Hostname: page-component-586b7cd67f-rcrh6 Total loading time: 0 Render date: 2024-12-02T22:07:01.118Z Has data issue: false hasContentIssue false
  • English
  • Français

Hard Law, Soft Law, Emerging International Environmental Law and the Ocean Disposal Options for Radioactive Waste

Published online by Cambridge University Press:  21 May 2009

Ellen Hey
Get access

Extract

Radioactive waste is not at present, at least officially, dumped at sea or disposed of into the seabed. At the regional level, several treaties prohibit such disposal. At the global level, the dumping at sea of high-level radioactive waste and the disposal of all radioactive waste in Antarctica, including the ocean areas south of 60 degrees south latitude, are prohibited by international law. The dumping at sea of low-level radioactive waste and the sub-seabed disposal of all radioactive waste (hereinafter also referred to as the ocean disposal options), at the global level, are subject to legally non-binding and temporary suspensions or moratoria. It is thus that the ocean disposal options remain on the international agenda and that the permissibility of using these options remains an issue of debate.

Type
Articles
Information
Netherlands International Law Review , Volume 40 , Issue 3 , December 1993 , pp. 405 - 448
Copyright
Copyright © T.M.C. Asser Press 1993

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. See infra section 3.2.3.

2. Art. 4and Annexl, Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention 1972 – formerly referred to as the London Dumping Convention), 11 ILM (1972) p. 1291.

3. Arts. 5 and 6, Antarctic Treaty, 11 ILM (1972) p. 251.Google Scholar

4. See infra section 3.2.2.

5. See infra sections 3.2.3 and 3.3.3. Generally on the role of soft law in international regimes for die protection of me environment see: Birnie, P.W. and Boyle, A.E., International Law and the Environment (1992) pp. 26–30Google Scholar; P.-M. Dupuy, ‘Soft Law and die International Law of die Environment’ 12 Michigan, JIL (1991) pp. 420–435Google Scholar; G. Handl, ‘Environmental Security and Global Change: The Challenge to International Law’, 1 Y. Int. Env. L. (1990) pp. 1–33 at pp. 7–8Google Scholar; A. Kiss, and Shelton, D., International Environmental Law (1991) pp. 108–113.Google Scholar

6. The World Commission on Environment and Development (WCED) in its report asserts that the burden of proof has been effectively reversed to those States who wish to engage in dumping radioactive waste. The Commission, however, also asserts that this reversal of the burden of proof, although revolutionary, is not legally binding (Our Common Future (1987) p. 271Google Scholar). See also Birnie, and Boyle, , op. cit. n. 5, pp. 323–325Google Scholar and the conclusion on p. 254 that ‘evidence points firmly towards the emergence of more specific rules of international law governing the protection of the environment, such as the prohibition of radioactive pollution of the seas’. The significance of this conclusion hinges on the definition of pollution of the marine environment. Such pollution is generally accepted as entailing ‘the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hinderance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities’ (emphasis added) (Art. 1(4), United Nations Convention on the Law of the Sea (UNCLOS), 21 ILM (1982) p. 1261). Experts disagree exactly on the point as to whether the ocean disposal options would have any of these effects (see infra nn. 35 and 36).Google Scholar

7. For further information see: P.M. Wijkman, ‘Managing the Global Commons’, 36 Int. Organization (1982) pp. 511–536.

8. Arts. 87, 89, 136, and 137, UNCLOS; Art. 2, High Seas Convention, 1958, 450 UNTS 11.

9. See supra n. 6; Principle 2 of the Rio Declaration on Environment and Development, 1992 (for the documents adopted at UNCED see UN Doc. A/CONF. 151/26 (Vols. I-V), August 12, 1992); Principle21 of the Stockholm Declaration, 1972 (UN Doc. A/Conf.48/14/Rev. 1); Art. 192, UNCLOS; Generally on the duty of States to protect and preserve the environment, including the marine environment see: Birnie, and Boyle, , op. cit. n. 5, especially pp. 89–102 and at p. 358 on the recognition by States of an ‘obligation to minimize nuclear risk and to prevent injury to other states, or radioactive pollution of the global environment’; Kiss and Shelton, op. cit. n. 5, especially pp. 144–147.Google Scholar

10. See generally Mackerron, G. and Berkhout, F., ‘Nuclear Power and the Environment’, in P. Brackley. ed., World Guide to Environmental Issues and Organizations (1990) pp. 106–124.Google Scholar

11. Allot, P., ‘Mare Nostrum: A New International Law of the Sea’, 86 AJIL(1992)pp. 764–787.Google Scholar

12. Brunnée, J., ‘“Common Interests” – Echoes from an Empty Shell?’, 49 Zeitschrift fur Ausländisches Öffentliches Recht und Völkerrecht (1989) pp. 791–808Google Scholar; Kiss, A., ‘The Implications of Global Change for the International Legal System’, in E. Brown Weiss, ed., Environmental Change and International Law (1992) pp. 315–339, at pp. 331–339Google Scholar; Kiss, A., “The International Protection of the Environment’, in R.St.J. Macdonald and D.M. Johnston, eds., The Structure and Process of International Law (1986) pp. 1069–1093, especially pp. 1083–1087Google Scholar. For a critical view of this approach to international law see Weil, P., ‘Towards Relative Normativity in International Law?’, 77 AJIL (1983) pp. 413–442.CrossRefGoogle Scholar

13. Miles, E.L., Leeand, K.N.Carlin, E.M., Nuclear Waste Disposalunder the Seabed, Assessing the Policy Issues (1985) p. 5 and pp. 67–68.Google Scholar

14. Art. 18, London Convention 1972, provides that the Convention is open for accession by any State.

15. Art. 34, Vienna Convention on the Law of Treaties, 8 ILM (1969) p. 679Google Scholar. On this subject see: Schachter, O., International Law in Theory and Practice (1991) especially pp. 9–15.Google Scholar

