger domestic penalties. [95]

3.3. The Precautionary Principle

3.3.1. The Precautionary Principle Under Customary International Law

To this it may be added that it is increasingly difficult to find examples of states publicly denouncing the precautionary principle or citing scientific uncertainty as a legitimate basis for action or inaction. Thus at the very least, the opinio juris is well established and the state practice as evidenced in the conclusion of international conventions and practice within those conventions strongly supports the existence of the principle.

3.3.2. The Meaning of the Precautionary Principle

The precautionary approach is a template for policy, demanding foresight and planning from decision-makers. [100] It requires that once environmental damage threatens [101] action should be taken to abate possible environmental interference even though there may still be scientific uncertainty as to the effects of the activities. [102] As such, it moves forward the time for making a decision: procrastination or delay predicated upon uncertainty is not permitted. The argument of uncertainty as a reason for postponing or not making a decision is no longer available to states. As noted in a recent Dutch discussion paper [103], in essence, two aspects can be distinguished to implementing a precautionary approach, that is the adoption of norms and standards which are precautionary on one hand and the adoption and implementation of procedures which will foster precaution on the other. The latter relates to the question of time: the implementation of precautionary measures excludes a 'waiting for scientific proof before acting'-approach but requires immediate action instead. Thus it moves forward the time for taking preventive measures if scientific uncertainty on environmental effects remains.

It has been said for instance in the context of the London Dumping Convention [104] that the precautionary principle has led to the reversal of the burden of proof, [105] so that in cases of scientific uncertainty as the to possible effect of certain activities, the burden of proof is passed on to the potential actor (polluter), who must prove that his activities will not damage the environment. However insofar as the burden of proof is a procedural concept and the precautionary principle is a substantive concept which removes the ability to cite uncertainty as a reason for procrastination, it may be better to think of the concepts as separate, at least for present purposes.

3.3.3. The Obligation to Apply the Precautionary Principle in the Marine Environment

States, in accordance with the provisions of the United Nations Convention on the Law of the Sea on protection and preservation of the marine environment, commit themselves, in accordance with their policies, priorities and resources, to prevent, reduce and control degradation of the marine environment so as to maintain and improve its life-support and productive capacities. To this end, it is necessary to:

(a) Apply preventive, precautionary and anticipatory approaches so as to avoid degradation of the marine environment, as well as to reduce the risk of long-term or irreversible adverse effects upon it; [107]

Chile has the jurisdiction to protect and preserve the marine environment under UNCLOS. [108] In doing so, it should apply the precautionary principle as formulated in Chapter 17 of the Rio Declaration, and has in fact done so.

Likewise Britain, as flag state of the Pacific Pintail, should apply the precautionary principle to ships flying its flag to avoid the very serious potential effect of a devastating nuclear accident, just as Chile, as the state responsible for the EEZ, must apply the principle to the EEZ.

A Chilean naval vessel, on behalf of a coastal state responsible for its EEZ in the Cape Horn region, has in fact cited the precautionary principle as a primary reason for banning the Pacific Pintail from its EEZ: " Chilean Navy: Pacific Pintail, Chilean Navy Ship, I inform you that the carrying of your radioactive material is a violation of the precaution[ary] principle....stated in the Rio de Janeiro declaration of the sea environment dated 1992, over'. [109] The Pacific Pintail initially refused, claiming right of passage, but later changed course and headed due south out of Chile's EEZ. The Pacific Pintail was ordered by the Chilean Navy to sail South to a latitude of 59 degrees and 35 minutes before being permitted to set sail west for the Pacific ocean, and complied with the request. [110]

3.3.4. Specific Jurisdiction in Ice Covered Areas

4. Specific Provisions and Recent State Practice on Nuclear Vessels

4.1. Specific Rights to Ban and Control Nuclear Powered Vessels and Nuclear Carriers

Nuclear powered vessels and vessels carrying radioactive material must, in exercising innocent passage through the territorial sea, carry documents and observe special precautionary measures established for such ships by international agreements, and must use designated sea lanes, under Articles 22 and 23 of UNCLOS. [114] While this provision falls short of a mandate to require authorization of nuclear ships prior to innocent passage, it is common for flag States to request permission prior to entry into ports, and such permission could be premised upon the observance of certain conditions.

4.2. Control of Nuclear Vessels for Reasons of State Security and Protection

Even if a State has not publicized a suspension, the mere passage of an unusually dangerous cargo could be prevented [116] as non-innocent where such passage is prejudicial to the peace, good order or security of the coastal State or such passage does not take place in conformity with the law of the sea and with other rules of international law, including, in this case, the Basel Convention. [117] Under UNCLOS, passage is specifically considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in specified activities. [118] The list is not necessarily exclusive and it therefore is a good argument that an extraordinarily dangerous cargo which could have disastrous consequences on a coastal State is itself prejudicial to the peace, good order or security of the coastal State.

Canada in 1970 made a similar argument with respect to regulating tanker traffic 100 miles from its coastline in the arctic. Its Canadian Arctic Waters Pollution Prevention Act of 1970. [119] The Canadian government claimed the "overriding right of self-defence of coastal states to protect themselves against grave threats to their environment". [120] The protest continued:

Traditional principles of international law concerning pollution of the sea are based in the main on ensuring freedom of navigation to shipping states which are now engaged in the large scale carriage of oil and other potential pollutants. Such traditional concepts are of little or no relevance anywhere in the world if they can be cited as precluding action by a coastal state to protect its environment.

