Chapter-3 /

The London Dumping Convention: A Global Regime on Dumping

CHAPTER-3

The London Dumping Convention: A Global Regime on Dumping

3.1. Introduction

The Preparatory Committee of the United Nations Conference

on Human Environment (UNHCE) which met in 1971, established

an Intergovernmental Working Group on Marine Pollution

(IWGMP).l

This working group at its first session, held in London, had

suggested drafting of an international agreement or convention

regulating dumping of wastes at sea. Further, there was consensus /

that although ocean dumping was not the principal source of

marine pollution, it was a significant one. It was observed that

States participating in a first international or genuine conference

had differing views on the regulation of dumping proposed by the

United States draft.

The US draft proposed a two pronged approach to curb

dumping. On one hand, it was felt that the best method would be

enactment of national laws on the subject. Such a law would follow

the criteria laid down in the Convention for prohibiting dumping of

wastes and also provide for mechanism to grant permits for

At this Conference the United States tabled a draft convention titled "The Regulation of Transportation for Ocean Dumping", International Legal Materials (ILM), vol. 10 (1970), p. 1021. Also see generally a background paper prepared by Lawson A. W. Hunter, •The Question of an Ocean Dumping Convention: Conclusions of the Working Group on an Ocean Dumping Convention", American Society of International Law (Studies in Transnational Legal Policy), no.2 (1972), pp.7-34.

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dumping of listed substances. Moreover, States would also decide

the substances that were to be dumped and shall submit records

and location of dumped substances.

On the other hand, it was felt that a national or domestic

control would provide sufficient scope for abuse, was hence

resented by many countries. This led the Canadian delegation to

remark that the US draft was nothing but a license to pollute.2 It

was, however, decided that States would send in their comments

before the next meeting of the IWGMP to be held in Ottawa in 1971.

In the intervening period, a significant development took

place which had a positve bearing on the proposed US draft. The /

Northeast Atlantic States who themselves were victims of the

problem of ocean dumping came together and adopted the Oslo

Convention on Prevention of Dumping of Wastes and other Matter

from Ships and Aircraft, 1972.3

Unlike the US draft, the Oslo Convention had two novel

inclusions. One, it provided for a listing system for regulating

dumping- wherein you had a 'black list' and 'grey list'. The black

list covered substances which were prohibited from dumping and

the grey list covered those material which could be dumped only

upon the issuance of a special permit by the national authority.

Second, each party undertook to ensure the compliance of not only

2

3

U.N. Doc.AjConf.48/IWGMP.1/5, Report of the First Session of the IWGMP, London, June, 1971. ILM~ vol. 11 (1972), pp.262-266.

117

vessels loading materials in its territory, for the purpose. of

dumping, but also of ships and aircraft registered in its territory.

The second meeting of the IWGMP convened in Ottawa m

1971,4 was clearly influenced by the Oslo Convention. The black

and grey listing system found a place in the draft convention.

Bearing in mind the need to have a combined, holistic and

universal attack on dumping, the need for regional arrangements,

supplementing the global regime was also highlighted. /

Also included were a number of suggestions made by the

delegations of Spain, Sweden and Australia.s Despite, the steady

progress made, it was found that many issues of the draft . /

convention remained untouched. One of the important issue was

the establishment of an institutional mechanism for the

convention. By November 1971, although many had hoped that the

convention would be ready before the 1972 United Nations

Conference on Human Environment (UNHCE), it however, not to

be.

Furthermore, with a VIew to finalize the draft text of the

proposed convention, the ·Government of Iceland, (co-sponsored by

the United States and Sweden as the host of the UNHCE), invited

members of the IWGMP to a meeing on ocean dumping, m

Reykjavik on 10 April 1972. The meeting was attended by 29

States that included nearly all the dumper States, in addition to a

4

5

U.N.Doc.AjConf.48jiWGMP.ll/5, Report of the Second Session of the 1\VGMP, Ottawa, November 1971. Ibid., p.S.

118

number of developing States like Algeria, Argentina, Ghana, India,

Islarrtlc Republic of Iran, Ivory Coast, Kenya, Mexico, Nigeria,

Singapore and Tunisia. 6 The Reykjavik meeting considered

important issues, chief among them being the institutional set-up

of the draft convention.

Even as the developed States agreed upon the substantive

elements of the draft convention, they were worried that the

developing countries may want to peg the proposed Convention to

the negotiations on the Law of the S~a Conference, held in 1973.

Some States also felt that the UN Committee on the Peaceful Uses

of the Seabed could be used as a forum for negotiating the draft /

Convention. In such a scenario the Reykjavik Meeting adopted a

resolution requesting the IWGMP to submit a draft text along with

the report of the Meeting. 7

The developing countries because of their majority in the

UNHCE and the Law of the Sea negotiations were able to ensure

the momentum gained was continued and did not allow the draft

Convention to be derailed. The United Kingdom took the lead to

convene another conference, in London, from 30-31 May 1972.

This meeting was instrumental in modifying the provisions relating

to exemption of certain government owned vessels from the scope

of the proposed Convention. The meeting also finalized the list of

7

UN Doc. IMOD jiNF /2/Rev.2, Report of the Intergovernmental Meeting on Ocean Dumping, Reykjavik, April 1972. Resolution IMOD/3.

119

substances that needed to be absolutely prohibited because of their

toxicity and capacity of bioaccumalation.

It is against this backdrop that this Chapter shall attempt to

look into:

• the evolution of dumping as a concept; • work of the Intergovernmental Panel on Radioactive Waste

Diposal (IPGRAD); • the legal, socio-economic and political issues considered

by IPGRAD; • the 1996 Protocol to the London Convention and

principles of de minimis.

3.2. Evolution of the London Dumping Convention

The draft text of the Convention was considered at the

UNCHE with the recommendation that Governments should ensure /

that:

... ocean dumping by their nationals anywhere, or by any person in areas under their jurisdiction is controlled and the governments continue to work towards the completion of, and bringing into force as soon as possible of, an over all instrument for the control of ocean dumping, as well as needed regional agreements within the framework of this instrument, in particular for enclosed and semi-enclosed areas, which are more at risk from pollution.

Pursuant to this recommendation the Government of United

Kingdom, in consultation with the Secertary-General of the United

Nations, convened an Inter-governmental Conference on the

Convention on the Dumping of Wastes at Sea, from 30 October to

13 November 1972. The Conference adopted the Convention on

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the Prevention of Marine Pollution by Dumping of Wastes and

Other Matter, 1972 (hereinafter 'London Convention1.s

The Conference was attended by over eighty two States and

twelve Observer States. The London Convention, was open for

signature from 29 December 1972 and it entered into force on 30

August 1975.9 The basic purpose of the London Convention is to

encourage states to co-operate towards protecting the marine

environment. Article I states:

Contracting Parties shall individually and collectively promote the effective control of all sources of pollution of the marine environment ... shall take all practicable steps to prevent the pollution of the sea by dumping of waste and other matter that is liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.

Article1 read with Article 2, shows an influence of the v1ews of

developing countries during the drafting of this exhaustive

definition. Article 2 provides:

8

9

The Convention was signed by Belgium, Denmark Finland, France, Federal Republic of Germany, Iceland, Netherlands, Norway, Spain, Sweden and The United Kingdom. Entered into force on 15 February 1972, U.N.Doc. A/Conf.48/IWGMP. 11/WP. VI; and also see ILM vol. 11 (1972), pp. 1294-1312. For survey of literature on the London Convention see Terry L. Leitzell, "The Ocean Dumping Convention- A Hopeful Beginning", San Diego Law Review, vol.lO (1972/73), pp. 502-513; Michael S. Schenker, "Saving a Dying Sea? The London Dumping Convention on Ocean Dumping", Cornell International Law Journal, vol. 7 (1973), pp.32-48; R.N. Duncan, " 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes at Sea", Journal of Maritime Law and Commerce, vol. 4 (1974), pp.299-315; M. J Forster, "In the Ranks of Tuscany: London Dumping Convention", Environmental Policy and Law, vol. 16 (1986), pp.7-11; H. Welsch, "The London Dumping Convention and Sub seabed Disposal of Radioactive Waste", German Yearbook of International Law, vol. 28 (1985), pp. 322-354; Brennan Van Dyke, "The London Convention, 1972", in UNEP, ed., Environment and Trade (Nairobi, 1972), pp. 253-296; and Ursula Wasserman, "Convention on the Dumping of Wastes at Sea Wastes", Ocean Yearbook (Chicago), vol.1 (1977}, pp.340-349.

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Contracting Party shall, as provided for in the following articles, take effective measures individually, according to their scientific, technical and economic capabilities and collectively to prevent marine pollution caused by dumping and shall harmonize their policies in this regard.

The phrase 'all practicable steps' (measures would have been more

appropriate) and 'according to scientific, technical and economic

capabilities' in Article 2, may at first sight seem to be provisions

weakening the LDC.

But, it needs to be borne in mind, that the London

Convention, during its formative stages was exclusively a rich

man's dumpers club. Commonsense would suggest that these

/

developed countries who were the main dumpers were also highly

industrialized and maritime powers. It was for these reasons that a

number of developing and small island countries showed

reluctance to join the London Convention.

The London Convention calls upon Contracting Parties (not

binding upon non-parties) to individually and jointly control

pollution of marine environment. The need for a "pledge" to take

"all practicable steps", denotes the need for more sincere

commitments on the part of States, depending upon their

capacities. The London Convention, as was seen earlier, provides

sufficient leeway to take into account the technological capacities

of the developing countries.

The exact words in the definition, call for "effective control of

all sources". This, it is submitted, is a tall order even for a joint

122

action which may enjoin all measures and also the terms of scope

of its application which would include the territorial sea and the

high seas. Further, the definition of 'sea' in Article III (3), includes

"All marine waters other than internal waters of States". This gives

the London Convention a truly global image and application,

which in effect would mean that it applies to all "sea areas beyond

the baselines defining the outer limits of internal waters of states".

In this regard, it may be noted that the Eleventh Consultative

Meeting of the London Convention, the highest policy making body,

decided and concluded that "a party could apply the Convention to

dumping not only in its territorial waters, but also in the exclusive /

economic zone (EEZ) and on to its continental shelf'.

The activities to be controlled which may cause "hazards to

human health, harm living resources and marine life, damage

amenities or interfere with other legitimate uses of the sea", are all

taken from the GESAMP definition of marine pollution, as well as

the definition adopted by the 1958 Geneva Convention on the Law

of the Sea.

Disposal of radioactive wastes or dumping, is but, one of the

forms of pollution from the whole gamut called marine pollution.

Whereas "radioactive wastes', is just one of these pollutants,

specially being considered under the present study. It may also be

added, here, that radioactive waste pollution by dumping is, but, a

small fraction of the global marine pollution caused from land-

123

based activities, which unfortunately is only governed by the

Montreal Guidelines and not by binding treaty regime. to

However, it remains the most dangerous, as toxic effects

caused by the radioactive wastes remains and takes centuries to be

evident. It is very important for a student of environmental law to

view marine pollution as a single unit in its totality as the marine

environment is inclusive of oceans, seas, archipelagoes, internal

waters and even estuaries.

A major share of the pollution comes from land-based

sources; other inputs are vessel source pollution; atmospheric

pollution; and pollution caused by activities on seabed which may /

become a reality, once deep seabed mining is undertaken on a

commercial basis by the pioneer investors who have signed

exploration contracts with the Secretary General of the

International Seabed Authority (ISBA).ll

Nearly eighty percent of all marine pollution comes from

land-based sources. This includes point and non-point sources

coming from territorial origin, including pollution from rivers,

estuaries as well as atmospheric pollution for which there is no

IO See generally Meng Qing-Nan, Land-based Marine Pollution: International Development (London: 1987).

11 The Regulations Governing Exploration and Exploitation of Polymetallic Nodules of the Sea Bed were adopted in June 2001. Once mining or exploitation contracts are accepted by ISBA and actual mining begins in 2007 on a commercial basis, it is sure to disturb the seabed gradient and would significantly contribute to the pollution of the marine environment.

124

established global legal regime as yet. 12 Besides, accidental or

deliberate discharges into the sea comprising mainly of oil or oil

derivatives account for nearly ten percent. And the rest ten percent

can be taken to be from dumping of wastes from ships, platforms

as well as aircraft.

Dumping, as stated earlier, is a deliberate act of pollution as

oceans remain by and large an easy and unregulated zone for

disposal of wastes. For these reasons it is important to know what

constitutes dumping under the London Convention.

3.2.1. What is Dumping?

At this instance, it is necessary to first understand what is /

meant by the term "dumping"I3 under the Convention.

Under the London Convention, dumping is defined 14 as follows:

(a) "Dumping" would include: (i) any deliberate disposal at sea of wastes or

other matter from vessels, aircraft, platforms or other man-made structures at

(ii) sea; any deliberate disposal aircraft, platforms or structures at sea; ·

at sea of vessels, other man-made

12 The Montreal Guidelines on Land-based Sources of Marine Pollution, 1985 serve as the only global rules but the Mediterranean and other regional seas areas have adopted regional conventions.

13 Jack, W Hodges, "International Law and Radioactive Pollution by Ocean Dumping ... With all their Genius and with All Their Skill", San Diego Law Review, vol.ll (1974), pp.757-775. Joseph, A. Lumsdaine, "Ocean Dumping Regulation: An Overview", Ecology Law Quarterly, vol. 7 ( 1976), pp. 753-792. V.S. Mani, "Ocean Dumping of Radioactive Wastes-Law and Politics," Indian Journal of International Law, vol.24, no.2 (1984), pp.224-244; J.M. Brewers and C.J.R Garrett, "Analysis of the Issues Related to Sea Dumping of Radioactive Wastes," Marine Policy, vol. ll (1987}, pp.105-24. George C. Kasoulides, "Legal Nature of Dumping Activities," Marine Policy, vol. 28, no.10 (1989), pp.488-89; D.P. Calmet, and Bewers, J.M., "Radioactive Wastes and Ocean Dumping: The Role of the L'\EA", Marine Policy, vol. 15 (1991), pp.413-430.