16. O‘Connell, D.P., The International Law of the Sea, Shearer, I. A., ed., Vol. II (1984) pp. 792–830.Google Scholar

17. The term ’international environmental law’ is used in this article to refer to ‘the corpus of international law relevant to environmental issues’ and not ’to indicate the existance of a new discipline based exclusively on environmental perspectives and strategies’ (see Birnie, and Boyle, , op. cit. n. 5, p. 1).Google Scholar

18. Supra n. 9.

19. L. Henkin, ‘International Law: Politics, Values and Functions’, 216 Hague Recueil (1989-IV) pp. 13–416; Henkin, L., “The Mythology of Sovereignty’, AJIL Newsletter (March-May 1993) pp. 1 and 6–7Google Scholar; Lachs, M., “Thoughts on Science, Technology and World Law’, 86 AJIL (1992) pp. 673–699CrossRefGoogle Scholar; Schachter, O., ‘The Nature and Process of Legal Development in International Society’, in Macdonald and Johnston, eds., op. cit. n. 12, pp. 745–808.Google Scholar

20. Falk, R., “The Capacity of International Law to Respond to the Environmental Challenge’, Proceedings of the 1989 Meeting of the Canadian Council on International Law (1990) pp. 35–49Google Scholar; Freestone, D., The Road from Rio: International Environmental Law after the Earth Summit (inaugural lecture at the University of Hull) (1993) especially pp. 4–6Google Scholar; Handl, , loc. cit. n. 5, pp. 31–32Google Scholar; Palmer, G., ‘New Ways to Make International Environmental Law’, 86 AJIL (1992) pp. 259–283CrossRefGoogle Scholar; Singh, N., ‘Right to Environment and Sustainable Development as a Principle of International Law’, 29 Journal of the Indian Law Institute (1987) pp. 289–305Google Scholar; United Nations, Division for Ocean Affairs and the Law of the Sea/Office for Legal Affairs, The Regime of High Seas Fisheries: Status and Prospects (1992).

21. The terms low-level radioactive waste and high-level radioactive waste are used as defined by the International Atomic Energy Agency (IAEA) for purposes of the London Convention 1972. High-level radioactive waste includes irradiated reactor fuel, liquid wastes from the first solvent extraction cycle of chemical reprocessing of irradiated reactor fuel, or equivalent processes, solidified forms of such waste and any other waste or matter the activity of which exceeds specific values. For the full definition of high-level radioactive waste see: Annex 18 in IMO, The London Dumping Convention, The First Decade and Beyond (1991) p. 206. For purposes of the London Convention 1972, all other radioactive wastes are considered to be low-level.Google Scholar

22. Chan, C.Y., ‘Radioactive Waste Management: An International Perspective’, 34 IAEA Bulletin (1992) pp. 7–15, 10–11.Google Scholar

23. Semenov, B.A., ‘Disposal of Spent Fuel and High-Level Radioactive Waste: Building International Consensus’, 34 IAEA Bulletin (1992) pp. 2–6.Google Scholar

24. Mackerron, and Berkhout, , loc. cit. n. 10, p. 113Google Scholar; The First Decade and Beyond, op. cit. n. 21, p. 107.Google Scholar

25. Chan, loc. cit. n. 22.

26. From 1977 onwards these dumping activities took place under the Nuclear Energy Agency (NEA) of the Organization for Economic Cooperation and Development (OECD). The OECD/NEA ‘Multilateral Consultation and Surveillance Mechanism’ was the mechanism for coordinating the ocean dumping of radioactive waste of the OECD Member States. For an evaluation of this mechanism see: Miles, E.L., ‘Scientific and Technological Knowledge and International Cooperation in Resource Management’, in S. Andresen and W. Østreng, eds., International Resource Management (1989) pp. 46–87, pp. 72–79.Google Scholar For further information see: Calmet, D.P. and Bewers, J.M., ‘Radioactive Waste and Ocean Dumping, the Role of the IAEA’, 15 Marine Policy (1991) pp.413–430, 417–418CrossRefGoogle Scholar; Finn, D.P., ‘Ocean Disposal of Radioactive Wastes: The Obligation of International Cooperation to Protect and Preserve the Marine Environment’, 21 Virginia JIL (1981) pp. 621–690, 630–635.Google Scholar

27. Semenov, , loc. cit. n. 23, p. 3.Google Scholar

28. Chan, , loc. cit. n. 22, p. 11.Google Scholar

29. Calmet, and Bewers, , loc. cit. n. 26, p. 419Google Scholar.

30. Greenpeace International, Ocean Dumping of Radioactive Wastes in the USSR, Doc. LDC/IGPRAD/4/Inf. 5 (November 1991);Report ofthe Fifteenth ConsultativeMeeting of the London Convention 1972, Doc. LC 15/16 (1992) paras. 11.14–11.35. Also see the postscript, infra.

31. Calmet, and Bewers, , loc. cit. n. 26, p. 417.Google Scholar

32. Calmet, and Bewers, , loc. cit. n. 26, pp. 417–420Google Scholar; OECD/NEA, Feasibility of Disposal of High-Level Radioactive Waste into the Seabed, Vol. 1 (1988) especially pp. 60–61.Google Scholar

33. Report of the Twelfth ConsultativeMeeting of the London Convention 1972, Doc. LDC 12/16 (1989) para. 6.35.

34. Calmet, D. and Sjoblom, K.L., ‘Inventory of Radioactive Material Entering the Marine Environment’ 34 IAEA Bulletin (1992) pp. 24–28Google Scholar; Cormack, D., ‘Scientific and Technical Background’, 16 Marine Policy (1992) pp. 5–19, at p. 11CrossRefGoogle Scholar; Finn, , loc. cit. n. 26, pp. 635–644.Google Scholar