4.3A Rules on the Construction and Operation of Nuclear Transport Vessels

The Minister of State at the Department of the Marine, Mr Eamon Gilmore TD, on April 5th announced a number of measures which the Irish Government is taking with respect to nuclear ships in the Irish Sea. Mr Gilmore stated that

In our view the INF Code is deficient in a number of respects. We have decided therefore to present papers to the next meetings of the Maritime Safety Committee (May) and Marine Environment Protection Committee (September) of the IMO, so that the Code can be placed on the agenda for the next IMP Assembly in November. The papers will identify deficiencies in the safety and environmental aspects of the Code and will press for expansion to make the Code more effective. Among the measures which we will be seeking will be:
• the restriction and exclusion of certain routes for these shipments;
  
• a requirement to notify and consult with coastal states prior to journey;
  
• more information in relation to journey and cargoes;
  
• more effective methods of safety planning and inspection.

  We will be seeking the support of the other members of the International Maritime Organisation to support us to secure those necessary changes to the INF Code."

4.3. Recent State Practice on Nuclear Vessels

That practice provides strong support for the right to ban the Pacific Pintail from EEZs. Chile, Brazil and Argentina have all expressly banned the vessel from their EEZs.

* Puerto Rico and the Dominican Republic have rejected the ship's passage through the Canal de la Mona strait in the Caribbean Sea. [123]

* The Argentine Foreign Ministry informed Tokyo it would not allow the ship to pass through its waters after learning that the route around Cape Horn was being considered. [124]

* Voicing concern for human life and the environment, the Chilean government has firstly expressed its concern, stating that it would be unsuitable for the ship Pacific Pintail to venture into Chilean territorial waters with its cargo of highly radioactive plutonium. [125] Likewise, in a statement released by the foreign ministry, the government of President Eduardo Frei said it had "notified the countries involved of the inappropriateness of including the territorial waters of Chile in its route." [126]

* About 20 mostly Caribbean and Pacific countries, have expressed concern at the voyage -- and some have warned they will the prevent the ship from entering their territorial waters. [127]

* Brazil banned the vessel from its waters, stating that "The Brazilian government considers undesirable, in any circumstances, the entry of this cargo in areas that come under Brazilian jurisdiction." [128]

Chile later in March took the most robust view to date, not only specifically banning the vessel from its 200 mile EEZ, but sending ships and aircraft to enforce the ban. [129]

On March 16th, the Chilean government adopted a resolution forbidding the Pacific Pintail to sail in its territorial and jurisdictional waters. [130] According to a preliminary translation of this resolution, the resolution provided that

The Chilean Maritime Authority, considering that:

1. It is the duty of the Maritime Authority to foresee the threat to the marine environment, as well as to human health, life and security in the seas, posed by the passage through national sovereign and jurisdictional waters of the British ships Pacific Pintail or European Shearwater, carrying a shipment of cylinders with vitrified nuclear wastes containing 16.800.000 Curie units of radioactivity.

2. According to the principles of the new Law of the Sea, the exercise of the right [to free] navigation should not have a negative effect on the protection and preservation of the marine environment and the conservation of live resources, the coastal State having the duty to take care of the same.

3. The available international means are neither enough nor appropriate to address the unforceable consequences of a radioactive catastrophe.

4. The above mentioned transport violates the "precautionary principle", which is embodied in the 1992 Rio Declaration on the Environment and Development.

5. The relevant international bodies, the International Maritime Organization and the International Atomic Energy Agency, following the recommendations issued by the IMO Committee for the Protection of the Marine Environment, are carrying out, in association with UNEP, an in-depth study of the transport of radioactive materials by sea, in order to adopt a Code on the Safe Transport of Irradiated Nuclear Fuel (INA),

6. Until the adoption of more stringent international regulations, to address the actual safety requirements for the transport of radioactive substances, it is necessary to ban the passage through waters under national jurisdiction of all those ships carrying such substances.

7. Particularly severe weather conditions in the far South (of the Continent) and the Cape Horn route specifically, increase the ordinary risks of navigation.

In its preamble the Resolution, besides citing relevant national Chilean legislation, referred to Article 1 and all other articles of the 12 November 1981 Lima Convention on the Protection of the Marine Environment and the Coastal Zone in the Southeastern Pacific.

According to reports,

"Warning of the possibility of a "radioactive catastrophe," Chile on Thursday banned the British ship Pacific Pintail from its 200-mile coastal waters as the freighter headed for the treacherous Drake Passage between South America and Antarctica. "This vessel will not enter Chilean waters. It will have to navigate through international waters," said the navy commander-in-chief Admiral Juan Martinez Busch.

Navy vessels and planes will track the ship's movement "from the moment it approaches our longitudes," he told reporters. A navy statement said the Pacific Pintail, loaded with reprocessed nuclear fuel and barred from a long list of coastal nations, must stay out of Chilean waters "as long as it carries nuclear or radioactive materials."...

"We've got enough legal arguments and arguments to protect human health, ecology and the environment in the area to demand that this boat not pass through Chilean territorial waters," acting Foreign Minister Mariano Fernandez said on Thursday.