14 Article 3 (1) of the London Dumping Convention defines "dumping."

125

(b) "Dumping" does not include: (i) the disposal at sea of wastes or other

matter incidental to, or derived from the normal operations of vessels, aircraft, platforms or other man-made structures at sea and their equipment, other than wastes or other matter transported by or to vessels, aircraft, platforms or other man-made structures at sea, operating for the purpose of disposal of such matter or derived from the treatment of such wastes or other matter on such vessels, aircraft, platforms or structures;

(ii) placement of matter for a purpose other than the mere disposal thereof, provided that such placement is not contrary to the aims of this Convention.

The definition of dumping in the London Convention can be divided

into two parts. The first part positively states that dumping

includes what can be deliberately disposed .--at sea. This includes

wastes or other matter from vessels, aircraft or other man made

structure at sea or (vessels, aircraft or other manmade structures

themselves as dumped substances).

The second part worded negatively, provides for 'acts which

do not constitute dumping'. These include - the disposal at sea of

wastes or other matter derived from the normal operation of

vessels, aircraft, platforms or other man made structures. Such a

classification is understandable as most acts of "incidental

pollution" have established international pollution regimes

governing them.

Dumping also does not include placement of matter for a

purpose other than disposal, for example, scientific research and

the disposal of wastes or other matter derived from sea-bed

126

activities, while exploring mineral resources and also pollution

casued by operational discharges from ships.

Moreover, as regards the use of the sea-bed for emplacement

of high-level radioactive wastes (HLW), the Seventh Consultative

Meeting convened a special meeting of Legal Experts to study the

issue.1s After continued discussion at .the Eighth and Ninth

Consultative Meetings, the Tenth Consultative Meeting agreed that

such emplacement should not be undertaken, unless and until the

disposal in the sea-bed is proven to be technically feasible and

environmentally safe.16

This controversy has its roots in domestic laws of States, /

which do not allow placing of HLWs on land because of the

opposition from the public towards undertaking such hazardous

activities in their neighbourhood.

3.2.2. General Constraints on Dumping

Article II of the London Convention lays down the basic rules,

containing the proscription for dumping of any "wastes or other

matter whatever form or condition, except as otherwise specified".

It sets out a listing system wherein: (i) the "black list" expresses a

15

16

IMO Doc. LDC 7 j7, 23 September 1982, Seventh Consultative Meeting of the Contracting Parties to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (14-18 February 1982), Consideration of Proposed Amendments to the Annexes to the Convention: Draft resolution (Kiribati and Nauru). IMO Doc. LDC 9/4/3, 28 June 1985, Ninth Consultative Meeting of the Contracting Parties to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (23-27 September 1985), Response to IMO.LDC 8/5 (Critical studies and comments to the report "Evaluation of Oceanic Radioactive Dumping Programmes" LDC 7 /INF.2 (submitted by France, Nauru and others).

127

complete prohibition of dumping of substances listed in Anexure-I;

{ii) the "grey list" provides for dumping of substances listed in

Annexure-11, if a special permit has been granted; and (iii) a

"general permit" granted, will allow for dumping of all their

substances falling under the white list.

The Convention provides criteria for issuance of special and

general permitsl7 by appropriate authorities, after they have

fulfilled the detailed requirements listed in Annex-III of the London

Convention.

Annex-I, the black list contains 'hazardous' substances.

These include organic compounds, mercury and mercury /

compounds, cadmium plastics and high -leyel radioactives

substances. These substances are prohibited from dumping on

grounds of public health, biological or any other grounds, by the

competent international body in this field, the International Atomic

Energy Agency (IAEA).

The 'grey list' in Annex-11 contains the second category of

substances requiring special care. These include "wastes

containing lead etc., ... and radioactive wastes or other radioactive

matter not included in Annex-I". Similarly, the London Convention

makes it mandatory that while granting permits for dumping of

this matter, the Contracting Parties should take into full account

the recommendations of the IAEA.

17 Such criteria would include quantity, form, toxicity and bio-accumulative capacity and persistence of the dumped substances provided in the Annexes to the London Convention.

128

It is important to note that unlike Annex-I, which uses the

word 'High Level Radioactive Wastes' or (HLW's), Annex-II does not

refer to Low-Level Radioactive Wastes (LLW's). 18

An "exclusion wording" on radioactive wastes not included in

Annex-I, would raise a question about intermediate radioactive

wastes? Are they low level wastes and if so, how low is low? Do

they include those which ensures safety of human life only, totally

disregarding the life of all other biota and other lower animals?.I9

Lastly, Annex-III or the so-called "white list" permits

dumping of all substances not mentioned in Annex-I and Annex-II

of the Convention. For dumping a "prior general permit" is needed, /

as Annex-III does not provide for prohibited substances. Instead,

we have a list of factors which have to be considered before

undertaking dumping.

These include: (i) decision whether an application for sea-

disposal should be pursued in the light of availability of land-based

disposal or treatment methods; (ii) the selection of a sea-disposal

site based on the choice and available scientific data to assess the

potential hazards to human health, harm to living resources and

marine life, damage to amenities and interference with the other

18

J<J

Annex I of the London Convention bans HLWs from being dumped at sea and the best option of disposal is land-based storage. From this it can largely construed that only LLWs are capable of being disposed in the ocean according to the Convention. A lack of reference to this form of radioactive waste is sure to create a wrong interpretation as to the toxicity and hazardous nature of the dumped substance. As will be seen later that States have questioned how low is low? And what is the basis on which this threshold has been arrived at by the International Commission on Radiological Protection (ICRP).

129

legitimate uses of the sea; (iii) choice of appropriate methods of

disposal and; (iv) developing an appropriate monitoring

programme. 2o

One may however ask how do we really judge that low level

wastes can be dumped because they are found only in trace

contaminants? When a trace radioactive substance is mixed with

other hazardous substance, it may become hazardous or it may

continue to retain its qualities of radiaoctivity.

Moreover, the implementation of the Convention is left to the

Contracting Parties wherein they forbid dumping of certain

hazardous substances. The Parties must designate one or several /

authorities competent to issue the required permits in respect of

the matter intended to be dumped and loaded in its territory, as

well as that loaded by a vessel or aircraft registered in its territory

or flying its flag, if the loading occurs in the territory of a State not

Party to the Convention.21

As regards the enforcement of the Convention, each Party is

obliged to ensure that the measures required are applied by vessels

and aircraft registered in its territory or flying its flag, besides those

which are found under its jurisdiction, especially those found in its

territorial waters and load matter that is to be dumped. 22

Such a graduated, albeit regulated dumping, provides for a

legal sanction for pollution of the seas and oceans. Dumping being

2o Annex III of the Convention. 21 Article 6 of the Convention. 22 Article 7 of the Convention.

130

a deliberate polluting act, some feel that it should be more

stringently regulated, although non-parties are not bound by the

provisions of the Convention. However, these Parties, it can be

argued are bound by rules of customary law governing

transboundary harm includes protection of the marine

environment too. Nevertheless, it cannot be denied that protection

of oceans and the seas has been primarily viewed as a reasonable

regard of the uses of the seas, much before any legal regulation

was ever thought of.

For a proper understanding of the Convention, it would be

worthwhile to look at the various definitional interpretations /

provided to the terms used in the Convention, ~uch as "rapidly

rendered harmless" and "trace contaminants", found in paragraph

8 and 9 of Annex-1.

A question that would naturally arise IS whether such

classification is really possible? Can substances which are

scientifically known to be "rapidly rendered harmless" by

undergoing physical, chemical and biological processes not effect

the marine organisims or endanger human health? If not such a

reasoning would seem to be a thorough anthropocentric defence of

dumping, really difficult to be understood by the lay mind. A

substance before being rendered harmless does produce genetic

changes in itself and its surroundings. Radioactive substances,

though known to break down after a long period of time, in some

cases may break into smaller elements at a faster rate.

131

Is physical degradation or palatability or the edible nature of

marine life, the only criteria that decides environmental harm?

Indeed, lower animals jurisprudentially speaking have lesser rights.

Even scientifically speaking, one finds it difficult to understand

precisely the state, nature and behavioural patterns of the ocean

bed. It may be recalled that some Contracting State Parties of the

London Convention, who were not happy with this definition asked

for a scientific study of the term 'rapidly rendered harmless'.23 For

this purpose, they requested the Group of Experts on the Scientific

Aspects of Marine Pollution (GESAMP) to undertake a study. It

expressed the view "that no substance is completely harmless and /

that harmlessness can only refer to the likelihood that a substance

will not cause harm under a particular set of conditions".

Similarly, as regards 'trace contaminants', the exception m

Annex-1 which excludes certain substances from dumping, IS

negatively worded. A substance shall not be treated as a "trace

contaminant" if : (i) it is present in otherwise acceptable ways or

other materials to which it has been added for the purpose of

dumping; (ii) it is occuring in such amounts that is likely to cause

undesirable effects, namely the possibility of chronic or acute toxic

effects on marine organisms or human health, whether or not

23 IMO Doc.LDC/ 13/INF.8, 6 August 1990, Thirteenth Consultative Meeting of the Contracting Parties to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (29 October-2 November 1990), establishing the IMO/ FAO/ UNESCO/ WMO/ WHO/ IAEA/UNJUNEP Joint Group of Experts on the Scientific Aspects of Marine Pollution (GESAMP): Protecting and Managing the Oceans (note by the London Secretariat).

132

arising from the bio-accumulation in marine organisms and

especially in food species; and (iii) it can be further reduced i.e., if

its concentration can be reduced by use of technical means.

The Consultative Meeting of Contracting Parties considering

this definition of "trace contaminants and rapidly rendered

harmless", as one package and agreed to base the interpretations

of these terms on the basis of the results undertaken to determine

the impact which the substances may have under certain

circumstances on the inarine environment. In pursuance of this

decision, the Third Consultative Meeting held in 1978 adopted the

interim guidelines for implementation of paragraphs 8 and 9 of /

Annex-! of the LDC.24

Furthermore, these guidelines were amended at the Fourth

and the Tenth Consultative Committee Meetings,2s wherein rapidly

rendered harmless substances would require:

:.!4

25

tests of the wastes or other matter proposed for dumping, including tests on the persistence of the material, showing that the substances can be dumped so as to not to cause acute or chronic effects or bio­accumulations in sensitive marine organisms typical of the marine eco-system at the disposal site.

See generally IMO, The London Convention: Twenty Years (London, IMO), p.70. ibid., p.71.

133

3.3. Work of the Inter-Governmental Panel on Radioactive Waste Disposal (IGPRAD)26

As has been observed in the earlier Chapters, the process of

dumping of high-level and low-level radioactive wastes had

commenced in the early forties. Concerted public opinion

influenced by a few states saw the Geneva Convention on the High

Seas, 1958, devote a section on the prohibition of radioactive

dumping. Article 25(1) of the Convention stated:

"Every State shall take measures to prevent the pollution of the sea from radioactive wastes, taking into account any standards and regulations which may be formulated by the competent international organisations." We also had occasion to look into the evolution of the London

/

Convention as the first genuine, legal regime r~gulating ocean

dumping of radioactive wastes. The Convention, it is seen, provides

a detailed listing system for dumping, with a number of criteria to

be fulfilled before permits are issued by Contracting Parties for

dumping.

Though legally speaking a framework has been in place,

dumping as a deliberate act has continued unabated, openly in

some cases and clandestinely in others. Some of the most effected

26 The Intergovernmental Panel on Radioactive Waste Disposal (IGPRAD) was an expert body established by the Consultative Meeting of the Contracting Parties in 1986 to undertake a scientific, legal, political and socio-economic understanding of dumping of radioactive wastes. See resolution LDC.28 {10), 1986, Disposal of Radioactive Wastes and other Radioactive Matter at Sea.

134

regiOns have been the North-East Atlantic and the South Pacific

Islands.27

At the Seventh Consultative Meeting of the Contracting

Parties to the Convention held in 1983, the delegations of Kiribati

and Nauru proposed amendments to Annexes-! and II to prohibit

the dumping of all radioactive wastes at sea.2s They were of the

view that the life in the island States was heavily dependent upon

manne resources, and the available scientific evidence deary

showed that radioactive dumping was detrimental to the human

lives and also the marine life and biota.29

The scientific evidence adduced by Nauru and other /

countries, was considered not to be sound and complete by other

countries and hence there was no basis to amend the Annexes as

they had stood the test of time.3o After a prolonged debate it was

agreed to convene a Meeting of Experts in the inter-sessional

27

28

29

30

Daniel P. Finn, "Ocean Disposal of Radioactive Wastes: The Obligation of International Cooperation to Protect the Marine Environment", Virginia Journal of International Law, vol. 21 (1981), pp.621-90. IMO Doc. LDC 7/12, 9 March 1983, Report of the Seventh Consultative Meeting, Annex 3, Resolution LDC. 14 (7), Disposal of Radioactive Wastes and other Radioactive Matter at Sea. See IMO Doc. LDC/9/4/3, Report of the Inter-sessional Activities relating to the Disposal of Radioactive Wastes at Sea, including the Final Report of the Scientific Review (The current document is a response or a reply by Nauru to the French study (LDC 7 /INF.2, titled "Evaluation of Oceanic Radioactive Dumping Programmes") which partially justified dumping of low-level wastes. IMO Doc. LDC/IGPRAD 2/INF.14, 26 September 1988, Second Meeting of Inter-governmental Panel of Experts on Radioactive Waste Disposal (26-30 September 1988), Proof of harm: Question identified from the Report of the First Meeting of the Intergovernmental Panel of Experts on Radioactive Waste Disposal at Sea (submitted by United States); Also see IMO Doc. LDC/IGPRAD 2/INF.15, 26 September 1988, Second Meeting of Inter-governmental Panel of Experts on Radioactive Waste Disposal {26-30 September 1988), Proof of Harm: Workshop on Risk and Decision Making (submitted by United States).