35. Calmet and Bewers, loc. cit. n. 26; IAEA, Comparison of Risks Associated with Sea Dumping of Low Level Radioactive Waste with Risks Associated with other Activities (1991) (Doc. LDC/IGPRAD 4/4); NEA, Feasibility of Disposal of High-Level Radioactive Waste into the Seabed, Vol. 1, Overview of Research and Conclusions, OECD/NEA (1988) especially pp. 60–61.Google Scholar

36. Greenpeace International, The Technical Case Against Radioactive Waste Dumping at Sea, prepared for the fifth session of the Intergovernmental Panel of Experts on Radioactive Waste Disposal at Sea (IGPRAD) of the LDC, 2–6 November 1992, Doc. LDC/IGPRAD 5/2/1 (1992). For differences of opinion on the effects of ocean dumping of radioactive waste among the experts of the Contracting Parties to die London Convention 1972 see: Final Report of the Inter-Governmental Panel of Experts on Radioactive Waste Disposal at Sea (Final IGPRAD Report), Annex 2 to the Report of the Sixth Meeting of the Inter-Governmental Panel of Experts on Radioactive Waste Disposal at Sea, DOC. LC/IGPRAD 6/5 (1993) para. 5.2.4.

37. Supra nn. 8 and 16.

38. ?Finn, , loc. cit. n. 26, pp. 662–663Google Scholar; Kaplan, R.A., ‘Into the Abyss: International Regulations of Subseabed Disposal’, 139 Univ. PennsylvaniaLR (1991) pp. 769–800, at pp. 784–786.Google Scholar

39. Eaker, L.H., ‘InternationalLegal and Political Considerations Concerning the Seabed Disposal of Nuclear Waste’, 31 Nuclear Law Bull. (1983) pp. 40–70, at p. 50.Google Scholar

40. Bewers, J.M., ‘Analyses of the Issues Related to Sea Dumping of Radioactive Wastes’, 11 Marine Policy (1987) pp. 105–124, at p. 108.CrossRefGoogle Scholar

41. O'Connell and Shearer, eds., op. cit. n. 16, pp. 57–58 on the concept of reasonable use.

42. See supra nn. 35 and 36; Curtis, C.E., ‘Legality of Seabed Disposal of High-Level Radioactive Wastes under the London Convention’, 14 Ocean Development and Int. Law (1985) pp. 383–415, at pp. 400–403Google Scholar; Finn, , loc. cit. n. 26, pp. 663–664 and 680Google Scholar; Kaplan, loc.cit. n. 38, pp.788–793

43. This is not to say that the concept of reasonable use in relation to the right of use to which other States are entitled is totally irrelevant. It is relevant. However, just as other general principles of international law such as abuse of rights and equity, it, in essence, refers to die need to balance interests, and as concluded by Birnie and Boyle, is not a principle of substantive environmental protection (Birnie, and Boyle, , op. cit. n. 5, pp. 124–127Google Scholar; O'Connell, , op. cit. n. 16).Google Scholar

44. See also Allot, loc. cit. n. 11.

45. See the text at supra n. 14.

46. Birnie, and Boyle, , op. cit. n. 5, pp. 102–107 and 117Google Scholar; Francioni, F., ‘International Cooperation for the Protection of the Environment: The Procedural Dimension’, in W. Lang, H. Neuhold and K. Zemanek, eds., Environmental Protection and International Law (1991) pp. 203–221Google Scholar; Kirgis, F. Jr, Prior Consultation in International Law (1983) especially pp. 168–174 and 364–366.Google Scholar

47. Lac Lanoux Arbitration, 24 ILR (1957) p. 101.Google Scholar In the Lac Lanoux arbitration it was decided that France had complied with its duty under international law to consult and negotiate in good faith with Spain prior to diverting a watercourse which it shared with Spain. France was to give reasonable consideration to Spain's interests, but it did not require Spain's consent in order to proceed with the diversion. See, however, L. Gündling who submits that the notion of prior informed consent is implied in the process of information exchange and consultation, ‘Prior Notification and Consultation’, in G. Handl and Lutz, R.E., eds., Transferring Hazardous Technologies and Substances (1989) pp. 63–82, at p. 65.Google Scholar

48. Art. 136, UNCLOS; UNGA Declaration of Principles on the Seabed Beyond National Jurisdiction, UNGA Res. 2749 (XXV) (1971).

49. Kiss, A., “The Common Heritage of Mankind: Utopia or Reality’, 40 Int. Journal (1985) pp. 423–440CrossRefGoogle Scholar; A. Pardo and C.Q. Christol, ‘The Common Interest: Tension Between the Whole and the Parts’, in Macdonald and Johnston, eds., op. cit. n. 12, pp. 643–659; J.-P. Quéneudec, “The Effects of Changes in the Law of the Sea on Legal Regimes Relating to the Disposal of Radioactive Waste in the Sea’, 1982, unpublished paper prepared for OECD/NEA, quoted in Eaker, loc. cit. n. 39, p. 54; Schachter, op. cit. n. 15, pp. 291–296; Wolfrum, R., “The Principle of the Common Heritage of Mankind’, 43 Zeitschriftfür Ausländisches und Öffentliches Recht und Völkerrecht(1983) pp. 312–337.Google Scholar

50. See section 3.2.2.2 infra on a soft law decision to this effect having been taken by the parties to the London Convention 1972 with respect to the sub-seabed disposal of high-level radioactive waste.