Chile later sent a naval vessel which warned the Pacific Pintail that it had been banned from its EEZ under the precautionary principle. After some discussion, in which the Pacific Pintail claimed the right of passage, the Pacific Pintail subsequently changed course south. [131] The captain of the vessel then received permission to remain in the EEZ to avoid a storm, after agreeing to then leave the EEZ once the storm had passed. [132]

Chile's Foreign Minister, Jose Miguel Insulza, said that a "very strong protest" will be delivered to the governments of Japan, France and the UK over the high level nuclear waste shipment through Cape Horn. Such steps are necessary he said "in order to prevent a recurrence of this kind of activity, since we understand that this took place in the framework of a long-term programme" of high level nuclear waste shipments. [133]

* Kiribati has banned the vessel from its EEZ. [134]

* Fiji sent a diplomatic note to Japan to ensure the ship was kept out of its territorial waters and called on Japan to rethink its policy on transporting radioactive waste. [135]

* The South Pacific Forum countries expect to consider and adopt a convention banning the import and movement of hazardous and toxic wastes in the region at the next Forum meeting in Papua New Guinea in September. [136]

5. Conclusion and Recommendations

* the obligation of states to preserve the marine environment generally [137] and the jurisdiction of the coastal state to protect and preserve the marine environment in the EEZ; [138]

* the right of the coastal states to protect itself from a potentially grave danger to its security, giving rise to right to suspend innocent passage in such circumstances and [139]

* the precautionary principle. [140]

States doing so should

1. Pass appropriate enabling legislation;

1. Notify the flag state and other interested states of their decision, with reasons;

2. Apply their laws in a non-discriminatory manner;

3. Inform any affected vessel if it appears to intend to pass through the state's EEZ that it is prohibited from doing so and require the vessel to change course away from the EEZ and monitor the course of the vessel; and

4. Lodge a diplomatic protest with the flag state if the vessel continues to navigate through its EEZ

Additionally, states should co-operate with other states and international organizations to develop routeing systems and other procedures to deal with highly radioactive nuclear cargoes. [141]

Bibliography

Innocent Passage

P.C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927)

H. S. K. Kent, "Historical Origins of the Three Mile Limit", 48 AJIL 537 (1954)

L.T. Lee, "Jurisdiction Over Foreign Merchant Ships in the Territorial Sea. An Analysis of the Geneva Convention on the Law of the Sea," 55 AJIL 77 (1961)

W.E. Masterson, Jurisdiction in Marginal Seas (1929)

D.P. O'Connell, "The Juridical Nature of the Territorial Sea", 45 BYIL 303 (1971)

D.P. O'Connell, "Innocent Passage of Warships", 7 Thesaurus Acroasium405 (1977)

S.A. Schwartztrauber, The Three-Mile Limit of Territorial Seas (1972)

S. Slonim, "Right of Innocent Passage and the 1958 Geneva Conference on the Law of the Sea", 5 Col. J. Transnt. Law 96 (1966)

Smith, "Innocent Passage as a Rule of Decision: Navigation v. Environmental Pollution", 21 Col. J. Transn'l L. 49 (1983)

Straits

J.N. Moore, "The Regime of Straits and the Third United Nations Conference on the Law of the Sea", 74 AJIL 77 (1980)

E. Brüel, International Straits, Copenhagen (1947)

D.H.N. Johnson, "Some legal problems of international waterways, with particular reference to the Straits of Tiran and the Suez Canal", 31 Modern Law Review 153 (1968)

Nuclear Transport Vessels
Under International Law

Table of Contents

1. The Voyage of the Pacific Pintail

2. International Law Applying to The Transit of Hazardous Cargoes: Innocent Passage, Transit Passage, and Passage through EEZs

2.1. Passage through Territorial Seas

2.2. Transit Passage

2.2.1. Transit Passage Under Customary International Law and the 1958 Conventions

2.2.2. Transit and Archipelagic Sea Lanes Passage under UNCLOS

2.2.2.1. Transit Passage

2.2.2.2. Archipelagic Sea Lanes Passage

2.3. Passage through the Contiguous Zone

2.4. Passage through Exclusive Economic Zones

3. Preservation of the Marine Environment

3.1. Enforcement in Case of Violation of Pollution Requirements in the EEZ

3.2 . The Basel Convention

3.3. The Precautionary Principle

3.3.1. The Precautionary Principle Under Customary International Law

3.3.2. The Meaning of the Precautionary Principle

3.3.3. The Obligation to Apply the Precautionary Principle in the Marine Environment

3.3.4. Specific Jurisdiction in Ice Covered Areas

4. Specific Provisions and Recent State Practice on Nuclear Vessels

4.1. Specific Rights to Ban and Control Nuclear Powered Vessels and Nuclear Carriers

4.2. Control of Nuclear Vessels for Reasons of State Security and Protection

4.3. Recent State Practice on Nuclear Vessels

4.3A Rules on the Construction and Operation of Nuclear Transport Vessels

5. Conclusion and Recommendations

Innocent Passage

Straits

Route Map of Pacific Pintail

Bibliography

Appendix I: Chile Enforces Nuclear Ship Ban

Appendix II: Transcript of radio traffic between Pacific Pintail and Chilean Navy 20 March 1995, 1400 GMT

Appendix I: Chile Enforces Nuclear Ship Ban

seas off the southern tip of South America to ensure a Japan-bound freighter

loaded with radioactive plutonium stays out of Chilean waters, the navy

commander said on Friday.

