Four months after the Pacific Pintail arrived in Japan, the government-owned company Japan Nuclear Fuel Ltd. acknowledged that a small amount of cesium-137 had been detected on the surface of one of the 28 transported canisters of vitrified radioactive waste.32 This announcement reinforces the view that the packaging procedures may not have been properly evaluated and gives credence to the perspective that no further shipments should occur until a thorough and independent environmental assessment has been completed.33

The Duty to Conduct Research. Everyone agrees that research efforts to overcome uncertainties are essential.34 Commentators disagree on what type of research is required, with environmentalists emphasizing that the research should focus on developing nonpolluting alternative technologies rather than on measuring the assimilative capacity of the oceans.35

The Duty to Notify. The duty to notify other countries of risks in order to enable them to prepare contingency plans to deal with accidents and emergencies "is almost a fundamental principle of the international law of the environment, which is quite distinct from the duty of 'prompt notification' in case of emergency."36 This duty is explicitly recognized and given content by OECD documents37 and in the Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal.38

The Duty to Consult. This duty is now universally recognized as a requirement when one nation plans an activity that creates risks for other nations.39 The OECD explained these obligations in some detail in two documents that were issued in 1978, in response to the Sandoz and Chernobyl accidents.40 The 1982 United Nations Law of the Sea Convention gives this duty particular teeth by requiring--in cases where nations can anticipate the possibility of marine pollution--that they "jointly develop and promote contingency plans for responding to pollution incidents in the marine environment."41

The Duty to Develop Alternative Techniques. The precautionary principle requires decisionmakers to move away from polluting activities even if the scientific data remain cloudy regarding the specific damage imposed upon the environment. The contracting parties to the Oslo Convention and the London Dumping Convention, for instance, both agreed to phase out ocean incineration of wastes--even though the specific harm to the marine environment had not been established--because alternative technologies such as recycling and land-based treatments were available.42 One commentator has summarized this requirement as follows:

The precautionary concept does not insist that all risk of harm be avoided at all cost. Rather, it requires that society be willing to accept higher costs now in order to avoid the possibility of environmental degradation in the future.43

The Duty to Mitigate All Reasonably Foreseeable Damage. This obligation follows directly from the precautionary principle and from the core notions developed at Stockholm in 1972 and Rio de Janeiro in 1992. The shipping nation must act systematically to reduce all foreseeable damages. This responsibility requires it to explore all alternative nonpolluting technologies, alternatives to nuclear power, alternatives to using plutonium in commercial nuclear plants, and--in particular--alternatives to reprocessing spent nuclear fuel. Better encasements for the transported radioactive materials must also be developed and used.

In the context of sea shipments of ultrahazardous cargoes, the important question is whether this duty to mitigate is inconsistent with the freedom of navigation, which is a cornerstone of the modern law of the sea. The apparent conflict can be resolved by understanding that the freedom of navigation is not an absolute freedom and is subject to qualifications in all international agreements.

Traditional Navigational Freedoms Do Not Apply to Ultrahazardous Cargoes. The 1982 Law of the Sea Convention guarantees freedom of navigation through the high seas,44 exclusive economic zones,45 straits used for international navigation,46 and archipelagic sea lanes,47 and it permits the exercise of "innocent passage" through territorial seas48 and archipelagic waters.49 But it also imposes an obligation on all states to protect and preserve the marine environment,50 and to take measures to prevent pollution from vessels by "preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges, and regulating the design, construction, equipment, operation and manning of vessels."51 The Convention recognizes specific powers of coastal nations to regulate "ships carrying nuclear or other inherently dangerous or noxious substances or materials"52 and ships transiting through ice-covered areas.53 It recognizes a duty to notify other affected nations immediately in cases where "the marine environment is in imminent danger of being damaged or has been damaged by pollution."54 The balance between these conflicting rights and duties has been given greater precision in more recent agreements.