51. Brown, E.B., ’“NeitherNecessarynorPrudentatthisStage”, TheRegimeofSeabedMining and its Impact on the Universality of the UN Convention on the Law of the Sea’, 17 Marine Policy (1993) pp. 81–107.CrossRefGoogle Scholar

52. UNCLOS, in relation to the Area, only refers to the potential environmentally detrimental effects of deep sea mining activities (Art. 145 juncto Art. 1(3)). In respect of activities other than deep sea mining UNCLOS provides mat they ‘shall be conducted with reasonable regard for acti v ities [meaning mining activities] in the Area’ (Art. 147(3), UNCLOS). While some authors assert that the concept of the common heritage of mankind as such applies to the ocean disposal options (e.g., Mani, V.S., ‘Ocean Dumping of Radioactive Wastes: Law and Polities’, 24 Indian JIL (1984) pp. 224–244, at p. 243)Google Scholar; others assert that this is not the case (e.g., Eaker, loc. cit. 39, pp. 47–48). Most authors, however, do agree that if UNCLOS were to enter into force, at least, consultations with the International Seabed Authority would be required in order to legalize disposal of radioactive waste into the seabed. The reason therefore being that these activities might conflict widi possible seabed mining activities being undertaken in the same area (Eaker, loc. cit. n. 39, pp. 50–51, and p. 54; Kaplan, loc. cit. n. 38, p. 786; E. Lykke, “The Law of the Sea Convention and Disposal of Nuclear Waste’, in Koers, A.W. and Oxman, B.H., eds., The 1982 Convention on the Law of the Sea (1989) pp. 602–606Google Scholar; Miles et al., op. cit. n. 13, p. 92).

53. Supra n. 8.

54. Supra n. 6.

55. Art. 25(1), 1958 Convention on the High Seas.

56. Art. 25(2), 1958 Convention on the High Seas.

57. Although UNCLOS at the time of writing had not entered into force, its provisions on the protection of the marine environment are generally considered to have become part of customary international law. By November 1993, 59 States had ratified or acceded to UNCLOS; UNCLOS requires 60 ratifications or accessions in order to enter into force (Art. 308, UNCLOS). Also see: Birnie and Boyle, op. cit. n. 5, p. 255.

58. Art. 192, UNCLOS.

59. Art. 197, UNCLOS.

60. Art. l(5)(a), UNCLOS, defines dumping as:

‘(i) any deliberate disposal of wastes or other matter from vessels, aircraft platforms or other man-made structures at sea;

.(ii) any deliberate disposal of vessels, aircraft, platforms or other man-made structures at sea;’ For a comparison of this definition to the definition of dumping contained in the London Convention 1972, see infra n. 71.

61. Art. 210(1), UNCLOS.

62. Art. 210(4), UNCLOS.

63. Art. 210(6), UNCLOS.

64. Art. 216(1), UNCLOS.

65. Art. 210(5), UNCLOS.

66. Art. 210(4), UNCLOS, uses the following terms ‘shall endeavour to establish’, while Art. 211(1) uses the terms ‘shall establish’ when referring to the duty to cooperate with the aim of establishing international rules and standards to prevent pollution from vessels.

67. See also:Johnston, D.M., ‘Vulnerable Coastal and Marine Areas: A Framework for Planning of Environmental Security Zones in the Ocean’, 24 Ocean Development and Int. Law (1993) pp. 63–74, at p. 69.Google Scholar

68. For the text of the Convention see supra n. 2. For general information see: The First Decade and Beyond, op. cit. n. 21; Duncan, R.N., “The 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes at Sea’, 5 J. of Maritime L. & Comm. (1974) pp. 299–315Google Scholar; Kindt, J. Warren, ‘Ocean Dumping’, 13 Denver JIL & Policy (1984) pp. 335–377. In addition to the London Convention 1972 the IAEA is presently preparing a convention on nuclear safety and considering the preparation of a convention on radioactive waste.Google Scholar

69. Doc. LC 15/16, para. 2.1.

70. Doc. LC 15/16, para. 5.

71. Art. 3(2)(a), London Convention 1972, defines dumping as:

‘i. any deliberate disposal at Sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea;

ii. any deliberate disposal at sea of vessels, aircraft, platforms or other man-made structures at sea.’

72. Art. 4, London Convention 1972.

73. See infra section 3.2.2.1.

74. The debate concentrates on three issues. Firstly, the meaning of the first ‘at sea’ used in the definition of Art. 3(l)(a) of the London Convention 1972. Secondly, on the relationship between this first ‘at sea’ and the second ‘at sea’ in this same article. Thirdly, on the compatibility of seabed disposal with the object and purpose of the London Convention 1972 contained in Art. 1 and especially the following phrase of that article:

‘Contracting Parties shall individually and collectively promote the effective control of all sources of pollution of the marine environment…’

For information on the discussion on the meaning of this provision see: Report of the Eight Consultative Meeting, Doc. LDC 8/10 (1984)para. 5.2; The Dumping of Radioactive Waste at Sea, Report of the Ad Hoc Group of Legal Experts on Dumping, Doc. LDC 8/5/3 (1983); Report of the Thirteenth Consultative Meeting, Doc. LDC 13/15 (1990) paras. 6.40–6.55; Curtis, loc. cit. n. 42, pp. 392–398; Eaker, loc. cit. n. 39, pp. 41–44; Mani, loc. cit. n. 52, pp. 242–243; Welsch, H., ‘The London Dumping Convention and Sub-Seabed Disposal of Radioactive Waste’, 28 GYIL (1985) pp. 322–354.Google Scholar

75. Doc. LDC 8/10, para. 5.2.38.

76. Report of the Twelfth Consultative Meeting, Doc. LDC 12/16 (1989) paras. 6.50 and 6.57; and Doc. LDC 13/15, para. 6.46.

77. Doc. LDC 13/15, para. 6.40.

78. Annex 3, Doc. LC 15/16.

79. The First Decade and Beyond, op. cit. n. 21, p. 104.

80. Res. LDC 14(7), in Annex 3, Report of the Seventh Consultative Meeting, Doc. LDC 7/12 (1983). This Resolution was adopted by 19 votes in favour, 6 against, with 5 abstentions (Doc. LDC 7/12, para. 7.34).

