RISKS AND REGULATIONS IN THE TRANSPORT OF NUCLEAR MATERIAL BY SEA

The technical regulations for the safe carriage of nuclear material by sea, having been developed over a number of years, are comprehensive and well thought out. The chief regulations in relation to shipping include the International Maritime Dangerous Goods Code (IMDG Code) and the “INF Code”, which has become the mandatory International Code for the Safe Carriage of Packaged Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Waste on Board Ships. But such technical codes do not deal with serious practical issues that have arisen recently and which must be addressed if the carriage by sea of such material is to increase in line with the international demand for enriched material and reprocessing. The proliferation of piracy, terrorism and obstructive protest in the first years of the 21st century and the apparent inability to effectively combat these on the high seas gives rise to serious questions as to whether the international law of the sea is ready for this challenge. Defence of ships in ports and harbours was, after the New York 9/11 attacks, addressed in the International Ship and Port Security Code (ISPS Code) but only limited measures were taken to deal with perceived threat of attack on the high seas. These include the use of Global Maritime Distress Safety Systems (GMDSS), Automatic Identification Systems (AIS) and bilateral international agreements permitting warships of one nation (usually the US) rights to stop and search ships flying certain foreign flags. In effect, the steps put in place were not so much to defend the ship from attack but were designed to give authorities notice that a ship had been attacked and hijacked so it could not be used as a terrorist weapon delivery system. The vulnerability of ships on the high seas and in roadsteads, particularly to piracy and terrorism, has been demonstrated by such incidents as the Limburg and USS Cole attacks and by the success of Somali piracy which has become a lucrative business model. The international community has struggled to deal effectively with such attacks both legally and practically despite the deployment of extensive naval forces. The increasing boldness and effectiveness of pirates and terrorists and even peaceful protestors on the high seas outside the jurisdiction of any state raise difficult questions of self defence and reasonable force in the already dangerous environment of the sea. There are other issues related to the international law of the sea which must be considered if the carriage of nuclear material is to safely increase: the rights of nuclear ships to innocent passage through sea lanes within territorial seas; the right to a safe haven or port of refuge where a vessel suffers a breakdown or is overwhelmed by the elements; and where, despite all technical and practical measures, a ship becomes a casualty, how the question of salvage would be dealt with and the liability issues that may arise. This paper considers whether the law as it stands is sufficient or whether perhaps, a new convention dealing with nuclear transport by sea is necessary and practicable.