Warning of the possibility of a "radioactive catastrophe," Chile on

Thursday banned the British ship Pacific Pintail from its 200-mile coastal

waters as the freighter headed for the treacherous Drake Passage between South

America and Antarctica.

"This vessel will not enter Chilean waters. It will have to navigate

through international waters," said the navy commander-in-chief Admiral Juan

Martinez Busch.

Navy vessels and planes will track the ship's movement "from the moment it

approaches our longitudes," he told reporters.

A navy statement said the Pacific Pintail, loaded with reprocessed nuclear

fuel and barred from a long list of coastal nations, must stay out of Chilean

waters "as long as it carries nuclear or radioactive materials."

The ban followed demands by the Chilean Senate, the country's largest

labour union confederation and a dozen ecology groups that the freighter be

prohibited from coming anywhere near Chile.

"We want to have the most absolute certainty there will be no accidents in

Chile's territorial waters because it would be a catastrophe of extraordinary

proportions," said Martinez. "Perhaps nothing will happen, but the question is

what happens if it does."

Late on Thursday the cargo ship was reported heading southwest in

international waters off the coast of southern Argentina on its route to Japan,

Chilean officials said.

Barring a sudden veer east toward Africa, it would pass this weekend

through the Drake Passage, known to centuries of ship captains for its stormy

weather, wild currents and stray icebergs.

Ships stationed at the port of Puerto Williams, on Navarino Island just

north of Cape Horn, will sail toward the area where the Pacific Pintail is

likely to pass, said Martinez.

But if the freighter suffered any kind of distress, "there is technically

very little we can do, and that in a sense is even more serious," he said.

The British naval chief, Admiral Sir Benjamin Bathurst, happened to be

visiting Chile this week and said he believed the British-flagged ship's safety

measures were fully adequate.

"Personally I am convinced that all precautions are being taken, and that

all necessary measures have been taken for the shipment's safety," Bathurst,

visiting the port of Talcahuano, was quoted as saying in the Santiago newspaper

El Mercurio.

Officials of President Eduardo Frei's government hardened their stand

against letting the ship into Chilean waters, as ecological groups said

anything less might turn Chile into an east-west transshipment point for

hazardous wastes.

"We've got enough legal arguments and arguments to protect human health,

ecology and the environment in the area to demand that this boat not pass

through Chilean territorial waters," acting Foreign Minister Mariano Fernandez

said on Thursday.

The freighter left the French port of Cherbourg last month amid protests

by ecologists. The environmental activist group Greenpeace has tracked the ship

on its voyage to highlight the alleged dangers of the nuclear shipment.

REUTER

Appendix II: Transcript of radio traffic between Pacific Pintail and Chilean Navy 20 March 1995, 1400 GMT

CN: Pacific Pintail, Pacific Pintail, this is Chilean Navy ship, over;

PP: Chilean Navy Ship this is Pacific Pintail, channel 12 please;

CN: Pacific Pintail, this is Chilean Navy Ship Micalva, Micalva, over;

PP: Yes, go ahead please, this is Pacific Pintail;

CN: Pacific Pintail this is Chilean Navy Ship, I have a message for you, please acknowledge ready to copy, over;

PP: This is Pacific Pintail, we are ready to copy, over;

CN: Pacific Pintail this is Chilean Navy Ship, the Chilean Maritime Authority on behalf of the Chilean Government according with International agreement of preservation of the sea environment has taken the following resolution: Resolution Number 12600/67 dated March 16 1995: Please let me know if you copy OK; PP Yes I copy that OK, over;

CN: OK, Pacific Pintail, resolution number 12600/67. Pacific Pintail vessel it is forbidden, it is forbidden to go through Chilean Territorial waters or Exclusive Economic Zone carrying radioactive or nuclear material, over;

CN: Pacific Pintail, Chilean Navy Ship, let me know if you copy OK;

PP: This is Pacific Pintail, I copy that OK, over; CN: OK, this is Chilean Navy Ship, OK Now according, according with this resolution, with this resolution you are not allowed to go through Chilean Exclusive Economic Zone, I repeat, you are not allowed to go through Chilean Economic Exclusive Zone, over;

PP: I copy that, over;

CN: OK Pacific Pintail then you must....turn port, port general course south, with general course south, until parallel 59 35 minutes, 59 35 minutes then you're allowed to go through general course west, over;

PP: I copy your message, over;

CN: Pacific Pintail this is Chilean Navy Ship, if you copy my message acknowledge and tell me your intentions, over; PP: This is Pacific Pintail, I copy your message, I copy your message. My passage plan does not transit the territorial seas of Chile. As my vessel is engaged in a lawful trade no foreign state has a lawful right to interfere with my navigation on the high seas and since we are outside your country's territorial seas I am therefore on the high seas and therefore should have freedom of passage. I shall have to contact my owners and the British Government to pass on your message, over.