135

period, to review the scientific and technical consideration with

regard to the proposal of Nauru for amending the Annexes to the

convention. This historic step by the Contracting Parties was met

with near unanimity, wherein a resolution was adopted calling for

the suspension of, all dumping at sea, of the radioactive materials,

while the above mentioned review was in progress. 31

3.3.1. Scientific Consensus Building

The Expanded Panel of Experts which included independent

and government experts, after an intensive study submitted a

report to the Ninth Consultative Meeting to the London Convention

held in September 1985.32 Some of the results of the report were /

rather astounding and illogical, inter alia, were as follows:

31

32

(a) There is negligible risk to an individual from past, present and future dumping of radioactive wastes in the North-East Atlantic Area. The "risk of developing fatal cancer or severe hereditary defect is predicted to peak above 200 years from now at a level of less than 1 j 1000000000 or one chance in a billion per year". However, as a warning, it stated that people consuming 'shellfish' harvested in Atlantic Waters, could be potential victims.

(b) In terms of casualties the figure would be 1000 persons spread over the next 10,000 years. It was also pointed out that most of the deaths would not be on account of shellfish consumption, but owing to consumption of food produced on land. The main contributor to this was the isotope carbon-14, which has a half-life period of 5700 years. Carbon-14 would escape in the atmosphere and thereby contaminate food; and

(c) As regards, past dumping practices the report said that this incremental dosage would not have any significant effect on

Resolution LDC.2l (9), 27 September 1985, Dumping of Radioactive Wastes at Sea. IMO Docs. LDC/9/4 and LDC/9/4/Corr.l, June 1985, Expanded Panel Report on the Relfiew of Scientific and Technical Considerations Relevant to the Proposal for the Amendment of the Annexes to the London Convention related to the Dumping of Radioactive Wastes.

136

marine orgams1ms as the dosage would be lesser than the naturally occurring radioactivity.

This Report was a scientific analysis based on the scattered

factual information avaialble on the hazards of ocean dumping of

radioactive wastes at sea. A strict litera legis view of radioactivity,

totally ignored the fact that sanction for any nuclear activity

involved social, political and economic underpinnings too. Besides,

it was too much of a simplification to say that shellfish alone would

be the affected marine animal. What about the marine biota,

especially 'green algae' and plankton which are responsible for

purifying natural carbon dioxide and producing oxygen? Besides,

it is a well known fact that oceans constitute the largest sinks in /

the world for accumulating and processing production of carbon

dioxide.

The Report of the Expanded Panel came in for severe

criticism at the Ninth Consultative Meeting of the Parties held in

198533 . Several delegates could not agree as to whether the Report

had conclusively shown that dumping of radioactive wastes low or

high, was environmentally benign or harmless or hazardous and

dangerous. Accordingly, the Contracting Parties decided to call for

further scientific studies combined with a political, legal, social and

economic perspective of the problem. Moreover, it was again

agreed to suspend all dumping of radioactive wastes, pending

33 IMO Doc. LDC 9 I 12, 18 October 1985, Report of the Ninth Consultative Meeting, Annex 4.

137

completion of this study. A landmark resolution34 was adopted by

a majority vote of the Contracting Parties. The ratio stood at 25

voting in favour of the draft resolution calling for suspension of all

dumping activities, 6 voted against and 7 countries abstained.

Resolution LDC . 21 (9) called upon Contracting Parties to: (a) continue suspension of radioactive disposal at sea pending the completion of the studies with technical, legal, social, political and economic ramifications; (b) requested the International Maritime Organization to approach appropriate and competent international organisations to establish and maintain an inventory of radioactive wastes from all sources entering the marine environment; and (c) furthermore, call upon Contracting Parties to develop procedures for the assessment of liability as envisaged in Article X of the London Convention, in accordance with the principle of state responsibility for damage to the environment or any other area of the environment resulting from such dumping.

3.3.2. Inter-Governmental Panel of Experts on Radioactive Disposal at Sea

The Tenth Consultative Meeting of the Contracting Parties

held in 1986 established the Intergovernmental Panel of Experts on

Radioactive Disposal at Sea (IGPRAD).35 This body was mandated

to carry out adidtional studies and technical assessments by

LDC.21(9), which inter alia was entrusted to undertake further

examination of :

(i) the wider political, legal, economic and social aspects of radioactive waste dumping at sea;

34 Resolution LDC.21 (9), 27 September 1985, Dumping of Radioactive Wastes at Sea.

35 IMO Doc. LDC l.0/15, 5 November 1986, Report of the Tenth Consultative Meeting, Annex !I, Resolution LDC. 28 (101, Studies and Assessment Pursuant to Resolution LDC.21 (9).

138

(ii) the issue of comparative land-based options of. disposal and the costs and risks associated with these options; and

(iii) lastly, the question whether it can be proven that the dumping of radioactive wastes and other matter will not harm human life and/ or cause significant damage to the marine environment.

For the purposes of the present study, it is pertinent to note

that a rational ocean policy on dumping would call for a detailed

look at the socio-political, economic and legal aspects of dumping.

Moreover, it would also be worthwhile to have a look at the safety

aspects of radioactive dumping.

This would essentially involve a definitronal analysis of terms

such as harm, safety, proof and other evaluation of risks

associated with human use and disposal of radioactive wastes as a .

hazardous substance. Besides, the role of IAEA in this regard

would also need to be looked into.

The IPGRAD circulated preliminary questionnaires to the

Contracting Parties to get a feedback on ways and means of

assisting it in its future work36 and many States cooperated and

send in their responses.37 However, the erstwhile Soviet Union

refused to abide by resolution LDC .21 (9). It had reservations on

the remit and purview of Resolution LDC.28(10) and was of the

36

37

IMO Doc. LDC 10/15, 5 November 1986, Report of the Tenth Consultative Meeting, Annex to Resolution LDC. 28 (10), Questionnaire for Contracting Parties pursuant to the Implementation of Resolution LDC.28 (10). IMO Doc. LDC.2/Circ.239, 22 May 1989, Summary of Responses to the LDC Questionnaire on Radioactive Waste Disposal: Resolution LDC. 28 (10).

139

view that the London Convention did not have a mandate to

undertake such an exercise. This aspect is discussed in detail in

Chapter IV of the present study.

The IGPRAD met in five sessions from 1988-1992. A final

report on its outcome was presented by the Panel to the Sixteenth

Consultative Meeting of the Parties held in 1993.38 On the basis of

Resolution LC.51 (16), Contracting Parties agreed to a complete

prohibition on the dumping of radioactive wastes and other

radioactive matter at sea.

Accordingly, such a decision demanded the amendment of

the Annexes to the London Convention. The London Convention as /

amended irt 1993, prohibits dumping of all types of radioactive

wastes at sea. 39

Without gomg into the technicalities and the procedural

wrangles i.e., constitution of the Working Groups and vanous

interim reports, the present study attempts an analysis of the

substantive issues undertaken by the IPGRAD.

It is hoped that while considering the socio-economic-legal

ramifications of the work of the IPGRAD, some insight would be

thrown on the institutional aspects of the London Convention.

38 IMO Doc. LDC.l6/ 14, Report of the 16th Consultative Meeting, Annex 5, Resolution LC.Sl (16).

39 The 1993 amendments to the Conventions entered into force on 20 February 2004.

140

3.4. Legal Issues

The IPGRAD's analysis of the legal issues was chiefly based

on the lead paper prepared by Finland titled "International Law on

Dumping".40 Besides, papers were also presented by the Ad hoc

Group of Legal Experts on the Procedures for Assessment of

Liability41. Spain, Australia and Nauru also supplied inputs on

socio-legal considerations of radioactive waste dumping. Though

most Contracting Parties agreed that the lead paper submitted by

Finland was the basic document on the 'international law related to

dumping' , a number of countries including United States, United

Kingdom and France questioned the conclusions reached by the /

lead document.42

Before we look into the vanous contentious issues, let us

consider the main elements of the document, which involved:

40

41

42

(i) examining the provisions of existing conventions and international law regarding the use of sea relating to pollution across international frontiers;

IMO Docs. LDC/IGPRAD 4/INF. 6. "Inter-sessional Studies on Legal Aspects of Radioactive Waste Disposal to Sea". In the IGPRAD meeting held on 22-25 October 1990, Contracting Parties that made submissions were France (LDC/IGPRAD 2/INF.5), Ireland (LDC/IGPRAD4/2/ 1), Japan (LDC/IGPRAD 2/INF.7), Nauru (LDC/IGPRAD 3/3), Portugal (LDC/IGPRAD 2/INF.6), the United Kingdom (LDC/IGPRAD 2/INF.4) and the United States (LDC/IGPRAD 3/3/9, LDC/IGPRAD 4/2/1/ and LDC/IGPRAD 5/2/2). Also see IMO Doc. No. LC/IGPRAD 6/5 Annex 2 at p.15. . IMO Doc. LDC/LG 4/7, 27 December 1990, Ad Hoc Group of Legal Experts on Dumping, Report of the Fourth Meeting of Ad Hoc Group of Legal Experts on Dumping. IMO Doc. LDC/IGPRAD 3/3/9, 24 September 1990, Third Meeting of Inter-governmental Panel of Experts on Radioactive Waste Disposal (24-29 September 1990), International Law on Ocean Dumping {Comments on the report by Finland by United States); Also see IMO Doc. LDC/IGPRAD 5/2/2 Legal Aspects and Liability (Comments by the United States on the report by Finland: International Law on Ocean Dumping (LDC/IGPRAD 4/INF.6).

141

(ii) also exammmg the international consultative and multilateral mechanisms, in particular with regard to internationally recognised duties to consult on the dumping at sea of radioactives wastes;

(iii) evaluation of 'whether international law would require that a state dumping radioactives wastes had a duty to monitor the effects of such dumping on the marine environment and also take steps to mitigate the damage'; and

(iv) the study domestic laws regulating dumping of radioactive wastes.

3.4.1. Existing International Law on Dumping

The Finnish paper stated that the international law on

dumping43 would essentially involve an examination of customary

laws and the conventional processes. As this chapter is largely

devoted to the institutional aspects of the London Convention, and /

many of these issues have been elaborately dealt within the earlier

chapters, it is again hoped that a cursory look should suffice.

3.4.1.1. Customary Law

The Report looked into customary law aspects and felt that

the rudiments lay in Principle 21 of the Stockholm Declaration on

Human Environment which ·read:44

States have in accordance with the Charter of the United Nations and the principles of the international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their

43 IMO Doc. LDCIIGPRAD 21212 and LDCIIGPRAD 212121Corr.l, 4 August 1988, Second Meeting of Inter-governmental Panel of Experts on Radioactive Waste Disposal (IPGRAD), The International Law on Ocean Dumping: Existing Conventions and Customary International Law; Consultation and Multilateral Mechanisms, Monitoring and Mitigating the Effects of Dumping with particular regard to Dumping of Radioactive Substances, (Finland).

44 Declaration of the United Nations Conference on Human Environment (UNHCE) UN. Doc.AI CONF I 48/14 I REV. 1.

142

jurisdiciton or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction.

According to this principle a State has a right of permanent

sovereignty over its natural resources and exploitation of those

resources, but also a concomitant duty to protect the environment

of other States. It is expressed in General Assembly resolutions

3281 (XXIX), 3129 (XXVII)45 and a number of other classical cases,

dealt at length in the earlier Chapter on transfrontier pollution.

The Trail Smelter case46 prohibited the escape of deleterious fumes

from one's own property affecting rights of a neighbouring state.

On the basis of the maxim of sic utero tuo alienam non laedas.

Similarly, Principle 21 finds its rudiments in the Corfu Channel

case47 where the ICJ held that it was the duty of Albania to notify

Great Britain on the presence of dangerous substances (mines) on

its territory.

It must be mentioned here that these two cases along with

the Lake Lannoux case48, are by and large regarded as expressing

the existing customary law on the subject of transfrontier pollution.

Likewise, Principle 21 finds reflection in Articles 192 and 235 of the

United Nations Convention on the Law of Sea. While, Article 192

provides for a general duty to protect and preserve the

45

47

48

See General Assembly Resolutions 1803 of 3 September 1962. Moreover, the Preamble to the Stockholm Declaration also reiterates the recognition right of States to permanent sovereignty over natural resources. United v. Canada, UNRIAA 1905 (1938 and 1941); also see American Journal Of International Law, vol. 33 (1939), p.l82. See ICJ Reports ( 1949). France v. Spain, UNRIAA, vol.l2 (1957), p. 281 and p.315-16.

143

environment, Article 235 provides that States are responsible for

the fulfilment of their international obligations concerning the

protection and preservation of the marine environment ... and shall

be liable in accordance with international law."

These two Articles, read together, provide the legal order of

the seas, especially relating to the protection of the marine

environment, although, a genuine public order would call for all

possible steps to be taken to prevent interference in the legitimate

uses of the sea. Further, this conventional process has been given

a norm creating status in the North-Sea Continental ShelfCases.4 9

The Report went on to adduce evidence of evolution of /

customary international law which prohibits States from polluting

the marine environment by dumping.