81. Report of the Intercessional Activities Relating to the Disposal of Radioactive Waste at Sea, Final Report of the Scientific Review, Doc. LDC 9/4 (1985).

82. The First Decade and Beyond, op. cit. n. 21, p. 105.

83. Res. LDC 21(9), in Annex 4, Report of the Ninth Consultative Meeting, Doc. LDC 9/12 (1985). This Resolution was adopted by 25 votes in favour, 6 against, with 7 abstentions. For an overview of the opinions of Contracting Parties on this resolution see Annex 5, Doc. LDC 9/12.

84. Res. LDC 28(10), Annex 11, Report of the Tenth Consultative Meeting, Doc. LDC 10/15 (1985). For an overview of the opinions of Contracting Parties on this Resolution see Annex 12, Doc. LDC 10/15.

85. Doc. LC 15/16, para. 11.1.

86. Final IGPRAD Report, Doc. LC/IGPRAD 6/5, especially para. 6 and Annex 9.

87. Para. 1, Res. LDC 21(9).

88. Doc. LC 15/16, para. 5.20.

89. It can be argued that if the participants at UNCED had no preference as to the legal character of the ban to be adopted the word ‘voluntary’ in the quoted paragraph should have been omitted. However, the argument can also be made that if they wished a legally binding ban to be adopted die terms ‘legally binding’ should have been inserted prior to the word ‘ban’.

90. Annex 3, Doc. LC 15/16, Procedure for die Priority Consideration of Amendments to the Convention.

91. Infra n. 120.

92. Art. 3, Annex II, 1992 Paris Convention.

93. Doc. LC 15/16, paras. 5.8,11.2 and Final IGPRAD Report, Doc. LC/IGPRAD 6/5, option 6 in Annex 9 to the Report.

94. Appendix to Annex 3, Doc. LC 15/16, which contains a second list of issues which might be considered in the revision process. Creating possibilities for taking binding decisions by the Consultative Meeting is one of the issues listed.

95. Supra n. 30.

96. Supra nn. 83 and 84.

97. Chinkin, C.M., ‘The Challenge of Soft Law: Development and Change in International Law’, 38 ICLQ (1989) pp. 850–866, at pp. 856–858.CrossRefGoogle Scholar

98. Para. D, Annex II, London Convention 1972.

99. Annex II, London Convention 1972.

100. Para. C, Annex III, London Convention 1972.

101. Annex 18, Ten Years and Beyond, op. cit. n. 21, p. 206.

102. Ibid., p. 102.

103. Ibid., pp. 102–104.

104. Guidelines for the Implementation and Uniform Interpretation of Annex III (Res. LDC 32(11), Annex 4, Report of the Eleventh Consultative Meeting, Doc. LDC 11/14 (1988)).

105. See the words ‘should take full account of the recommendations’ of the IAEA (para. D, Annex II, London Convention 1972).

106. See the words ‘taking into account’ (Annex III). (See Finn, loc. cit. n. 26, p. 665). However, Art. 6(3) provides that ‘(I)n issuing permits … the appropriate authority or authorities shall comply with Annex III’ (emphasis added).

107. Art. 4(4), London Convention 1972.

108. Doc. LC 15/16, paras. 6.11–6.14 and Annex 4.

109. Doc. LC 15/16, paras. 6.6–6.8.

110. Reverse listing means that the former black/pgrey list approach, as contained in Annexes I and II of the London Convention 1972, would be abolished. This system lists those substances which may not be dumped (Annex I) as well as those which may be dumped subject to certain conditions (Annex II) and allows other substances to be dumped at sea, subject to a general permit. In the case of reverse listing only those substances which are expressly listed may be dumped.

111. DocLC 15/16, para. 6.12.

112. Doc. LC 15/16, paras. 6.7. and 6.9.

113. See supra n. 2.

114. Doc. LDC 8/10, para. 5.2.38.

115. See text at supra n. 49.

116. Para. 2, Res. LDC 41(13), in Annex 7, Doc. LDC 13/15. The Resolution was adopted by 29 votes in favour, 4 against, with 4 abstentions (Doc. LDC 13/15, para. 6.48).

117. For the views of Contracting Parties see: Doc. LDC 13/15, paras. 6.50–6.55.

118. Art. 7, Raratonga Treaty, 24 ILM (1985) p. 1440.Google Scholar

119. Art. 10, Noumea Convention, 26 ILM (1987) p. 38.Google Scholar

120. For the text of the Paris Convention see 8 Int. Marine, J. & Coastal, L. (1993) pp. 50–76Google Scholar; for an analysis see: E. Hey, T. Ulstra and A. Nollkaemper, “The 1992 Paris Convention for the Protection of the Marine Environment of the North-East Atlantic: A Critical Analysis’, in the same journal, pp. 1–49, especially pp. 26–29 on radioactive substances. The 1992 Paris Convention was adopted on September 22, 1992 and has not entered into force. When it does enter into force it will replace the Convention for the Preventionof Marine Pollution by Dumping from Ships and Aircraft, 1972 (Oslo Convention) and the Convention on the Prevention of Marine Pollution from Land-Based Sources, 1974 (1974 Paris Convention) (for the text of both conventions see Freestone, D. and lJlstia, T., eds., The North Sea:Basic Legal Documents on Regional Environmental Co-operation(1991) at respectively pp. 91 and 128). The Oslo Convention does not contain regulations on the disposal of radioactive waste at sea. The Oslo Commission has always been of the opinion that such matters were better dealt with at the multilateral level, within the London Convention 1972.Google Scholar

121. Note that the prohibition on dumping and sub-seabed disposal in the Paris Convention does not include the deliberate disposal of radioactive waste under the seabed accessible from land. This is considered to be a land-based source of marine pollution (cf., Art. 1 (e) and (f), 1992 Paris Convention).