CN: Chilean Navy ship, over. Pacific Pintail, Pacific Pintail, this is Chilean Navy ship. From now on you will be tracked during your sailing in our Economic Exclusive Zone. Now, if you maintain your attitude, if you maintain your attitude we will inform the international community, the international community that you have not agreed with a decision of the Chilean State, over;

PP: I copy what you say, over;

CN: Pacific Pintail, this is Chilean Navy ship, I inform you, I inform you that the Chilean State reserves the right to use... force, to use the force if you do not accomplish our resolution in order to maintain our interests in our Economic Exclusive Zone, over;

PP: I hear what you say and I will pass this on to the British Government via my owners, over;

CN: OK, Pacific Pintail, Pacific Pintail, from now on....you are [could be] exposed to the use of weapons against you from navy vessels or air [planes] of the Chilean Navy....[repeated] over;

PP: I, I hear your message and with the nature of our cargo I would not think that is a very sensible thing to do, to use arms, over;

CN: Then...turn to your port side, turn to your port side and assume general course south, you are not allowed to go through our Exclusive Economic Zone, you are to pass south latitude 59 35 south, over; (pause) ...

CN: Pacific Pintail, this is Chilean Navy Ship, from now on I will interfere you navigation, I will interfere [with] your navigation and I will throw ropes to the water in order to stop you if it is necessary, I will throw ropes to the water in order to stop you if it is necessary, over;

PP: This is Pacific Pintail, I acknowledge that message, over; CN: Chilean Navy ship, Pacific Pintail this is Chilean Navy ship, let me know your intentions, over;

PP: This is Pacific Pintail, I am waiting for a message from my owners via the British Government, over;

PP: This is Pacific Pintail my instructions are to proceed with our present course, we are outside your territorial waters, over; CN: Chilean Navy ship, ... (break) ....Pacific Pintail, Chilean Navy ship, ....I inform you that at this moment you are in Chilean Economic, Chilean Exclusive Economic Zone you are in Chilean waters, Chilean Economic Exclusive Zone, over; PP: This is Pacific Pintail, I acknowledge your message, over; CN: Pacific Pintail, Chilean Navy Ship, I inform you that the carrying of your radioactive material is a violation of the precaution[ary] principle....stated in the Rio de Janeiro declaration of the sea environment dated 1992, over; PP: I heard your message, over; CN: Pacific Pintail, resolution no 12600/67 dated March 16 1995 from the Maritime Authority on behalf of the Chilean government states that Pacific Pintail vessel it is forbidden to go through Chilean Territorial waters or Exclusive Economic Zone carrying radioactive or nuclear material, over;

PP: This is Pacific Pintail, we are outside your territorial waters and therefore we request a free passage since we are carrying a legal cargo, over;

CN: Chilean Navy Ship, you are in our Exclusive Economic Zone and according with precaution principle, precaution principle stated in the Rio de Janeiro declaration of the sea environment you are not allowed, you are not allowed to go through our Exclusive Economic Zone, over;

PP: This is Pacific Pintail, according to my instructions from the British Government we should have free passage since we are outside your territorial waters, over;

CN: This is Chilean Navy ship, roger. I repeat.... you must leave, you must leave Chilean Economic Exclusive Zone because the carriage of your material, the carriage of your radioactive material is a violation of the precaution[ary] principle...stated in the Rio de Janeiro declaration of the sea environment dated 1992, over; PP calls CN

CN: Chilean Navy ship, go ahead, Pacific Pintail PP: This is Pacific Pintail, I am now going towards a course to the south, over;

Route Map of Pacific Pintail as at 22 March 1995

Current map with daily updates is available on the Internet at www.greenpeace.org/nonukes/pintail.html

Footnotes

[1] AP Wire story 21st February 1995

[2] Ibid.

[3] RTf 10/08 0802 "Plutonium ship said not entering territorial water". Reuters Report, 9 October 1992. (9 October Report)

[4] Nucleonics Week, V. 36, March 17, 1995,1 5, quoting Foreign Ministry Press Secretary Terusake Terada.

[5] Nucleonics Week, V. 36, March 17, 1995,1 5, quoting Foreign Ministry Press Secretary Terusake Terada.

[6] UNCLOS, Article 8

[7] UNCLOS, Article 3

[8] UNCLOS, Article 57

[9] United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, entered into force 16 November 1994, in XXI ILM (hereafter UNCLOS) Art. 17

[10] Convention on the Territorial Sea and the Contiguous Zone, Geneva, 29 April 1958, entered into force 10 September 1964, 516 UNTS 205 (hereafter CTS).

[11] UNCLOS Article 311

[12] CTS Art. 15(1)

[13] CTS Art. 24(1)

[14] See Hague Draft, Art. 6

[15] TSC Art. 18(2), UNCLOS Art. 26(2). See Hague Draft, Art.

[16] UNCLOS Art. 24(1)(b). See Hague Draft, Art. 6.

[17] ARAMCO v Saudi Arabia (1958) 27 ILR 117, "According to a great principle of public international law, the ports of every State must be open to foreign merchant vessels and can only be closed when the vital interests of the State so require."

[18] CTS, Art (16(2), UNCLOS Art. 25(2), but see especially the Convention and Statute on the International Regime of Maritime Ports, Geneva, 9 December 1923, entered into force 26 July 1926, 58 LNTS 55, 287.

[19] UNCLOS Art 18(1), CTS Art. 14(2).