The Report also highlighted that the state practice, m this

regard has been illustrated by way of two cases. The first involved

the dumping of 690 barrels of wastes by a Finnish Company,

contaminating the waters of the Atlantic, 550 nautical miles of the

Ivory Coast. The company had planned to undertake dumping

without obtaining the necessary permit from the authorities as

Finland had signed, but not ratified the London Dumping

Convention and the Oslo Convention for the Prevention of Marine

Pollution by Dumping from Ships and Aircraft, 1972. so

49

50 ICJ Reports (1969). Seen. 3.

144

The latter convention also did not expressly prohibit

dumping of arsenic wastes. Moreover, the domestic legislation in

Finland on this subject did not exist. As the dumping operations

received world-wide publicity due to media coverage, domestic

public pressure and international pressure forced the government

to act.

The Finnish government asked the company to apply for a

special dumping permit, which it promptly rejected. The grounds of

rejection were spelt out to be insufficient evidence supplied by the

company, that the operation would not defeat the basic objective of

the London Convention and other regional conventions on the /

subject. The decision was also based on Article 18 of the Vienna

Convention of the Law of the Treaties, 196951 which obliges a state

having signed a treaty not to defeat the object and purpose of the

treaty, prior to its entry into force.

The second case, referred was that of a Dutch Tanker Stella

Maris, which had planned to dump noxious substances in the

North-Sea and the Atlantic Ocean. Owing to the pressure exerted

by a number of developed European states, the Dutch Government

had to a call back the ship which had gone for dumping operations.

The reasons provided for cancellation of dumping permit was the

51 ILM, val. 8 (1969), pp.679-735.

145

Ministerial Declaration adopted during the Second International

Conference on the Protection of the North-Sea, 1987.52

This Declaration saw Ministers from eight European States

calling for a complete ban on dumping of wastes as sea, unless

alternate land options were foreclosed. It reflected the collective will

of North Sea states and was said to be in tune with a general state

practice which played an important role in the development of

customary law on the subject of dumping.

Thus, it is seen that though the delegates by and large

agreed with the pith and substance of the lead paper supplied by

Finland, some countries especially the United States, felt that the /

general standard along with the available state practice was not

sufficient to judge the legality of ocean dumping of low level I

radioactive wastes. 53 Hence, a need was felt to have a relook at the

conventional developments which could be considered as evidence

of rules of customary international law.

3.4.1.2. Conventions and Other Multilateral and Regional Conventions dealing with Ocean Dumping of Radioactive Wastes

The Report went on to outline a number of multilateral and

regional agreements, UNEP regional seas programmes prohibiting

dumping of polluting wastes or other substances at sea. In the

earlier Chapter we had the occasion to analyse that Article 25 of

52

53

E. Franckx, "Conference on Taxies Reductions Programmes in the North Sea and Baltic Sea: A Comparative Perspective"-Introduction", International Journal of Marine and Coastal Law, vol. 13, no.3 (1998}, pp.299-305.

See n.39.

146

the Geneva Convention on the High Seas 1954,54 and Articles 194

and 245 of the UNCLOS 1982 provides for functions. They call

upon States "to adopt laws and regulations and to take measures

as may be necessary to prevent, reduce and control pollution of

marine environment by dumping. These rules shall not be less

effective than the global rules and standards". There was general

agreement that the foremost global lex specialis on dumping of

wastes, especially radioactive wastes was the London Convention.55

The London Convention establishes a black, grey and white listing

system for issuance of permits for dumping or regulating disposal

of radioactive wastes based on toxicity and the hazardous nature of /

the waste. Another convention expressly permitting radioactive

disposal and subject to a permit system was the Convention for the

Pr-evention of Marine Pollution by Dumping from Ships and

Aircraft, Oslo, 1974.56

The Protocol for the Prevention of Pollution of the

Mediterranean Sea by Dumping from Ships and Aircraft,

Barcelona, 1976 also regulated dumping.57 A unique convention, in

fact the only one of its type which prohibits dumping of all wastes,

except dredged spoils, was the Convention on the Protection of the

Marine Environment of the Baltic Sea, Helsinki, 1974.58

54

55

56

57

58

United Nations Treaty Series, vol.450, (1958), p.82 See n. 3 and 7 wherein during the meetings of the IWGP, it was agreed that the LDC as it then was should only concentrate on dumping. seen. 8. ILM, vol. 15 (1976), p. 300. ILM, vo1.13 (1974), p.546-590.

147

The Expert Group also looked into a large number of regional

conventions, which referred to the "internationally recognized rules

and standards related to dumping," set by the London Convention,

recognized as the competent organization in the field of dumping. 59

These conventions consisting of, the London Convention and the

regional conventions, it was felt represented the general law on the

subject.

Another regional zone, deserving special reference was the

South Pacific region. Article 10 of the Convention for the Protection

of the Natural Resources and Environment of the South Pacific

Region, Noumea, 19866° provides that "Parties agree to prohibit /

dumping of radioactive wastes and the disposal into the sealed and

sub-soil of radioactive wastes or other radioactive matter".

Besides, the countries of the region are also party to the

South-Pacific Nuclear Free Zones Treaty61 (Raratonga Treaty),

Article 7 of which provides:

59

60

61

Parties undertake not to dump radioactive wastes and other matter by anyone in its territorial sea ... and not to take any action to assist or encourage the dumping by anyone of radioactive matter at sea anywhere within the South Pacific Nuclear Free Zone.

Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of West and Central African Region, 1986 (Article 6). The Regional Convention for the conservation of the Red Sea and the Gulf of Aden Environment, 1982 (Article 5); Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment from Pollution, 1978 (Article 5). ILM, vol.26 (1986), p.38-96. ILM, vol.24 (1985), p.1440-1463.

148

The South Pacific Regional Environmental Programme

(SREP)62 was constituted as the result of the common desire and

will of the people of the region. It has under its umbrella a large

number of legal formalistic mechanisms to protect the Islanders

who depend upon fishing and tourism for their livelihood.

3.4.1.3. Duty to Monitor the Effects of Radioactive Waste Dumping and Mitigation of Damage to the Environment

The third legal issue considered by IGPRAD was the

international law on the duty to monitor the effects of radioactive

waste dumping and mitigation of damage to the environment.

Though on the face of it the issue of monitoring seems to be a

/

simple one, deeper analysis of the problem would provide proof of

the complexities involved. Monitoring the effects of radioactive

waste disposal strictly speaking is a post-dumping phenomenon.

This duty to monitor the effects of radioactive waste 1s

inscribed in almost every convention/ agreement regulating marine

pollution. Article 204 para 2 of UNCLOS provides that "States shall

keep under review the effects of any activity they engage in order to

determine whether these activities are likely to pollute the marine

environment."

Likewise, the London Convention in Article 6 para 4 provides

that "the Contracting States shall monitor individually or in

62 See generally lchiro Kato Nobuo Kumamoto and William H. Mathews, eds., Environmental Law and Policy in the Pacific Basin Area (Tokyo, 1981).

149

collaboration with other Parties and competent organizations, the

condition of the seas."

A number of regional agreements such as the Barcelona

Convention 1972,63 the Helsinki Convention 1972,64 and Oslo

Dumping Convention 1974,65 provide for monitoring the effects of

dumping operations. The OECD has a well-developed Multilateral

Consultative Mechanism that provides a "duty for advance

consultation and information sharing," in cases of transboundary

environmental harm or threat of such harm.

A States Party, which is about to undertake an activity likely

to cause transfrontier harm, should supply early information on

technical data, provided such data is not prohibi_ted by an act or

legislation. Moreover, such consultation ought to be pursued with

due diligence bearing in mind the foreseeability of the harm or the

potential harm that may be caused. Such a mechanism would

entail principles of good neighbourliness and cooperation to govern

such consultations and also an early warning system in case of an

incident and also concrete plans for minimizing, and if possible

total elimination of the effects of such incidents.

With specific reference to radioactive waste disposal, the

Nuclear Energy Agency (NEA) of the OECD on 22 July 1977

established a Multilateral Consultation and Surveillance

63 See note 50. 64 See note 51. 65 Seen. 3.

150

Mechanism.66 Under this system Participating States are under an

obligation to notify the NEA about any radioactive waste disposal

operations. Other modalities would include supply of information

on: whether the operation is individual or joint; the composition of

waste to be dumped; dumping site selections and reasons for doing

so; an ecological and environmental impact assessment conforming

to IAEA standards, definitions and recommendations; and issuance

of notifications every six months before undertaking the actual

dumping operation.

Further, this Mechanism provides for observation and

monitoring of the disposal operation. To strengthen such a /

mechanism the OECD Council adopted a number of binding

decisions concerning information sharing and consultation in

operations that are risk bearing.

As regards .mitigation for the damage caused, suffice. to say

that the rules of state responsibility provide for means of

reparation whenever there 1s a breach of an international

obligation. Later, Chapter V of the present study will discuss in

detail the international law on liability for transboundary

radioactive pollution caused by dumping.

Mitigation would involve issues regarding compensation,

clean up operations, payment of damages for future harm and also

damage caused to the global environment. It should however, be

noted that not all instances where harm has occurred have been

66 See Annex to OECD recommendations C (74), 224 of 14 November 1977.

151

brought before tribunals or courts, example being the Chernobyl

disaster that occurred in erstwhile USSR, in 1989. Despite

numerous scientific studies on the subject, it has not been possible

for a single State to bring forth claims for compensation owing to a

myriad number of reasons.

3.4.1.4. Public Opinion: Domestic Legislations on Ocean Dumping of Radioactive Wastes

The IGPRAD also looked at another aspect of the

international law on dumping dealing with effectuation of

international treaties at the domestic level. To enable such an

understanding of the problems faced by the Contracting Parties, /

the Secretariat of the London Convention undertook a novel

exercise by circulating a questionnaire to get feedback on the

national laws and regulations on radioactive waste handling,

disposal and liability.67 For the purpose of the present study, it

would be important to have a brief understanding of the answers to

the questions raised, which provides an idea on the state practice

of Member States of the London Convention in the field of disposal

of radioactive wastes. Some of the questions and responses sought

were:

Question 1: Do you have nuclear safety or atomic energy

legislation and radiation protection legislation? If so, what are the

67 IMO Doc.LDC.2/Circ.239, 22 May 1989, Summary of the Responses on the LDC Questionnaire on Radioactive Waste Disposal (Secreta:riat).

152

administrative and regulating arrangements? Are natural

radioactive substances included?

Answer 1: The answers revealed that most of the Contracting

Parties had some sort of nuclear safety and radiation protection

laws in their country. States having nuclear power stations had

more legislation and other regulatory mechanisms. Natural

radioactive substances were also included in the legislative list

where uranium mining or tilling of other nuclear substances or

elements were involved.

Question 2: In addition to regulation or legislation to what

extent are principles of the ICRP followed or corresponding /

recommendation of the IAEA followed?

Answer 2: Most of the countries answered stated that they

preferred the ICRP guidelines and the same were incorporated in

their national legislations.

Question 3: What are your national laws governing the

disposal of radioactive wastes? Do you have any specific laws

governing radioactive waste disposal at sea?

Answer 3: Most countries stated that they had domestic laws

m place governing radioactive waste disposal. While some had

specific legislations, other had more general legislations governing

radioactive waste disposal.

Question 4: Do have legislation prohibiting sea disposal of

high level wastes? Do you have legislation prohibiting sea disposal

of low-level radioactive waste?

153

Answer 4: Most countries answered that they had specific

legislations prohibiting disposal of high-level radioactive waste.

Whereas some countries stated that there were no specific laws

prohibiting low-level waste disposal at sea and prohibition was

enforced by way of administrative orders.

Question 5: Do local jurisdictions within your state have

individual regulations/ laws governing disposal of radioactive

waste? How do these relate to national policy and practice?

Answer 5: It was seen that except the United States, where

local jurisdiction regulated or could regulate radioactive waste

disposal, local authorities of other States had absolutely no role to

play. However, there were instances, wherein Irel~nd and Canada

provided local guidelines to be incorporated into their national

permits or licenses. In the case of Sweden it was seen that local

authorities had the power to veto the establishment of a repository

site.

Question 6: Do you have any judicial decisions interpreting

your laws and regulations concerning sea disposal of radioactive

waste?

Answer 6: Although a number of Contracting Parties to the

London Convention stated that their judicial bodies had rendered

such decisions, they did not furnish any further details.

154

In the light of these answers and the material received the

IGPRAD reached the following conclusions68:

(a) Radioactive ·waste disposal at sea 1s govemed by

legislation in most Contracting Parties. Where a specific

legislation on the topic is missing, disposal is controlled

through decrees or other regulations.

(b) Most governments prohibit ocean disposal of high level

r:-adioactive waste by legislation or by administrative

controls;

(c) Most governments however, do not prohibit ocean

disposal of low-level radioactive waste by legislation.

However, it is seen that prohibition is often implemented

by established official policies or administrative

procedures or licensing bottlenecks;

(d) As regards issuance of permits for ocean disposal of

waste, most Governments indicated that their legislation

provided for a permit system. However, some were of the

view that no permits system was required as ocean

disposal of radioactive waste was prohibited by

legislation.

68 Ibid., p. 11.

155

3.5. Social and Economic Factors69

Even as we attempt a legal analysis of ocean dumping of

radioactive wastes, it is important to study the social and economic

factors that determine the perception of the common man towards

radioactive waste dumping at sea. Moreover, before undertaking a

legal study, it is worthwhile to study the socio-economic issues

involved in the whole process of radioactive waste dumping. Some

of the important aspects that can form the core socio-economic

indicators of waste disposal are: public perception of dumping; cost

benefit analysis; common property externalities; economic

efficiency and social welfare; principle of equity; historic /

responsibility; risk assessment; and social costs.