122. Art. 3, Annex II, 1992 Paris Convention.

123. Art. 2, Protocol to the Conventionof the South-East Pacific Against Radioactive Pollution, September 21, 1989, reproduced as Doc. LDC 13/Inf. 4.

124. Art. 9 of the Convention on the Protection of the Marine Environment of the Baltic Sea Area, March 22, 1974 (1974 Helsinki Convention) prohibits the dumping of all wastes and other matter, except dredged materials. In addition, die definition of dumping contained in Art. 2(3) implicitly covers the deliberate disposal of waste and other matter into the seabed from vessels, aircraft, platforms or other man-made structures at sea. When it enters into force, the Convention on the Protection of die Marine Environment of die Baltic Sea Area, April 9, 1992 (1992 Helsinki Convention) will replace die 1974 Helsinki Convention. Art. 11 of die 1992 Helsinki Convention also prohibits die dumping of all wastes and other matter, except dredged materials. Moreover, die definitionof dumping in Art. 2(4) explicitly includes die deliberate disposal into die seabed of wastes or other matter from ships, odier man-made structures at sea or by aircraft. It does not, however, include the placement of waste into die seabed in repositories accessible from land. Such disposal is considered to be a land-based source of marine pollution (Art. 2(2), 1992 Helsinki Convention). For die text of die 1974 Helsinki Convention see: Fitzmaurice, M., International Legal Problems of the Environmental Protection of the Baltic Sea (1992) p. 231Google Scholar; for the text of die 1992 Helsinki Convention see: Conference Doc. 4 of die Diplomatic Conference on die Protection of die Marine Environment of die Baltic Sea Area, Helsinki, April 9, 1992.

125. Art. 4 and Annex I, para. 7 of die Protocol for die Prevention of Pollution of die Mediterranean Sea by Dumping from Ships and Aircraft to die Convention for the Protection of die Mediterranean Sea against Pollution, February 16, 1976. For die text of the Protocol and Convention see: Sand, P.H., Marine Environmental Law in the United Nations Environment Programme (1988) p. 1.Google Scholar

126. Art. 4(2) and Annex I, Bamako Convention, January 29, 1991, 30 ILM (1991) p. 773.

127. Arts. 210 and 216, UNCLOS. In this context the question arises whedier States are free to use their territorial sea, exclusive economic zone or continental shelf for the disposal of radioactive waste. Although treatment of this subject goes beyond die scope of diis article, I suggest mat also in diis case international control would be required because of the possible negative consequences of such activities beyond die areas in which a State exercises jurisdiction. Except for die applicable legal regime, mere is in fact no difference between die undertaking of die ocean disposal options in areas widiin coastal State jurisdiction or in die high seas or die Area. In mis case die tension between State sovereignty and sovereign rights, on die one hand, and die common interests of humankind, on die odier, arise even more forcefully, however. The London Convention 1972 applies, in addition to high seas areas, to die territorial sea, exclusive economic zone and continental shelf of Contracting Parties (Art. 7(1) and me agreed interpretation after the adoption of UNCLOS, reflected in The First Decade and Beyond, op. cit. n. 21, p. 121).

128. Art. 1(a), 1992 Paris Convention.

129. Art. 10(l)(a), Annex II, 1992 Paris Convention.

130. The States Parties to the Protocol for the Protection of the South-East Pacific Against Radioactive Pollution are in fact legally bound to refrain from all ocean dumping and sub-seabed disposal of radioactive waste in all ocean areas (Art. 3 of the Protocol).

131. For a similar argument made with respect to the legal significance of UN General Assembly Resolutions see Schachter, op. cit. n. 15, pp. 92–93.

132. Art. 3(3)(b), Annex II, 1992 Paris Convention.

133. Art. 3(3)(c), Annex II, 1992 Paris Convention.

134. The exception to the moratorium can only be discontinued by a unanimous vote of the Commission (Art. 3(3)(c), Annex II, 1992 Paris Convention), while the extension of the suspension for France and the UK beyond the year 2008, is subject to a Decision of the Commission. Decisions of the Commission are binding only for those Contracting Parties which have not opted-out of the Decision(Art. 3(3)(c), Annex II and Art. 13,1992 Convention). France and the UK thus, after 2008, cannot be legally bound to refrain from the dumping of low-level radioactive waste without their consent.

135. Art. 2(ii), Noumea Convention.

136. B. Kwiatkowska, ‘Creeping Jurisdiction Beyond 200 Miles in Light of the 1982 Law of the Sea Convention and State Practice’, 22 Ocean Development and Int. Law (1991) pp. 153–187.

137. In the Bering Sea a high seas enclave exists which is surrounded by the exclusive economic zones of Russia and the United States which seek to regulate fishing in the area. For further information see: Kwiatkowska, loc. cit. n. 136, p. 170 and Mirovitskaya, N.S. and Haney, J.C., ‘Fisheries Exploitation as a Threat to Environmental Security, The North Pacific Ocean’, 16 Marine Policy (1992) pp. 243–258.CrossRefGoogle Scholar In addition, the Treaty on Fisheries between the Governments of Certain Pacific Island States and the United States contains an implicit recognition of some degree of coastal State jurisdiction over tuna in high seas enclaves this Treaty was signed on April 2, 1987 and entered into force on June 15, 1988; for the text of the Treaty see 26 ILM (1987) p. 1053; for further information see N. Slade, “The Forum Fisheries Agency and the Next Decade: The Legal Aspects’, in R. Herr, ed., The Forum Fisheries Agency, Achievements, Challenges and Prospects (1990). The question of the extension of coastal State jurisdiction in high seas enclaves is intimately related to the question of coastal State jurisdiction over stocks straddling beyond the boundary of the exclusive economic zone into high seas areas. For further information on this topic see: Joyner, C.C. and Cola, P.N., ‘Chile's Presential Sea Proposal: Implications for Straddling Stocks and the International Law of Fisheries’,24 Ocean Development and Int. Law (1993) pp. 99–121Google Scholar;Vicuña, F. Orrego, ‘Towards an Effective Management of High Sea Fisheries and the Settlement of the Pending Issues of the Law of the Sea’, 24 Ocean Development and Int. Law (1993) pp. 81–92Google Scholar and the responseby Thomas A. ClinganJr., ‘Mar Presencial (The Presential Sea): Deja Vu All Over Again? – A Response to Francisco Orrego Vicuna’, in the same journal at pp. 93–97; United Nations, Division for Ocean Affairs and the Law of the Sea/Office for Legal Affairs, The Regime of High Seas Fisheries: Status and Prospects (1992).