[20] CTS Art. 14 (3).

[21] CTS Article 14(3) and UNCLOS Article 18. Art. 18 of UNCLOS defines passage:

(1) Passage means navigation through the territorial sea for the purpose of:

(a) Traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or

(b) Proceeding to or from internal waters or a call at such a roadstead or port facility.

(2) Passage shall be continuous and expeditious. However passage includes stopping and anchoring, but only insofar as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.

[22] UNCLOS, Article 24

[23] UNCLOS, Article 25(1)

[24] UNCLOS, Article 25(2)

[25] The 1930 Hague Conference declared that "[P]assage is not innocent when a vessel makes use of the territorial sea of a coastal State for the purpose of doing any act prejudicial to the security, to the public policy or to the fiscal interests of that State." League of Nations Doc. C. 351 (b). M. 145 (b). 1930, 217. This formulation has been reinforced in arbitration, as in The David (1930), legislation (See for instance Art. 4 of the Bulgarian Decree of 25 August 1935, UN Leg. Ser. B/1, 53. But cf. the Burmese Territorial Sea and Maritime Zones Law 1977, Art. 4, UN Leg. Ser. B/19, 8, the Pakistan Territorial Waters and Maritime Zones Act 1976 Art. 12, UN Leg. Ser. B/19, 85 and the Yugoslavian Law of 22 May 1965 Art. 6, UN Leg. Ser. B/15, 188. For legislation on the new UNCLOS, see UN Leg. Ser. B/19, 21.) and in jurisprudence: see the Corfu Channel [1949] ICJ Rep. 1 and see Japan v. Kulikov [1954] 21 ILR 105. In the Corfu Channel, the ICJ specifically looked at the actual acts, the manner of the passage, and, furthermore, made it clear that the manner of the passage is for independent determination.

[26] Art. 14(4)

[27] Art. 14(5)

[28] CTS Article 16(1)

[29] CTS Art. 16(3)

[30] UNCLOS Article 19(1). While UNCLOS Article 19(2) lists a number of activities which render a passage prejudicial to the peace, good order or security of the coastal state, such list is not necessarily exhaustive. Even so, states may argue that the passage of a highly radioactive nuclear cargo vessel can fall within '(h) any act of wilful and serious pollution contrary to this Convention'.

[31] UNCLOS Article 21(4), CTS Article 17. See Article 19 for the criminal jurisdiction over vessels in innocent passage.

[32] UNCLOS Art. 211(4)

[33] Article 16(4) of the TSC, following the Corfu Channel case, prohibited the suspension of innocent passage through straits used for international navigation between one part of the high seas and another part of the high seas or the territorial seas of a foreign State.

[34] See the 1971 Declaration of Indonesia, Malaysia and Singapore in New Directions in the Law of the Sea, ed. R. Churchill et al, IV, 330.

[35] See Churchill and Lowe, The Law of the Sea, 83.

[36] CTS Article 16(4) provides that there shall be no suspension of the innocent passage of foreign ships through straits which are used for international navigation between one part of the high seas and another part of the high seas or the territorial sea of a foreign state.

[37] UNCLOS Art. 35(c), 36, 38(1) and 45.

[38] UNCLOS Art. 37

[39] UNCLOS Art. 44

[40] Note the right of non-suspensible innocent passage provided in Art. 45 applicable to the exceptions provided in Art. 38(1) and 45 (1)(b) which provide for non-suspensible innocent passage through the island and mainland in the former case (e.g. Corfu Channel) and between a part of the high seas or an EEZ and the territorial sea of a foreign State in the latter (e.g. straits of Tiran) and the right of normal innocent passage applicable to the exception provided in Art. 36 (e.g. waters between the United States and Cuba).

[41] UNCLOS Art. 38(2)

[42] UNCLOS Art. 39(2)(a)

[43] UNCLOS Art. 39(2)(b)

[44] UNCLOS Art. 39(1)

[45] UNCLOS Art. 40

[46] UNCLOS Art. 38(3)

[47] UNCLOS Art. 42(1)(b)

[48] UNCLOS Art. 42(2)

[49] UNCLOS Art. 42(3)

[50] UNCLOS Art. 233

[51] UNCLOS Art. 46 9 (b) defines an archipelago as a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such, and Art. 46 (a) defines an 'archipelagic State' as a State constituted wholly by one or more archipelagos and such State may include other islands.

[52] UNCLOS Art. 48

[53] UNCLOS Art. 47

[54] UNCLOS Art. 49

[55] UNCLOS Art. 50, and see Art.s 9, 10 and 11

[56] UNCLOS Art. 52

[57] UNCLOS Art. 53

[58] Originally 12 miles from the baselines under TSC Art. 24(2) but in most cases extended an additional 12 miles following the adoption of 12 mile territorial zones and following UNCLOS Art. 33(2) which allows a contiguous zone 24 miles from the baselines.

[59] Under Art. 24(1) of the TSC the coastal state may within the contiguous zone exercise the control necessary to (a) prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea and (b) punish infringement of the above regulations committed within its territory or territorial sea. The contiguous zone may be up to twelve miles from the baseline under TSC Art. 24(2) or up to the median line between the nearest points of the coasts of two adjacent or opposite States (TSC Art. 24(3)).