3.5.1. Public Perception of Dumping

As has been already discussed in Chapter 1, one of the major

reasons for adopting restrained measures/ complete banning of

radioactive waste dumping, has been the perception of the public. 70

For a common man there is no difference between nuclear testing

(underground or atmospheric), nuclear accidents from a reactor or

for that matter, problems occurring due to ocean dumping of

radioactive waste. What he sees and understands, is that as

G9 See IGPRAD, note submitted by Nauru on Economic issues IMO Doc. LDC/IGPRAD 2/2/1 14 July 1988 and also see submission by Nauru on Social and Political Issues IMO Doc. LDC/IGPRAD 2/2 14 July 1988.

70 See social and political issues, ibid., and also see generally M. Miles, et al., Nuclear Waste Disposal under the Seabed, Assessing the Policy Issues, (Berkeley, Institute of International Studies, 1985); and David A. Deese, Nuclear Power and Radioactive Waste: A Sub-seabed Disposal Option? (Lexington, Massachusetts, 1978, p.83).

156

opposed to unseen or matter-of-fact accepted benefits, nuclear '

energy can also pose a serious and near fatal threat to human life.

Scientific, mathematical, or probabilistic assessments of the

effects of radioactive waste on human beings or marine life cannot

always convince the lay mind that nuclear energy and the waste

produced are safe and are needed for the benefit of the society.

Moreover, as the effects of radioactive waste surface after long

period of time, it creates a different type of curiosity, as the source

of environmental harm is not known.

There exists a clear difference of opinion between scientists

and the lay public on the issue of radioactive wastes disposal. /

Technical experts view the problem as one of land opposed to the

sea issue, wherein the matter is disposed and the rest is taken care

by the seawaters, which are assumed to have an inbuilt capacity or

power to degenerate/render harmless, the dumped wastes.

The public understanding of disposal is largely based on the

"pre-existing images of the horror of nuclear war and the conscious

and unconscious uncertainties of exposure"7lcombined with a fear

of "immediate and long term effect of radiation on genetic

processes." Scholars say, "These fears cannot be eliminated by

rational probabilistic assessments of risk for the most important

7 1 See generally Nagendra Singh, Nuclear Weapons and International Law (London, 1957); also see Georg Schwarzenberger, Legality of Nuclear Weapons (London, 1957).

157

human feelings are precisely those least susceptible to

mathematical equations". 72

For these reasons, it would be worthwhile to study what the

work of IGPRAD had to say on this issue. Spain undertook an

important role as a lead country on the various political issues

relating to "public opinion."73 Based on the statistics available on

conducting domestjc polls the following were the findings of the

Spanish s_tudy:

72

73

(i) No disposal options of radioactive waste were greatly

favoured, however, ocean disposal was the least favoured

option; /

(ii) Ecologists and scientists were considered to be the most

reliable sources of information on radioactive wastes and

the resulting pollution;

(iii) A strong public desire for specific information on potential

health effects and the adequacy of safety measures;

(iv) Emotional factors were the most strongest determinants

due to concern over dangers and the effects of illness

caused by radioactivity;

Nauru commissioned paper, unpublished draft titled "Evaluation of Oceanic Radioactive Waste Dumping Programs," July 1982, authored by W. Jackson Davis, Jon Van Dyke and others. See IMO Doc. LDC/IGPRAD 1/INF.S, 18 February 1988, First Meeting of Inter-governmental Panel of Experts on Radioactive Waste Disposal (IPGRAD), Public Opinion Viewpoints and Evaluation on the Problems of Radioactive Waste Dumping (Spain).

158

(v) Lack of knowledge on the effects of radioactivity created

fear in the public which often resulted in non-acceptance

of nuclear reactors and facilities; and

(vi) The perceptions of risks of radioactive damage did not

change with the knowledge of the origin of the ways i.e.

whether the ways are derived from civilian use of nl,lclear

energy or military /weapons grade use it did not make

rnuch of difference.

Apart from the inputs provided by the Government of Spain,

international non-governmental organizations such as the

Greenpeace InternationaF4 and Friends of Earth International /

(FOEI)75 also contributed to the study of the effect of radioactive

wastes.

The Greenpeace International submitted a number of lead

papers on the socio-economic and legal impacts of radioactive

waste dumping76. It was of the view, that due to the perception of

nuclear wastes as dangerous by the international community, a

number of scientific and technical studies were undertaken to find

74

75

76

Greenpeace International, The Technical Case against Radioactive Waste Dumping at Sea: A Review of Technical and Scientific Issues relevant to the work ofthe IGPRAD, July 20, 1992. IMO Doc LDC 11/6/2 and LDC 11/INF.2, 8 July 1988, Eleventh Consultative Meeting of the Contracting Parties to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (3-7 October 1988), Procedures for the Assessment of Liability concerning Damage to the Environment Caused by Dumping at Sea (Friends of the Earth International). IMO Doc. LDC ll/INF.20, 3 October 1988, Eleventh Consultative Meeting of the Contracting Parties to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (3-7 October 1988), International Liability for Damage Resulting from the Dumping of Radioactive Wastes at Sea (submitted by Greenpeace International).

159

alternate disposal options an.d also the effects of radioactive waste

on human life and marine beings.

3.5.2. Cost Benefit Analysis

For an activity such as use of nuclear energy, it is important

to weigh the costs and benefits for analyzing the util~ty of the whole

enterprise to mankind. Developed countries have largely used this

as guiding criteria for arguing the relevance of the use of nuclear

energy vis-a-vis traditional sources of energy.77 As compared to

land-based disposal of radioactive waste, ocean dumping is seen as

a safe and foolproof mode of disposal. It is also argued that ocean

dumping is the most feasible and cost efficient method, as it deals /

with minimizing the efforts involved in transpbrting and disposing

hazardous substances such as radioactive waste.

The paper by Nauru78 explodes this myth and states that

such an effort is largely anthropocentric, denying any voice to the

coastal people and the protection of lower animals such as marine

life. It also ignores the larger issues of distributional justice, equity,

unseen intangible costs involving impacts on human life. Moreover,

it is often forgotten that the exercise of ocean dumping is an

irreversible process. The more specific issues brought out by the

Nauru study includes: common property externalities, efficiency

77

78

IMO Doc. LDC 13/6, 14 December 1990, Thirteenth Consultative Meeting of the Contracting Parties to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (14-18 December 1990), Radioactive Waste Dumping at Sea. Reports published by the United States, Taiwan and OECD in relation to Radioactive Waste Dumping at Sea (submitted by Nauru). See Report by Nauru and Others n. 16.

160

and equity. The latter isslJe shall be dealt with later in the course

of the Chapter.

3.5.3. Common Property Externalities

A common property resource is that area over which no

single country can claim to have exclusive property rights. Such

common properties could include tpe evolving "global commons,"

such as the atmosphere, oceans and seabed, outer space and areas

of the Antarctica.

With respect to these areas, it is very difficult to assign

property rights to any one State, as they are an inter-related whole.

It is seen that despite such resources being kept for the common /

use or the common good of all, they are often used by a few

developed dumping nations, which in some way claim to have a

proprietary interest over them. 79 With respect to dumping of

radioactive wastes this seems to be exactly the situation. A few

States that have the technology and financial wherewithal

undertake dumping largely in areas, which are far away from their

own country or their maritime zones. The Pacific Islanders are one

such victim community who in no way received any benefits

accruing from the use of nucle~r energy, but have had to face the

brunt of radioactive pollution for years to come.

7<) An example could be the mini-deep seabed regime advocated by the United States and other countries in opposition to the developing countries demand that the 'seabed' be regarded as the common heritage of mankind.

161

Oceans as a common resource when used for private

purposes . of a few countries would tantamount to an abuse of

rightsso of other users as they do not share the benefits of nuclear

energy, but have to bear the hazards of using polluted waters,

upon which their livelihood largely depends. Such a use wherein all

nations are to bear the shared responsibility but few of the benefits

amounts to common property externalities.

A common externality scenario was visualized by Garrett

Hardin,81 who is credited with propounding, the now well-known

theory of the "Tragedy of the Commons." According to this theory,

the externalization of costs encourages common users to limit the /

considerations to private or individual benefits accruing to

themselves, using unregulated common property. The result of

such use of unregulated common property is that the common

resources are irreversibly damaged on account of selfish

overexploitation.

This is similar to what happened in cases of radioactive

waste dumping, wherein the large number of dumper States largely

had allocated ocean areas or dumping zones for disposable of

wastes. A time would come when for their own private purpose;

most of the areas of the seas or oceans would have been used for

one or the other dumping purposes, leading to an irreversible

80

81

H. C. Gutteridge, "Abuse of Rights," Cambridge Law Journal, vol.5 (1933-35), pp. 22-45. See generally Garrett Hardin, "The Tragedy of the Commons," in Herman E. Daly, ed., Economics, Ecology, Ethics (London, 1980).

162

damage. A good example of this is the North East Atlantic Ocean,

which was already polluted due to the disposal of hazardous

wastes in the Rhine and the Danube, which emptied in the Atlantic

to further pollute an already polluted ocean!

As a response to continued dumping by France and other

countries the Pacific Island States coined the well-stated policy of

NIMBY (Not In My Backyard). The use of nuclear power sources for

generation . of electricity or other civilian purposes has never

reached the Pacific Islands. Then, why should they suffer losses, by

way of reduced tourist attraction, infection of their beaches, marine

life and food chain? /

3.5.4. Economic Efficiency and Social Welfare

Many of the donee (waste receiving) States, as was revealed

by the study undertaken by Nauru, were of the view that dumping

at sea was economically inefficient and opposed to their social

welfare. In this regard, they favoured the application of the Kaldor-

1-licks compensation principle for judging efficiency of a project

proposal. 82

This principle assumes that in a gtven situation where a

project proposal has to be evaluated, one group may incur more

costs than the other, but nonetheless succeeds in bringing a net

positive result leading to social welfare. Applying such an economic

efficiency to the problem of radioactive dumping it is clear that the

82 See note. 69, p. 5.

163

dumpers would receive more benefit than the donee or accepter

States.

Thus a situq.tion would develop where the gainer and the

looser are literally placed on the same pedestal and this would

result m a situation where: Loss + gain = some gain by some

states.

When gain is maximum, social welfare is enhanced. A major

drawback of this efficiency appraisal criteriop 1s that the

governments applying this formula often set their sights on a

short-term gain. Moreover, harsh economic d~cisions for gain

producing social welfare cannot be rationalized as a Benthamite /

principle of "greatest happiness of the greatest number."B3

Welfare for a few states who can afford distress leads to a

situation where the economic disparity between the haves

(dumpers) and have-nots (donee states) keeps on ever increasing. It

may also be added that welfare of a few cannot be justified by any

standards of public policy of distributional justice. 84 Many have

83

84

Liberalism disapproved Bentham's "'Theory of Utilitarianism', which promised the greatest happiness of greatest number. In the context of the radioactive waste disposal it is seen that the gains from nuclear energy which are supposed to bring about social welfare, largely end up as gains for a few rich countries, whereas the externalities such as pollution and long term effects of radioactive contamination have to be bome by the waste accepting states and States adjoining the dumped regions. See generally John Rawls, A Theory of Justice {Cambridge, , Massachusetts, 1971).

164

also argued that such an economic efficiency formula completely

disregard the ethic~l aspect of radioactive ocean dumping. ss

3. 5. 5. Principle qf Equity

Against the backdrop of Kaldor-Hicks principle, it would be

prudent to study the ethical aspects of equity considerations

applicable to ocean dumping of radioactive wastes. As opposed to

equity under common law, the concept of 'equity in the

international relations" would involve a value judgment, wherein

the gap between the developed and pobr world could be measured

on the basis of fairness, denial of justice and inequality.s6

Publicists have provided polemical connotations to the evolution of /

the new Law of the Sea, "as accommodating all reasonable

demands of equity and efficiency m the emerging world

community."87

On a broader perspective, equity would qualify as equal

opportunity without discrimination between states to the resources

of the world at large, and the oceans in particular. However,

ethically speaking equity would mean as propounded by Rawls:

85

86

87

IMO Doc. LDC 12/6/4, 28 September 1989, Twelfth Consultative Meeting of the Contracting Parties to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (30 October -3 November 1989), Ethical Aspects of Nuclear Waste (submitted by Sweden). Edith Brown-Weiss, In Fairness to Future Generations: International Law, Common Patrimony and International Equity ( 1988). See, John, D. Colombos, The International Law ofthe Sea (London, 1967). D.M. Johnston, ed., Environmental Law ofthe Sea (Gland, 1981); James Barros and Douglas M., Johnston, International Law of Pollution, (New York, London, 1974); R.P. Anand, Origin and Development ofthe Law of the Sea (The Hague and Boston, 1983); C.K. Chaturvedi, Legal Controls of Marine Pollution, (New Delhi, 1981).

165

"All social values, liberty, opportunity, income and wealth, and the basis of self-respect, which are to be distributed equally unless an unequal distribution of any, or all, of these values is to everyone's advantage. Injustice then is simply an inequality that is not to the benefit of al1."88

With regard to dumping of radioactive wastes, it would be

seen that such inequality could lead to the need for understanding

of three sub-types of equity: (i) geographical equity; (ii) procedural

equity; and (iii) intergenerational and intra generational equity.

