The authority of en route coastal states to alter the itinerary of transboundary shipments of spent nuclear fuel

Abstract

This thesis starts with noting that the rapid globalisation of the late twentieth and the twenty-first century has resulted in a shift from a national to an international level concerning certain issues. Local governments find themselves unable to control the risk of radioactive pollution that vessels traversing their coastline pose. The purpose of this thesis is to examine to which extent a coastal state can influence an en route transport of spent nuclear fuel. It examines four possible degrees of control; an unconditional ban, prior informed consent, prior information and no information. Secondly, it also examines how the en route state influence varies in the territorial waters, the EEZ and adjacent high seas.

After assessing nuclear law, maritime law and environmental law first on a principal level, secondly by looking into the actual legislation and case law; this thesis finds that the question currently is uncertain. It is however clear that the coastal states does not have any influence in adjacent high seas. The territorial waters are under coastal states sovereign jurisdiction and thus, rights to influence are largest in these areas. The EEZ is a zone sui generis, a mixture between the regulation on the high seas and in the territorial waters, but leaves some room for coastal state jurisdiction on environmental issues.

The principles of cooperation, sovereignty, prevention and precaution all provide good arguments for that coastal states shall be entitled to receive prior notice or give a prior informed consent to a scheduled shipment. Recent EC law and the law of Chile and a few other countries also prescribe a procedure of prior information and consent. However, the main conflict is that with the principles of free navigation and innocent passage that limits the coastal states sovereignty in its territorial waters and the EEZ.

The main conclusion of this thesis is that although the rights of coastal states to control en route shipments of spent nuclear fuel does not gain full support by the current patchwork of controlling legislation, there are several indications that this is about to change. The 2006 changes of EC legislation is one important move towards a duty of prior informed consent. Another is the non sequitur evident in that prior informed consent to en route states is mandatory when it comes to the transportation of other hazardous wastes, regulated in the Basel Convention.