[60] Art. 33 provides that in a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to:

(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea and

(b) punish infringement of the above laws and regulations committed within its territory or territorial sea.

2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.

[61] Taiyo Maru 70 AJIL 138 (1976) and in (1974) 395 F. Supp 413 relating to a purported enforcement of fishing legislation to a Japanese vessel pursued from the United States contiguous zone to territorial waters.

[62] The United Kingdom has not claimed a contiguous zone, for instance. See Churchill and Lowe, op. cit., 105.

[63] For instance the Danish customs zone in the 1959 Customs Act in UN Leg. Ser. B/15, 220.

[64] Such as the Saudi security zone in the Royal decree of 1958, UN Leg. Ser. B/15, 114 which also exceeds twelve miles and the Syrian Decree of 28 December 1963, 68 Revue générale de droit international public 612 (1964). India (Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act 1976 s. 5 in UN Leg. Ser. B/19, 47, Pakistan (Territorial Waters and Maritime Zones Act 1976 s. 4 in UN Leg. Ser. B/19 85) and South Yemen (act no. 45, 19776, Arts. 11 and 12, in UN Leg. Ser. B/19, 21) have claimed security jurisdiction over the contiguous zone, as well as jurisdiction over other matters such as customs, fiscal and immigration infringements.

[65] UNCLOS Art. 58(2)

[66] UNCLOS Art. 59

[67] UNCOS Art. 57

[68] UNCLOS Art. 56 (1)(b)(iii)

[69] UNCLOS Art. 56(1)(c)

[70] UNCLOS Art. 56(2)

[71] UNCLOS Art. 58(1)

[72] UNCLOS Art. 58(2)

[73] UNCLOS Art. 58(3)

[74] UNCLOS Art. 192

[75] UNCLOS Art. 194(1)

[76] UNCLOS Art. 194(2)

[77] UNCLOS Art. 194(3)(b)

[78] UNCLOS Art. 194(4)

[79] UNCLOS Art. 211(1) provides that States, acting through the competent international organization or general diplomatic conference, shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels and promote the adoption, in the same manner, wherever appropriate, of routeing systems designed to minimize the threat of accidents which might cause pollution of the marine environment, including the coastline, and pollution damage to the related interests of coastal States. Such rules and standards shall, in the same manner, be re-examined from time to time as necessary.

[80] UNCLOS Art. 211(5)

[81] UNCLOS Art. 211(6)

[82] UNCLOS Art. 220 (3)

[83] UNCLOS Art. 220(4)

[84] UNCLOS Art. 220(6)

[85] UNCLOS Art. 220(7)

[86] UNCLOS Art. 221(1). "Maritime casualty" is defined as a collision of vessels, stranding or other incident of navigation or other occurrence on board a vessel or external to it resulting in material damage or imminent threat of material damage to a vessel or cargo: Art. 221(2)

[87] UNCLOS Art. 19, TSC Art. 14(4)

[88] Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, UNEP Doc T/BSL/000, signed at Basel 22 March 1989, entered into force 5 May 1992

[89] Basel Convention, Art. 4(2)

[90] Basel Convention, Art. 4(2)

[91] UNEP T/BSL/000, 19.

[92] Defined in Basel Convention Art. 2(12) as any State, other than the State of export or import, through which a movement of hazardous wastes or other wastes is planned or takes place.

[93] Basel Convention Art. 6(4)

[94] Basel Convention Art. 9(1)

[95] Basel Convention Art. 9(2) -(5)

[96] J. Cameron, and J. D. Werksman, "The Precautionary Principle: A Policy For Action In The Face Of Uncertainty", CIEL Background Papers on International Environmental Law, 1991, IV,7.

[97] See "Relevance and Application of the Principle of Precautionary Action to the Caribbean Environment Programme", CEP Technical Report No. 21, 1993, 3. See also LDC Resolution 14/44 of 4 September, 1991.

[98] E. Hey, "The Precautionary Approach: Implications of the revision of the Oslo and Paris Conventions", Marine Policy 1991, 245

[99] E. Hey, "The Precautionary Principle in Environmental Law and Policy: Institutionalizing Caution", in Georgetown International Environmental Law Review, 1992, 303-318.

[100] J. Cameron, and J. D. Werksman, "The Precautionary Principle", supra note 96.

[101] The terms used in International Conventions vary: 'may harm' (Baltic Sea Convention), 'may cause harm' (Bamako Convention), 'are likely to cause harm' (London Dumping Convention), 'where there is a threat' (Biodiversity Convention).

[102] CEP Technical Report No. 21, supra note 97, 2.

[103] The International Maritime Organization and the Implementation of the Precautionary Approach, Discussion paper prepared by the Netherlands (May 1994)

[104] Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London), 26 UST 2403, 11 ILM (1972) 1294, entered into force 30 August 1975, amended 1978, entered into force 11 March 1979, amended 1980, entered into force 11 March 1981.

[105] See generally P. W. Birnie and Alan E. Boyle, International Law and the Environment (1992), 98 and Johnston and MacGarvin, "0 - 2000 Assimilating Lessons from the Past", Third North Sea Conference, in: Greenpeace Paper 28, 1990, 14.