For the purposes of the prese11t study, as has been

enumerated in the earlier Chapter, equity is a running theme as

the legacy left behind by radioactive waste dumping, continues /

from one generation to another. For socio-economic considerations

the principle of equity has been considered under the following

heads: geographical equity; procedural equity; and inter-

generational equity.

3.5.5.1. Geographical Equity

As the subheading suggests equality has not been meted out

when large number of states with technical means of land disposal

or storage, dump radioactive substances in far off lands in another

State's territorial waters/EEZ jeopardizi11g their livelihood.89 It is

iniquitous for a small group of States largely dependent upon the

oceans for their source of income and livelihood to be asked to bear

88

89 See note 84. See generally Ted F. Peters, "Ethical Considerations Surrounding Nuclear Waste Repository Siting and Mitigation," in Murdock, Leistritz and Hamm, eds., Nuclear Waste: Socio-economic Dimensions of Long-Term Storage (Boulder, Colorado, 1983).

166

the responsibility for a risk bearing activity beyond their territorial

and economic control.

Equity would demand a genuine compensation for the past

and present activities undertaken by dumper states. A provision for

creation of such a precautionary fund has already been provided

under the International Oil Pollution Fund Convention 1971.90

Moreover, there are illustrations where fishermen affected by loss

of fishing on account of people being affected by cancer on account

of the United States testing the hydrogen bomb in the area of

Eniwetok Atolls in the Japanese Trust territory administered by the

US and had to pay compensation.91 /

Given the fact that compensation is often available as a legal

remedy, there remains the problem of evaluating compensation,

assessing the impact of environment, quantifying pollution damage

and above all establishing a nexus between the damage caused and

wherefrom it came i.e. the causa causans. With respect to ocean

dumping it would be important to reiterate again that it is

extremely difficult to identify the polluter m every g1ven

90

91

ILM, vol. 11 (1972), p.284-; Jon M. Van Dyke, "Ocean Disposal of Nuclear Wastes", Marine Policy, vol. 12, no.2 (1988), pp.82-95; W. Jackson Davis and Jon Van Dyke, "Dumping of Decommissioned Nuclear Submarines at Sea: A Technical and Legal Analysis", Marine Policy, vol.l4 ( 1990), pp.467- 476; Jon M. Van Dyke, M. Smith, R Kirk and Suliana Siwatibau, "Nuclear Activities and the Pacific Islanders", Energy, vol. 9 (1984), pp.733-745.

See Cases on International Law, Whiteman's Digest, vol. 4, 1955, p.533; Also see E. Margolis, "The Hydrogen Bomb Experiments and International Law", Yale Law Journal, vol. 64, (1955), pp. 629-647; Myres McDougal and Nicholas Schlei, "The Hydrogen Bomb in Perspective: Lawful Measures for Security", Yale lAW Journal, vol. 64 (1955), pp. 648-710.

167

circumstance because waters cannot be confined to circumscribed

limits or boundaries. Against this backdrop, it would be useful to

ask whether the whole exercise of dumping comes up as a negative

right where you have fewer benefits and more liabilities.

3.5.5.2. Procedural Equity

Ocean dumping of radioactive wastes by its very nature can

be categorized as an inherently risk bearing activity.92 It is risk

bearing because it causes significant transboundary harm, besides

being an activity that is out of human control and bounds, once

dumped. In any given scenario there will be an unequal

distribution of the inherent risks, wherein dumpers are in an /

advantageous position and the accepters of wastes are in risk

bearing positions. It is in such situations that the need for

procedural equity arises for a fair and impartial adjudication.

To evaluate the feasibility of dumping wastes transparency is

needed to reach an independent and well-researched conclusion

with a comprehensive risk assessment of the harm or damage not

only to human beings, but also other marine animals and the

ecosystem as a whole.

Procedural equity would also call for supply of complete

information on the present as well as future potential risks

involved to the pollution victims, as well as those suffering future

damages. There has to be fairness in the whole process wherein

92 C.W. Jenks, "Liability for Ultra-Hazardous Activities in International Law", Recueil des Cours (Rdq, vol. 177, no.1 (1966), pp. 105-196.

168

"those who bear the burden of risks must participate in defining

the acceptability of various social impacts and actions required to

avoid or mitigate the risk involved. "93 Support for such a

proposition is to be found in a number of scholastic writings as

well as the judgment of the ICJ in the Nuclear Test Cases. 94

This aspect of fairness besides being a portion of procedural

equity also touches the subject of distributional justice. In this

regard commenting on the work of the ILC on liability, it was felt

that "the function has been to shift the loss from an innocent to the

responsible causal agent, whether the agent acted wittingly,

imprudently or neither. Such a shift is a matter of equity or /

corrective justice."95

Another issue, which comes as a part of procedural fairness

or equity, is the reversal of the burden of proof. A precautionary

approach has now been incorporated in the London Convention

and other major environmental agreements, which reverses the

burden of proof from the victim to the polluter. The polluter, who is

in the best position to judge the effects of the hazardous substance

and also the wherewithal to control the damage, has to bear the

expenses incurred for cleaning up the damage caused. Similar

stands have been taken in all the liability regimes, wherein the

93

94

95

Thomas M. Franck, "Fairness in the International Law and Institutional System: General Course in Public International Law", RdC, vol. 240, no. III (1993), pp.9-498.

ICJ Reports ( 1974). Oscar Schachter, International Law Theory and Practice, (Dordrecht, 1991), p. 365.

169

. operator is made primarily liable for the damage caused, although

States in some instances may assume residual liability where the

operator cannot do rnuch on account of bankruptcy or inadequacy

of funds.

The essential philosophy behind du~ping (look into work of

IAEA for details) is largely dependent upon scientific and technical

considerations, where a number of factors such as toxicity of

substance, its capacity of bioaccumulation, pe:r;-sistence, and toxic

effects on man and surrounding environment are taken into

consideration. Though scientific enquiry is often the best proof and

safeguard for judging the toxicity and harm causing ability of a /

radioactive substance, it is often seen that ethical values involved

in· an activity tend to be sidelined. Despite public awareness and

participation of non-governmental organizations scientific evidence

to attest the safety of an activity, it fails to placate the plight of

victims, as they have no role to play in policy making.

In this regard, it needs to be highlighted that the Greenpeace

International has done pioneering work in the field of prohibiting

pollution of the ocean in general and garnered support for efforts to

ban ocean dumping of radioactive wastes.96 It has created a general

awareness not only in the developed world with regard to the

Dounreay and Sellafield incidents, but as also taken a lead in

96 For greater details on their current programmatic action in the field of ocean dumping see www.greenpeace.org

170

creating understanding of the need for alternate disposal options in

the developing world. 97

3.5.5.3. Intergenerat~onal Equity

. The term derives its genesis from the pioneering work done

by the Brundtland Commission's Report titled "Our Common

Future."98 The definition of sustainable development attempted by

the Commission guaranteed was a "right of development to the

present generation, without jeopardizing the needs of future

generations." This principle of equity tries to transpose the needs of

the present generations (dumpers) to the needs of coming

generations. /

The principle 1s largely applicable to the activity of ocean

dumping of radioactive wastes. The nuclear energy producing

States today seem to have "unilaterally'' decided that the best way

to harness technology for the needs of the present generations is by

the use of nuclear energy. Such a policy perspective is said to aid

the ever-increasing gluttonous demands of the developed countries

for faster, easier and cheaper means of energy.

The production of nuclear energy needs large amount of

infrastructure development, technical know-how, and financial

investments. The developed countries have used their economic

97

98

See generally Philippe Sands, The International Law of Liability for Transboundary Nuclear Pollution: The Existing Regime, its Deficiencies and a Framework for a New Regime, (London, Greenpeace International, 1989. World Commission on Environment and Development, Our Common Future (Oxford: Oxford University Press, 1987).

171

strength to replace traditional and time-tested modes of energy.

Moreover, it just cannot be denied that alternate sources of energy

are being depleted or are on the verge of depletion due to

increasing industrialisation the world over and the liberalization. of

markets.

As opposed to this trend, the developing world largely is a

late entrant having received nuclear know-how from the western

world. For . example not even 1 percent of India's electricity

demands are met by use of nuclear energy.

The attendant dangers of radioactive energy are there for

everybody to see. Except for C-14, most of the radioactive /

substances have a half-life period ranging from 5,000 to 50,000

years. This longevity of the hazard existing continuously from -one

generation to another has strengthened the resolve of the donee

states to adopt moratorium on ocean dumping.

Intergenerational equity tries to draw a balance between the

needs of our generation with that of the future. 99 Radioactive

wastes by their very nature can be stated to be harmful for future

generations. What really comes to mind is "how should we consider

and justify the bequest by the present generation of all the risks

and responsibilities, all the costs to future generations who have

absolutely no role in the creation of the risk?". This unknown

hazard has created a very asymmetrical, unilateral and hostile

99 See generally Edith Brown-Weiss, ed., Environmental Change and International Law: New Challenges and Dimensions (Tokyo, 1992).

172

relationship between the nuclear haves and the have-nots.1oo For

years there has been a complete absence of any form of co-

operative relationship between the dumpers and the donees.

Legal positivists could argue that there cannot be fixed time

scale for the test of validity of any given action. There is no

international obligation to make present qay generation to pay for

the well being of future generations. It also cannot be denied that

the disposal_ of radioactive waste and the inherent risks to the

oceans is to be .viewed not as an individual concern, but in some

measure the responsibility of the international community as a

whole or an erga orimes obligation de lege ferenda. But the /

translation of this concern, as expected by a rational and diligent

mind, is catered towards the needs of the present generations.

This is a Catch 22 sort of situation for the developing world

and the poorer nations. They are neither in a position to dictate

nuclear policies nor are they able to save themselves or their future

generations from the dangerous effects of hazardous wastes. Added

to these woes, a larger problem for them is fulfilling the needs of

100 See generally V.S. Mani, n.13; J. Spiller and C. Hayden, "Radwaste at Sea: A New Era of Polarization or a New Basis for Consensus", Ocean Development and International Law, vol. 19 (1988). pp. 345-366. Gunther Handl, "Managing Nuclear Wastes: The International Connection", Natural Resources Journal, vol.21 (1981), pp.267-314.

173

present generation i.e. intra-generational needs.l01 But it needs to

be accepted that there is lot of truth in arguing that the needs of

future generation can only be guaranteed if the present generation

avails of its opportunities to overcome mass poverty and other

socio-economic needs.1o2

Hence, a moral dilemma unfolds wherein it would be

extremely difficult to know, judge or control our actions bearing in

the mind the consequences of such acts that could be felt by the

people around in the near future. Legally speaking, the principle of

intergenerational equity is often persuasive and less binding. There

cannot be jurisprudentially speaking rights vested in future unborn /

people. However, you need to keep aside the ~trict Hohfeldian

model of rights and duties and other legal indeterminacies to be

able to fashion a law of nations based on genuine international co-

operation and trust.l03

101

102

103

During the run up to the Rio Conference in 1992, President Mahathir Mohammed of Malaysia (as he then was) when asked about his country agreeing to a binding regime on Forestry Principles being sponsored by the developed western States, is said to have remarked that he would agree to prefer to die rather than agree to restrictions on cutting down trees and paper industry, which significantly contributes to the Malaysian economy. See Edith Brown-Weiss, "Our Rights and Obligations to Future Generations for the Environment", American Journal of International Law, vol. 84 (1990), pp.198-207. There can be powerful arguments of self- preservation also being made by the Association of Small Island States (AOSIS) who know that the c::urrent scientific understanding of climate change has predicted a complete submergence of their mainland by 2025 if global efforts are not undertaken to reverse the unsustainable patterns of living by all countries. Such a situation can involve a decision on not only rights of future generations, but also a duty to preserve the present generation with environmental protection as the vanguard of all developmental activities.

174

An increasingly interdependent world would require a broad

based regime providing horizontal and vertical cooperation between

states.I04 It should be remembered that impoverished states cannot

be expected to look to the needs of their future generations,

especially when they are not able to satisfy and meet the needs of

present ones.

3.5.6. Historic :Responsibilities

It is an established fact, proven by statistical data and

literature that on account of colonization and other imperialist

tendencies, a few countries unjustly enriched themselves at the

cost of a large amount of poorer nations. The doctrine of unjust

enrichmentiOs and the struggles of the people towards self-

determination and freedom from colonization led to the clarion call

of a New International Economic Order. 106 Speaking in terms of

pollution or development, such an order casts a historic

responsibility on the polluter nations to undo their past injustices

by providing financial and technical resources to lesser developed

States to enable them to fulfil commitments or international

obligations.

104

105

106

Wolfgang Friedman, "The Uses of 'General Principles' in the Development of International Law', American Journal of International Law, vol. 57(1963), pp.279-299. See generally Mohammad Bedjaoui, The New International Economic Order (Paris, 1971), p. 23. General Assembly Resolution 3201 (S-VI) of 16 May 1974 on "1he Declaration on the Establishment of A New International Economic Order'; General Assembly Resolution 3202 (S-VI) on 'Programme of Action on the Establishment of A New International &onomic Order'; Official Records of the General Assembly, Sixth Special Session, Supplement No. 1 (A/9559) (New York: United Nations), p. 3-12; reproduced in ILM, vol. 13 (1974), pp. 715-66.

175

Such historic responsibility has been recognized by a

number of multilateral environmental agreements ~nd conventions.

To name a few these i:hcluqe; the United Nations Framework

Convention on Climate Change107 and the Kyoto Protocol, 10s the

Convention on Biological Diversity, 109 the UN Convention on

Combating Desertification110 and the Vienna Convention on the

Protection of th~ Ozone Layer 1985111 and its Montreal protoco1.112

Besides granting special preferential treatment to developing and

underdeveloped states, these treaties call upon the developed

states to provide new and additional financial resources and

technology to developing states to enable them to overcome /

incremental costs incurred m fulfilling their international

commitments.