138. FAO, Report of the Technical Consultation on High Seas Fishing, Fisheries Report No. 484 (1992); Para. C of Chapter 17, Agenda 21; Declaration of Cancun, May 6–8, 1992, paras. 11, 12 and III, reprinted in FAO, Papers presented at the Technical Consultation on High Sea Fishing, Fisheries Report No. 484 Supplement (1992) pp. 70–73; United Nations Conference on Straddling Fish Stocks and Highly Migratory Species, New York, 12–30 July 1993,Negotiating Text, Prepared by the Chairman of the Conference, Dr. Nandan, Doc. A/Conf./164/13 (1993).

139. Art. 63(2), UNCLOS.

140. Dupuy, loc. cit. n. 5, pp. 428–431.

141. Although repetition is seen as an important element towards enhancing the effectiveness of soft law, repetition does not per definition transfer soft law into hard law. On this point see: Chinkin, loc. cit. n. 97, pp. 856–858; Dupuy, loc. cit. n. 5, pp. 424–428.

142. Dupuy, loc. cit. n. 5, especially p. 434.

143. On the development of customary international law see: Bothe, M., ‘Legal and Non-Legal Norms – A Meaningful Distinction in International Relations?’, 11 NYIL(1980) pp. 65–95, at pp. 86–89CrossRefGoogle Scholar; Chinkin, loc. cit. n. 97, pp. 856–858; Dupuy, loc. cit. n. 5, pp. 431–435; Sik, Ko Swan, De Verplichting in net Volkenrecht (Inaugural Lecture at the Erasmus University Rotterdam) (1991) p. 12.Google Scholar

144. Our Common Future, op. cit. n. 6, p. 43.

145. Our Common Future, op. cit. n. 6, pp. 43–46.It is a subject of debate whether the notion of sustainable development indeed implies enough of a change in present production, consumption and development patterns to reverse the situation of environmental degradation. This is because economic growth is concomitant with the notion of sustainabledevelopmentas defined by the WCED and it can be questioned whether economic growth is not one of the (if not the) major source of environmental degradation. See also: Elder, P.S., ‘Sustainability’,36 McGill LJ (1991)pp. 831–852, especially pp. 832–838Google Scholar; Gundling, L., ‘Our Responsibility to Future Generations’, 84 AJIL (1990) pp. 207–212, at p. 211.CrossRefGoogle Scholar

146. Weiss, E. Brown, In Fairness to Future Generations: InternationalLaw, Common Patrimony and Intergenerational Equity (1989). 147Google Scholar

147. Birnie and Boyle, op. cit. n. 5, pp. 3–6; Handl, loc. cit. n. 5, pp. 24–28.

148. Handle, loc. cit. n. 5, p. 25.

149. Handl suggests that ‘before long the concept might turn into a mandatory standard of international legal evaluation, a peremptory norm of international law’ (loc. cit. n. 5, p. 25).

150. ‘Even the narrow notion of physical sustainability implies a concern for social equity between generations, a concern that must logically be extended to equity within each generation’ (Our Common Future, op. cit. n. 6, p. 43); Final Report of the Expert Group on Environmental Law on Legal Principles for Environmental Protection and Sustainable Development (1987) p. 42, Art. 2 of which provides that ‘States shall ensure that the environment and natural resources are conserved and used for the benefit of present and future generations’. Inter-generational equity has been referred to by Handl as the ‘conceptual or philosophical underpinning’ of the principle of sustainable development (Handl, loc. cit. n. 5, p. 27). Also see Bernie and Boyle, op. cit. n. 5, pp. 211–212; Brown Weiss, op. cit. n. 146, p. 39.

151. Weiss, E. Brown, ‘Our Rights and Obligations to Future Generations for the Environment’, 84 AJIL (1990) pp. 198–207, at p. 201CrossRefGoogle Scholar; Brown Weiss, op. cit. n. 146, pp. 13–15.

152. Brown Weiss, op. cit. n. 146, pp. 38–45.

153. Ibid., p. 38.

154. Idem.

155. Idem.

156. E. Brown Weiss, ‘Intergenerational Equity: A Legal Framework for Global Environmental Change’, in Brown Weiss, op. cit. n. 12, pp. 385–412, at p. 401.

157. Brown Weiss, loc. cit. n. 151, p. 202.

158. Also see Brown Weiss, op. cit. n. 146, pp. 169–191.

159. Lykke, loc. cit. n. 52, p. 605; Mani, loc. cit. n. 52.

160. On the question of intergenerational equity and risk see Brown Weiss, op. cit. n. 146, pp. 67–69 and at p. 173 on the incentives for this generation to overstate the level of risk that it is willing to assume in relation to radioactive waste disposal. Also see Berkovitz, D.M., ‘Pariahs and Prophets: Nuclear Energy, Global Warning and Intergenerational Justice’ 17 Columbia J. Env. L. (1992) pp. 245–325.Google Scholar

161. See also Gündling, loc. cit. n. 47, pp. 64–65 who convincingly argues against the equity of selling harmful products to other, especially developing, countries while such products are banned in the State of origin and submits that in case such products are transferred the notion of prior informed consent should be applied.