End Notes

31. Lyman, Dec. 12, 1994, supra note 28. Dr. Lyman also questioned the use of elastomer for the O-ring seals, which "are the most vulnerable sites on the cask." Id. at x-xi. Elastomer seals are prone to failure at temperatures above 230 degrees Centigrade and can be damaged by high radiation fields. Back to document

32. Cesium Contamination on HLW Canister Fuels Debate in Japan, Nucleonics Week, Aug. 24, 1995. The cesium could have contaminated the canister at the vitrification plant at La Hague, France, or could possibly have emerged "from 'sweating' of the canister during transport, meaning that one or more pinholes in it provided a channel for cesium inside to leak out." Id. The Japanese have rejected the latter possibility, arguing that ruthenium would also have been detected if any leaks had occurred. Id. Back to document

33. Letter from Paul Leventhal, President, Nuclear Control Institute, to Kiyoshi Nozawa, President, Japan Nuclear Fuel Ltd., Aug. 30, 1995. Back to document

34. OECD Secretariat, supra note 14; Hey, supra note 13, at 311. Back to document

35. Hey, supra note 13, at 311.Back to document

36. Laura Pineschi, The Transit of Ships Carrying Hazardous Wastes through Foreign Coastal Zones, in International Responsibility for Environmental Harm 299, 314 (F. Francioni and Tullio Scovazzi eds. 1991)(citing sources in support in her note 55). This duty (and the duty to consult) can also be seen as deriving from Stockholm Principle 21 (1972)(requiring countries to avoid causing transfrontier pollution to other countries and to areas beyond national jurisdiction). See Hohmann, supra note 11, at 197. Back to document

37. This duty was recognized as early as 1974 in the OECD Principles Concerning Transfrontier Pollution, Rec. C(74)224 of 14 November 1974, discussed in Hohmann, supra note 11, at 148-49. Back to document

38. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, art. 4(2)(f), UNEP Doc. T/BSL/OOO, March 22, 1989, reprinted in 28 I.L.M. 652 (1989) [hereafter cited as Basel Convention]. Back to document

39. See Van Dyke, Japanese Plutonium, supra note 2, at 400-02. Back to document

40. Rec. C(88)84 of 8 July 1988, 28 I.L.M. 247 (1989), requires countries to exchange information on planned hazardous installations that could cause transfrontier damage in the event of an accident. Rec. C(88)85 of 8 July 1988, 28 I.L.M. 277 (1989), entitled "Provision of Information to the Public and Public Participation in Decision-Making Processes Related to the Prevention of, and Response to, Accidents Involving Hazardous Substances," assumes that persons potentially affected by transfrontier accidents have a right to know of the risks they are being subjected to, and to participate in the development of emergency measures to be taken in the event of such an accident. Nuclear installations are, however, excluded from these specific requirements. See generally Hohmann, supra note 11, at 149-50. Back to document

United Nations Convention on the Law of the Sea, art. 199, second sentence, Dec. 10, 1982, U.N.Doc. A/CONF.62/122 (1982), 21 I.L.M. 1261 (1982) [hereafter cited as Law of the Sea Convention]. Back to document

42. Hey, supra note 13, at 309 n.25. Back to document

43. Id. at 310. Back to document

44. Law of the Sea Convention, supra note 41, art. 87. Back to document

45. Id., art. 58(1). Back to document

46. Id., arts. 34-44.Back to document

47. Id., art. 53.Back to document

48. Id. arts. 17-19. Back to document

49. Id., art. 52. Back to document

50. Id., art 192. Back to document

51. Id., art 194(3)(b).Back to document

52. Id., art. 22(2); see also art. 23.Back to document

53. Id., art. 234. Back to document

54. Id. art. 198. One commentator has observed that "[t]his rule might be applicable even when a State becomes aware that a ship flying its flag and carrying harmful wastes is not complying with the safety regulations prescribed by Article 194. Pineschi, supra note 36, at 306. Back to document