According to Edith Brown Weiss, intergenerational equity can

be based on four criteria:

107

108

109

liO

Ill

112

1 The principles should encourage equality among generations, neither authorizing the present generations who exploit resources to the exclusion of future generations nor imposing unreasonable burdens on the present generations in indeterminate future needs;

11. The principle should not require one generation to predict the values of future generations;

111. They should be reasonably dear when applied to foreseeable situation; and

ILM, vo!. 31 (1992), pp. 851-873. ILM, vol. 37 ( 1998), pp.32-43. ILM, vol. 31 ( 1992), pp. 822-846. ILM, vol. 33 (1994), pp. 1332-1383. ILM, vol. 26 (1987i, pp. 1529-1541. ILM, vol. 26 (1987), pp.1550-1561.

176

IV. They must be shared generally by different cultural traditions and be acceptable generally to different economic and political systems. 113

Be that as it may, it must be stated that equity as a function of

compensation cannot achieve much by means of moral principles

alone. Economic analysis such as discounting, which involves

calculating the present value of future costs and benefits is equally

·important.

The IGPRAD apart from considering the studies prepared by

the Governments of Nauru, United Kingdom, France, Japan and

Finland also considered a study prepared by Sweden entitled

'ethical aspects of nuclear wastes'.1 14 It stressed the need to have

dispassionate look at the whole issue of nuclear waste disposal.

The ethical assessment required two lines of reasoning to be

pursued. One, it stated that for a technical product meant to be

used for a longer period, it must be safe in operation and be

capable of being repaired. Such an analogy applied to nuclear

waste would mean that radioactive waste should be disposed off in

such a way that we can predict that future generations will be

under no obligation to undertake protective measures against

environmental degradation.

As regards the second line of argument, the reparability of

wastes would entail that future generations should be in a position

113

ll4

E.B. Weiss, "[nter-generational Equity in Intemational Law", Proceedings ofthe American Society oflntemational Law 1987, pp.126-133. See generally n. 85, dealing with Sweden' work on Ethical Aspects of Dumping.

177

to undo or repair the ipjury and harm caused. This line of

argument would involve advancement in scientific knowledge

wherein coming generations would have the capacity to deal with

nuclear wastes that increased the safety and allowed energy

resources to be put to use. Besides, scientific knowledge and

understanding should ensure that nuclear repositories should be

so constructed that they will need absolutely no surveillance or

monitoring once they are sealed.

3.5. 7. Risk Assessment

The risks and the uncertainties involved in any g1ven

hazardous activity are the most important indicators to determine /

the viapility of an activity. A high amount of risk and uncertainty

are equivalent to costs that would arise once the project appraisal

is completed. While dealing with hazardous activities you need to

undertake serious contingency planning so that the society is

prepared for any given eventuality.

With regard to ocean dumping of radioactive waste it must be

borne in mind that dumping is an irreversible process. The effects

of dumping would also require a cleanup within circumscribed

limits and retrieval of dumped substance. Besides, there have been

efforts made by a number of countries to dispose radioactive

wastes either in the deep seabed geological sites or by dumping

178

wastes from lap.d th.~t would not technically violate the London

Convention. liS

The FarraJlon~ Isl~pd dumping of low-level radioactive

wastes by United States was so scattered that any attempt to

recover the dumped barrels was prohibitively expensive and the

Environment Protection Agency (EPA) had to abq.ndon the project

midway.

Due to such a state of irreversibility it is imperative that

policy makers follow a more guarded and conservative approach

towards dumping. This would essentially involve a choice of values.

Through number of various instances, it is evident that, ocean

disposal is an irreversible act than compared to land based

disposal, where once dumped, you would have to incur additional

costs for such a choice.

3.5.8. Social Costs

Though some portion of the cost factor involved m

radioactive waste dumping has been discussed earlier, it 1s

important to emphasise that the viability or feasibility of any

dumping activity is largely dependent upon costs involved. In fact

the London Convention too, requires the national authorities that

issue special dumping permits to take into account "the practical

availability of alternative land based methods of treatment,

115 Clifton Curtis, "Legality of Seabed Disposal of High Level Radioactive Wastes under the London Dumping Convention", Ocean Development and International Law, vol.14 (1985), pp.383-416; E.D. Brown, "International Law and Marine Pollution: Radioactive Waste and 'Other Hazardous Substances", Natural Resources Journal, vol. 11 (1971}, pp.220-225.

179

disposal or elimination or of treatment to render the matter less

harmful for dumping at sea."116 Costs117 can be of different types

and may include: direct costs, indirect costs and. also intangible

costs.

3.5.8.1. Direct Costs

As opposed to land-based disposal of radioactive wastes,

which entail costs for transportation, monitoring, accidents,

associated cleanup operations, research and programme

administration, those for ocean dumping are different. Ocean

disposal would need overseeing not only transportation of the

dumped material to the designated dumpsite, but also transfer /

from the ports i.e. inter-modal transportation.

As ports are usually densely populated, port handling and

transportation could prove to be a risky operation requiring special

care. Monitoring of the dumping activity, often very technical in

nature can also prove to be highly cost intensive.11s Besides these

known exigencies, there could be situations where in-depth

research has to be under.taken. In such a g1ven scenario,

considerations of equity would require the nuclear dumping

nations who have the technical expertise as well as financial

strength to undertake mandatory environment impact assessment,

116

117

118

See IAEA Information Circular 205.

See generally R.H. Coase, "The Problem of Social Cost", Journal of Law and Economics, vol. 3, no.1 (1960), pp. 1-44; Also see Frank H. Stephen, The Economics ofthe Law (Brighton: 1988), pp.27-40.

W. Bowen and B. Hollister, "Pre-and Post-Dumping Investigations for Inauguration of New Low-Level Radioactive Waste Dumpsites," Radioactive Waste Management (1981), p. 236.

180

before any dumping operation. It would also be worthwhile to note

that as opposed to land disposal where data is easily available,

ocean dumping would require inputs from bodies such as

International Oceanographic Commission, the IMO itself and other

scientific bodies such as GESAMP on the effects of dumping.

The actual ocean disposal of radioactive waste would involve

compliance with the procedures provided for in the London

Convention, besides regulation by various domestic maritime laws.

3.5.8.2. Indirect Costs

Direct costs as has been seen above are easy to evaluate and

also compute. Whereas, indirect costs involve costs of /

externalisation, which are largely the costs needed for

environmental protection. It is a general practice that costs

affecting protection of the environment are not internalised in the

costs of production. These costs, which do not directly impinge on

the operation of activity, do however, affect the overall efficiency of

dumping involved.

As oceans do not directly contribute to the sustenance of the

human life, although they provide a large amount of marine food

and are also involved in regulating human food chain, costs of

dumping for protection of the marine environment are not often

taken into consideration. But, as, is well known that oceans play

an important role in regulating atmospheric oxygen level through

181

the respiratory process of mar~ne algae, 119 they also provide vital

food to coastal people, apart from, recreation and use for

commercial shipping.12o

There is a growing demand for internalising the costs

involved in sustenance of the environment. A well-developed

principle seen in the last Chapter is that of "polluter pays," which

provides an economic policy for internalising the costs of

environment. Besides, green labelling and other international eco-

standards, the OECD and European Community have adopted

stringent measures for internalising the indirect costs involved in

protecting the environment in general and the marine environment

in particular.

3.5.8.3. Intangible Costs

Along with, direct and indirect costs involved in dumping

operations there are some costs that cannot be accounted purely

on a material basis, and hence are called intangible costs. These

costs however often prove to be real in nature and thus have to be

taken into consideration while undertaking any project appraisal.

Ocean dumping of radioactive waste although seemingly affects

only the marine environment, it does have a direct bearing on

human health. The degree of exposure by dumping of high level

119

120

See generally W. Jackson Davis, The Seventh Year: Industrial Civilization in Transition (New York W.W. Norton, 1979); also see Jon Van Dyke, Smith and Siwatibau, "Nuclear Activities and the Pacific Islanders," Energy, vol. 9 (1984), pp. 733-745. Ibid., p.734.

182

and low-level radioactive waste is a subject of much debate among

scientific bodies121.

Although, all the Contracting Parties to the London

Convention adhere to the findings of International Commission for

Radiological Protection (ICRP), 122 mapy States still have doubt as to

whether low level waste needs to be stored or disposed in land

depositories. They advocate an assimilative capacity formula for the

oceans, which is stropg enough to breakdown even the dumped

radioactive material. But, as examined earlier, low-level wastes

produce long drawn and future effects on coming generations.

It is for these reasons that a number of smaller island /

countries have demanded creation of funding mechanisms to be

able to disburse funds for pollution damage to life, property and

environment.l23 Another area of concern is who should pay for

future damages that can crop up, a long time after dumping

operations are undertaken.

There is the psychological element of intangible costs

involved in ocean dumping of radioactive waste. Human injury in

cases of radioactive contamination can be of two types. One, where

due to a sudden nuclear accident/incident or explosion/bombing

the effects are grave, visible and immediate. Injuries caused by

121

122

123

See Sara Shannon, An Overview of Hazards of Low-Level Radioacti1Jity, 1998 at http://ratical.org International Commission on Radiological Protection (ICRP), Recommendation of the lCRP (Oxford: Pergamon Press, Publication No. 26, 1977); Also see ICRP, Recommendations of the ICRP (Oxford and N.ew York: Pergamon Press, 1991). See Jon Van Dyke, n. 90, p. 88.

183

emission of alpha, beta and garpma radiations causes diseases

such as cancer and breakdown of the central nervous system.

As opposed to this, the second type of contamination is slow

and largely unseen. In such instances, it is seen that low-level

radioactive wastes do not produce sudden injuries, but surely

affect the human body by means of genetic an<;l mutational

metamorphosis. 124

Human suffering, especially bodily injl.'!.ry has certain

finiteness to it, and diagnosis of an injury to a large extent

mitigates the agony of the suffering. Thus coastal people having

known of acts involving radioactive waste dumping operations are /

subjected to potential blackmail, as they are not ~tJ.re of the effects

of radioactive wastes on their body and mind. This mental element

of suffering cannot be quantified by way of material or monetary

damages. 12S

We find compensatory remedies for such mental agony in

domestic common law and civil law system. The judgment of the

House of Lords in Donougue v. Stevensonl26 is a case on this point.

The US Court of Appeals for the District of Columbia in a casel27

124

125

126

t:n

See generally A.A. Huguen, A History of Low Level Radioactive Waste Disposal into the Sea, (New York, 1993). See McDougal, and Schlei, N., "The Hydrogen Bomb in Perspective: Lawful Measures for Security", Yale Law Journal, vol. 64 (1955) pp.648-710.Mc0ougal, M.S., "The Hydrogen Bomb Tests and the International law of the Sea," American Journal of International Law, vol.49 (1955) pp.356-378. Compensation was awarded to Japanese fisherman in the Shimada Trial after the US tested the Hydmgen bomb at Bikini Atolls. 1932, AC, pp.562-618. Friends for All Children v. Lockheed Aircraft Corporation, F 2d, 816, District Court, 1984, p. 7 46.

184

held that the Lockheed Air9raft Corporation shall pay re~sonable

expenses from a $50,000 fupd created for monitoring ne~rological

disorders suffered in a 1975 plane crash, which left a number of

children orphan. Tortious liability is often by means of unmitigated

damages for long drawn sufferings. However, international law

especially public international law does not recognize rules of fault

based or negligence oriented tortious liability. There have been

efforts by internation~l organizations to establish what have been

called as international pollution funds and medical funds to cater

the needs of victims of pollution damage.I28

3.6. PQlitical factor~

Even as legal issues are of principal importance to the study

of an ocean dumping regime, also significant is the political

dimension of the problem, which should be addressed. At the level

of international politics, there is clear divide between the few

nuclear power dumper states and the large number of developing

donee states. There exists, as has been seen earlier, a perennial

source of friction because of the hazards associated with

production of nuclear energy and the options available for disposal

of radioactive waste.I29

128

129 See van Dyke n. 90, p.93. See Spiller n. 97; Also see J.M. Brewer and C. R. Garrett, "Analysis of the Issues related to Sea Dumping of Radioactive Wastes", Marine Policy, vol. 11 (1987), pp.105-124. John W. Kindt, Marine Pollution and the Law of the Sea (New York, 1986); John Kindt, "Effects of Claims by Developing Countries in the Law of the Sea Convention and International Marine Pollution Negotiation", Virginia Journal of International Law, vol. 20 (1980), pp.313-45. Michael. S. Schenker, "Saving a Dying Sea? The

185

A near conflict situation that has relatively eased as of date

is the bellicose attitude of the Pacific Island states to the issue of

radioactive contamination of their territories and adjacent internal

waters.l30 Most of the island States who are dependent upon

tourism and sea related revenues, were wary of efforts by the

Western powers to dispose wastes in and around their territorial

waters. Their political resolve lead to the adoption of the Noumea

Conventionl31 and its Protocoll32, as well as the Waigani

Convention and the Raratonga Treaty that prohibits the entry,

transport and dumping of any radioactive substance in the Pacific

region and it also leads to the oft-repeated slogan of NIMBY. /

At the domestic level, issues such as public opinion that

influence opposition to radioactive waste disposal assume special

significance. There are number of international non-governmental

organizations that in coordination with the local people generated

strong public opposition to transportation and dumping of

radioactive waste. The efforts of the Greenpeace International and

the Friends of the Earth are well documented and often receive

wide media coverage on account of the novel tactics adopted.