[106] A/CONF.151/26 (Vol. II) 13 August 1992 Report of the United Nations Conference on Environment and Development (Rio de Janeiro, 3-14 June 1992) Chapter 17 -Protection of the oceans, all kinds of seas, including enclosed and semi-enclosed seas, and coastal areas and the protection, rational use and development of their living resources, 17.21.

[107] Agenda 21, Chapter 17, 17.22.

[108] UNCLOS Article 56(1)(b)(iii)

[109] Transcript March 22 1994. See more complete transcript attached.

[110] Reuters wire story, March 21, 1995

[111] UNCLOS Article 234

[112] Art. 7 Act No. 25/64, 29 April 1964, UN Leg. Ser. B/16, 45.

[113] See R.R. Churchill, ed., I New Directions in the Law of the Sea, (1981), 654.

[114] UNCLOS Art. 22 reads as follows:

Art. 22 of UNCLOS empowers coastal States to regulate passage of various vessels, providing that

1. The coastal State may, where necessary having regard to safety of navigation, require foreign ships exercising the right of innocent passage through its territorial sea to use such sea lanes and traffic separation schemes as it may designate or prescribe for the regulation of the passage of ships.

2. In particular, tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances or materials may be required to confine their passage to such sea lanes.

3. In the designation of sea lanes and the prescription of traffic separation schemes under this Art., the coastal State may take into account:

(a) the recommendations of the competent international organization;

(b) any channels customarily used for international navigation;

(c) the special characteristics of particular ships and channels; and

(d) the density of traffic.

4. The coastal State shall clearly indicate such sea lanes and traffic separation schemes on charts to which due publicity shall be given.

Art. 23 imposes the obligation on vessels, stating that

Foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances shall, when exercising the right of innocent passage through the territorial sea, carry documents and observe special precautionary measures established for such ships by international agreements.

[115] TSC, Art. 16, UNCLOS Article 25(3)

[116] Prevention of non-innocent passage is possible under UNCLOS Art. 25.

[117] See TSC, Art. 14

[118] UNCLOS Art. 19

[119] See 9 ILM 543 for text of the bill which was later passed into force.

See 9 ILM 607, 610. The Canadian reply to a United States protest also further stated that "Such concepts are particularly relevant, however, to an area having the unique characteristics of the Arctic, wherethere is an intimate relationship between the sea, the ice and the land, and where the permanent defilement of the environment could occur and result in the destruction of whole species." It should be noted that this was over twenty years ago and subsequent to the Rio declaration and the entry into force of UNCLOS the rights and duties of coastal states to protect the environment have been further extended.

[120a]Code for the Safe Carriage of Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes in Flasks on Board Ships, IMO Resolution A 18/ Res. 748, Annex.

[120b]International Convention for the Safety of Life at Sea, 1974, amended during the 63rd session of the Maritime Safety Committee in 1994.

[120c]INF Code para 4.

[120d]See Table 1 of the INF Code in connection with the Code's para 3. Note that 2,000,000 TBq radioactive limit, however, is a quantity of radiactivity as much as twice as large as was released during the Chernobyl desaster. See Greenpeace, Transport of Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes by Sea. Prepared for the 18th Regular Session of the Assembly of the IMO, 1993, 3, referring to an IAEA report.

[120e]IMO Resolution A. 748 (18) adopted on 4 November 1993, 3 (a).

[120f]IMO Resolution A. 748 (18), 3 (b). Paragraph 17.22 of Agenda 21 speaks of the necessity of precautionary approaches in the marine. See the discussion of the Precautionary Principle in Chapter 3.3.3 of this paper.

[121] The Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, entered into force 27 January 1980, U.N. Doc. A/Conf. 39/27 (23 May 1969), 8 I.L.M. 679 1969.

[122] Vienna Convention, Art. 31(3)(b) Recourse to drafting history in this case appears to be excluded by Art. 32, and is thus useful only for assessing State practice and customary international law against which the UNCLOS was drafted.

[123] UPI Wire Story, February 22, 1995

[124] UPI Wire Story, February 22, 1995

[125] "The government has informed the countries involved of the unsuitability of this ship including Chilean territorial waters in its route," said a statement issued by the foreign ministry." Reuters Story, February 23, 1995

[126] AFP Story, February 23, 1995

[127] AFP Story, February 23, 1995

[128] Reuters story, February 25, 1995

[129] Reuters story, March 17, 1995

[130] Resolution 12600/67 of March 16th, by the Chilean Maritime Authority, General Directory for the Maritime Territory and Merchant Marine, DIRECTEMAR

[131] See supra, page 14.

[132] Greenpeace update on the Internet, http://www.greenpeace.org/nonuke/pintail.html, day 28 update.

[133] Greenpeace update on the Internet, http://www.greenpeace.org/nonuke/pintail.html, day 28 update.

[134] Reuters wire story, March 22, 1995

[135] Reuters wire story, March 22, 1995

[136] Reuters wire story, March 22, 1995

[137] UNCLOS Article 192 and see discussion in text accompanying note 74 on page 8.

[138] UNCLOS Article 56(1)(iii) and see discussion intext accompanying note 68 on page 8.

[139] See discussion in text accompanying note 115 on page 15.

[140] See discussion in text accompanying note 96 on page 12.

[141] See UNCLOS Article 211 and see discussion in text accompanying note 79 on page 9.

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