Another 'issue that often influences public opinion is the

disposal of military radioactive wastes. Although the study does not

London Dumping Convention on Ocean Dumping," Cornell International Law Journal, vol. 7 (1973), pp.32-48; See Spiller n. 97.

130 See generally Van Dyke, note 90. t31 Noumea Convention for the Protection of the Natural Resources and the

Environment of South Pacific Region of 25 November 1986, ILM, vol. 26 (1986), pp. 38-59.

132 The Protocol for the Prevention of Pollution of the South Pacific Region by Dumping, ILM, vol. 26 (1986), pp. 60-64.

186

cover military wastes, in comparison to hospital or research

wastes, military wastes bring in memories of the horrors of war and

the sordid tragedies of Hiroshima and Nagasaki. The fear and

anxieties are further exacerbated because of the secrecy and

double-speak that shrouds the origin and destination of disposal of

military wastes.

Public opinion about nuclear activities is frequently based on

the various nuclear accidents that occur. The Three Mile Island

incident in the United States, the Chernobyl disaster in the

erstwhile Soviet Union and sinking of the nuclear powered

submarine Kursk Navigator belonging to the Russian Federation, /

have all added to heighten public suspicion about use, storage,

transportation and disposal of radioactive wastes.

The mess m the disposal of decommissioned nuclear

submarines and a number of reactors shutdown and their

material, the Russian Federation finds itself today, is largely due to

the environmentally hazardous policies of the Russian Navy.133 It is

also extremely difficult to build up a world public opinion to favour

use or disposal of radioactive wastes~ because there is so much of

hunger and poverty today those nuclear energy activities in general

are viewed as a rich countries pastime. This is not to deny that the

133 See the website http: //www.bellona.org for a detailed account of the problems in disposal of nuclear wastes in general Also see generally Murray Fatback and Alfred Friendly Jr., Ecocide in the USSR: Health and Nature under Siege (Moscow, 1992).

187

IAEA has made a{ld cqntinues to make serious efforts to educate

the public on the safety aspects of n~clear energy.l34

Within the IGPR.A,D, Spain undertook to conduct a special

study on the public opinion that influences dumping of radioactive

waste.I3S Further, Norway, I36 United States, l37 Nauru, 138

Portugal, 139 France14b and Japan 141 agreed to contribtJte towards

the study undertaken by Spain.

Some of the important issues that were raised during the course of the study included:

134

135

136

137

138

139

140

141

K.T. Thomas, "Public Understanding of Radioactive Waste Management Issues: Perspectives and the IAEA's Role", IAEA Bulletin, vol.4 (1989), pp. 51-54. Also see Lauristan S. Taylor, "Judgment in Achieving Protection against Radiation," IAEA Bulletin, vol. 22, no.l (1980), pp.l5-22. IMO Doc. LDC/IGPRAD 1/18, 18 February 1988, First Meeting of Inter­governmental Panel of Experts on Radioactive Waste Disposal (IPGRAD), International Liability for Damage resulting from the Dumping of Radioactive Wastes at Sea (Spain). IMO Doc.LDC.2/Circ.244, 4 August 1989, Third Meeting of Inter­governmental Panel of Experts on Radioactive Waste Disposal (IPGRAD Cost-benefit Analysis of Dumping of Low-Level Radioactive Wastes at Sea (Norway). IMO Doc. LDC/IGPRAD 2JINF.14, 26 September 1988, Second Meeting of Inter-governmental Panel of Experts on Radioactive Waste Disposal (26-30 September 1988), Proof of harm: Question identifiedfrom the report of the first meeting of the Intergovernmental Panel of Experts on Radioactive Waste Disposal at Sea (submitted by United States). IMO Doc. LDC/IGRPAD 2/2/1, 14 July 1988 Second Meeting of Inter­governmental Panel of Experts on Radioactive Waste Disposal (IPGRAD Intersessional Studies on Radioactive Waste Dumping at Sea: Economic Issues (Nauru). IMO Doc. LDC/IGPRAD 2/INF.6, 21 July 1988, Second Meeting of Inter­governmental Panel of Experts on Radioactive Waste Disposal (26-30 September 1988), Comments on the Legal, Political, Social and Economic Aspects (submitted by Portugal). IMO Doc. LDC/IGPRAD 2/INF.5, 21 July 1988, Second Meeting of Inter­governmental Panel of Experts on Radioactive Waste Disposal (26-30 September 1988), Comments on the Legal, Political, Social and Economic Aspects (submitted by France). IMO Doc. LDC/IGPRAD 2/INF.8, 22 July 1988, Second Meeting of Inter­governmental Panel of Experts on Radioactive Waste Disposal (26-30 September 1988), Comments on the Question of Whether it can be Proven that any Dumping of Radioactive Wastes and other Radioactive Matter at Sea will not Hann Environment (submitted by Japan).

188

a. What are the major policies adopted by countries on ocean dqmping and storage of radioactive waste?

b. What is the opinion of international white papers on duinpirig of radioactive waste by a body such as the Brundtland Commission? and

c. What are the means of information on the dumping of radioactive states at sea which are available to the public? How is this public opinion formed? Does public opinion on the risks associated with nuclear waste dumping, change depending on the origin of waste (civilian or military waste).

3.6.1. Policies that Influence Radioactive Waste Dumping

Though it is not possible to draw a clear-cut distinction for or

against such a policy, past history and practices of dumper states

show that political expediency largely guides such decision-/

making. Countries undertake disposal of radioactive waste because

of domestic public opinion against terrestrial storing, as well as

lack of any other means of disposal other than the oceans. Oceans

also appear to be the safest bet, as they do not belong to any one

state, excluding the territorial waters and EEZ.

Most of the developed states have domestic legislation

prohibiting or stringently regulating handling, storage and disposal

of radioactive wastes. Hence, the easiest option available for

dumping of radioactive waste remains the oceans where there is

little public accountability and also lack of established rules of

liability.

Apart from these socio-legal controls, the dumper states also

have established policy and complete faith in the work undertaken

by scientific bodies such as the ICRP and GESAMP.

189

The decisiop of the ICPRP, which coUates facts and figures

applicable to the effe~ts of radioactivity on marine organisms to

human beings, has largely been accepted as the competent body by

the western scientific world. The findings of the ICRP that (1000)

one thousand lives wot1ld be lost in (10,000) ten thousand years

seem to create an understanding that o~ean dumping of low-level

radioactive waste remains the best availc::tble and practicable

environmental option.I42

The discussions in the IGPR.AD143 saw different op1mons

being expressed. Nauru and other Pacific Island nations felt that

dumping was and continued to be an expeqient act. Whereas, the /

United Kingdom was of the view that ocean disposal of low-level

radioactive waste re!Ilained the best available and environmentally

sound option, as land disposal was not only cost intensive, but also

created a risk to the population living along the cost.

France and Switzerland expressed a view that the tested

scientific methods were full proof and hence priority must be

accorded to ocean disposal, when evaluating disposal options.

Other countries such as Portugal, New Zealand and Australia

opposed ocean dumping on the ground that the risks associated

are largely unknown and must be studied by a prior impact

assessment, before undertaking dumping. The erstwhile Soviet

142

143

Report of the Expanded Panel, seen. 32. IMO Doc. LC/IGPRAD 6/5, 31 August 1993, Report of the Sixth Meeting of IGPRAD.

190

Union felt that land b~sed disposal options were time tested and

scientifically sound and the same should be continued.

Whereas, the United States believed that the IAEA definition

and recommendations based on the ICRP guidelines should be

adhered to. Japan favoured a decision making on the basis of

consensus among the Contracting Parties, as to whether any future

dumping activity should be undertaken.

Greenpeace opposed any form of dumping of radioactive

waste on the ground that that it is harmful to human life as well as

marine and benthic organism of the oceans.l44

From the perusal of the above, it may thus be stated that the /

IGPRAD did not find any one single policy that determined

attitudes of the States towards ocean dumping. The largely

developed OECD countries and their Nuclear Energy Agency (NEA)

have evolved a common policy based on scientific evidence

available, while the large numbers of dumper nations court the

ICRP guidelines as the rriost authoritative on the subject.

Whereas, the donee States view the ICRP reports with

scepticism as they believed that standards applicable to human life

cannot be transposed to marine life and other organisms. They also

questioned the fundamental understanding of the scientifically

144 IMO Doc. LDC/IGPRAD 5/3, The Technical Case against Radioactive Waste Dumping at Sea (Greenpeace International); IMO Doc. LDC 13/3/2, 6 August 1990, Thirteenth Consultative Meeting of Contracting Parties to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (29 October-2 November 1990j, Protection of the Marine Environment through the "Precautionary Action" approach (submitted by Greenpeace International).

191

advanced countries that dumping is essentially a safe exercise and

the oceans in their vastness are fully capable of assimilating and

breaking down the toxic character of radioactive waste.

Dumping of radioactive wastes at sea as a policy option has

been kept in hold due to the self-imposed moratorium adopted by

the dumper States in 1983. However, it is clear that the findings of

the IGPRAD have impressed few of the traditional dumping

nations. United Kingdom and France, as has been stated earlier

continue to keep their options for ocean dumping wide open and

the next chapter shall look into regional attitudes on ocean

dumping. /

In fact m the Consultative meetings of the Contracting

Parties, as well as the OECD and European Community, both

maintained that a self-imposed moratorium can have no legally

binding effect. The Russian Federation is "completely at sea" and

despite increased international assistance they are unable to clean

up the nuclear disposal mess they are in after the breakdown of its

predecessor State the Soviet Union.

3.6.2 Challenges to the Effectiveness of 1996 Protocol: The De Minimis principle and the case for Sub-seabed Disposal of Radioactive Wastes

As of date the 1996 ProtocoJ145 to the London Convention

1972, has received 21 ratifications, 8 States are still to complete

145 Rene Coenen, "Dumping of Wastes at Sea: Adoption of the 1996 Protocol to the London Convention 1972", Review of European Community and

192

their internal procedures of ratification. The Protocol shall enter

into force 30 days after the deposit of the 26th instrument of

ratification, provided 15 Contracting States to the Convention are

also parties to the Protocol. While its entry into force is expected in

a year or two, the real challenge to the effectiveness of its

precautionary regime, has been thrown by insistence of the IAEA

defined principle of de minimis and the continued efforts of States

to circumvent the mandate of the London Convention, by arguing

for deep-seabed disposal of high and low level wastes and

decommissioned nuclear submarines.

3. 7. De Minimis and Options for Deep Sea Bed Disposal of Radioactive Waste /

One of the mandates of the IGPRAD was to "define

quantitatively the exempt levels of radionuclides for the purpose of

the London Convention 1972". The rationale was to set different

levels of radioactivity below which waste streams would be beyond

special regulatory concern and thereby be allowed under the

procedures prescribed by the London Convention for dumping.

The 5th session of the IGPRAD considered a paper on options

on the disposal at sea of radioactive wastes.146 This paper assumed

importance in the light of the decision of the 16th Consultative

146

International Environmental Law (RECIEL) (London), vol. 6, no.1 (1997), pp.54-60; Olav, Shram Tokke, "Beyond Dumping? The Effectiveness of the London Convention", Yearbook on International Cooperation in Environment and Development, vol. 2 (1998-99), pp.39-50; Yanda Lamm, "The Protocol amending the Vienna Convention", Nuclear Law Bulletin, vol.61 (1996), pp.7-24. IMO Doc. LDC/IGPRAD 5/6.

193

Meeting of the Contractiflg Parties to c~ll f<;>r a total ban of dumping

of all radioactive wastes at sea. At the 5th meeting of IGPRAD, the

US Representative stressed the need for Contracting Parties too

ensure that the definition of de minimis of radioactivity be taken

account, before undertaking a "decision on the acceptability of

disposal at sea" .147

The comprehensive ban on disposal of radioactive wastes

after the IGPRAD submitted its final report in 1993 has brought to

surface the issue qf deep sea bed emplacement of high level

radioactive wastes. The issue, as has been seen before is settled by

the ban imposed in 1983. However, a numqer of countries /

including United Kingdom and France insist that a self imposed

moratorium does not create any form of binding obligations. In

fact, in the OSPAR Convention which is dealt in the next chapter,

both these countries have placed reservations on any future

disposal of high level wastes in the deep sea bed.

While the issue of de minimis dumping 1s being actively

considered by the IA~A and the London Convention, there seems to

be no consensus on how low can minimis be? A classification of

trace contaminants should not disturb the delicate balance

achieved by IGPRAD. Besides, deep seabed disposal of wastes is

147 See generally, A.A. Huguen, A History of Low Level Radioactive Waste Disposal into the Sea, (New York: Princeton, 1993); David A. Deese, Nuclear Power and Radioactive Waste: A Sub-seabed Disposal Option? (Lexington, Massachusetts: Lexington Books, 1978).

194

always an issue that can throw to wind the whole 1ssue of

reasonable regard/use of the oceans.

3.8. Conclusions

The London Convention establishes a comprehensive legal

and institutional mechanism management of radioactive disposal.

From 1972, when it was established to date, the Convention has

successfully adopted 'tacit acceptance' resolutions, which have

stood the test of time. 'Ta,eit acceptance' is hard an obligation as

any other treaty.

The 1996 Protocol to the Convention needs to be

supplemented by other multilateral and regional efforts. Further, /

an important victory is bringing on board the Russian Federation

to accept Resolution LC. 51 ( 16) of 1993 banning all radioactive

wastes at sea. This opportunity must not be lost.

In the light of the global regime discussed above, the next

chapter will look at the regional efforts to control dumping of

radioactive wastes at sea.

195