162. Kemp, R., The Politics of Radioactive Waste Disposal (1992).Google Scholar

163. Berkovitz, loc. cit. n. 160, pp. 305–306; Brown Weiss, op. cit. n. 146, p. 174; Handl, G., ‘Managing Nuclear Waste: the International Connection’ 21 Natural Resources J. (1981)pp. 267–314, at pp. 275–276;Google Scholar

164. See, e.g., the statement to this effect by the Environmental Protection Agency in Criteria for Radioactive Waste, Proposed Criterion No. 4, 43 Federal Regulation 53262 (1978), quoted in Handl, loc. cit. n. 163, pp. 276–177.

165. Principle 15 of the Rio Declaration reads as follows:

‘In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effectivemeasures to prevent environmental degradation.’

166. Para. 17.23 (a), Agenda 21, provides that:

‘… It is necessary to:

(a) Appy preventive, precautionary and anticipatory approaches so as to avoid degradation of the marine environment, as well as to reduce the risk of long-term or irreversible adverse effects upon it.’

167. Customary international law includes the duty to take prevention and can be traced back to the Trail Smelter arbitration, 33 AJIL (1939) p. 182 and 35 AJIL (1941) p. 684. See also Birnie and Boyle, op. cit. n. 5, pp. 95–98 and 304; Handl, loc. cit. n. 5, pp. 20–24.

168. Gundling, L., ‘The Status in lnternational Law of the Principle of the Precautionary Action’, in Freestone, D. and IJlstra, T., eds., Special Issue ofthe International Journal ofEstuarine and Coastal Law (1990) pp. 23–30, p. 26.CrossRefGoogle Scholar

169. See the report of the discussion among the Contracting Parties to the London Convention 1972 on the issue of the precautionary concept: Doc. LDC 14/16, para. 4, pp. 11–13. Some commentators submit that the precautionary concept implies a reversal of the burden of proof and requires fundamental changes in international environmental policy and law (Stairs, K.C. and Johnston, P.A., “The Precautionary Action Approach to Environmental Protection‘, in Nath, B. and Robinson, J.P., eds., Proceedings of International Conference on Environmental Pollution (1991) pp. 473–479, at p. 475)Google Scholar; while others suggest mat it has been part of international environmental policy and law for a long time (Nollkaemper, A., ’The Precautionary Principle in International Environmental Law: What's New Under the Sun?’, 22 Marine Pollution Bull. (1991) pp. 107–110.) See also Freestone, op. cit. n. 20, pp. 22–29.CrossRefGoogle Scholar

170. Freestone, D., ‘The Precautionary Principle’, in Churchill, R.R. and Freestone, D., eds., International Law and Global Climate Change (1991) pp. 21–39Google Scholar; on the 1992 Paris Convention and the precautionary concept see: Hey etal., loc. cit. n. 120, pp. 10–13.

171. Res.LDC.44(14), TheApplicationofaPrecautionaryApproachinEnvironmentalProtection within the Framework of the London Dumping Convention, Annex 2, Doc. LDC 14/16. The operative parts of the Resolution read as follows:

‘THE FOURTEENTH CONSULTATIVE MEETING, …

1 AGREES that in implementing the London Dumping Convention the Contracting Parties shall be guided by a precautionary approach to environmental protection whereby appropriate preventive measures are taken when there is reason to believe that substances or energy introduced in the marine environment are likely to cause harm even when there is no conclusive evidence to prove a causal relation between inputs and their effects;

2 AGREES FURTHER that Contracting Parties shall take all necessary steps to ensure the effective implementation of the precautionary approach to environmental protection and to this end they shall;

(a) encourage prevention of pollution at the source, by the application of clean production methods, including raw materials selection, product substitution and clean production technologies and processes and waste minimization throughout society;

(b) evaluate the environmental and economic consequences of alternative methods of waste management, including long-term consequences;

(c) encourage and use as fully as possible scientific and socio-economic research in order to achieve an improved understanding on which to base long-term policy options;

(d) endeavour to reduce risk and scientific uncertainty relating to proposed disposal operations; and

(e) continue to take measures to ensure that potential adverse impacts of any dumping are minimized, and that adequate monitoring is provided for early detection and mitigation of these impacts;’

For further information see: Miller, B. Thorne, “The LDC, the Precautionary Approach, and the Assessment of Wastes for Sea Disposal’, 24 Marine Pollution Bull. (1992) pp. 335–339.CrossRefGoogle Scholar

172. Hey, E., “The Precautionary Concept in International Environmental Policy and Law: Institutionalizing Caution’, 4 Georgetown Int. Env. LR (1992) pp. 257–478.Google Scholar

173. Para. 17.22, Agenda 21; Hey, loc. cit. n. 172, p. 311; Nollkaemper, loc. cit. n. 169, p. 109.

174. Para. 17.31(b)(ii), Agenda 21.

175. Res. LC. 47(15), Annex 5 to LC 15/16, prohibits the incineration at sea of noxious liquid wastes as of 31 December 1992. It was proposed to include incineration of solid noxious waste in the resolution, but the issue was left for later consideration. It is at present unclear to what extent incineration of noxious solid waste at sea takes place.

176. OSCOM Decision 90/2, June 23, 1990, reprinted in Freestone and IJlstra, eds., op. cit. n. 120, p. 126.

177. NotetoOSCOM Decision90/2. “This Decision takes into account concerns expressed about potential implications of incineration at sea, but is not based on evidence that harmful effects have been observed. The Decision is based on the fact that Contraction Parties are in the process of developing methods for the reduction of wastes which result from production processes and that Contracting Parties have developed, or intend to develop, land-based alternatives for recycling and destruction. In most cases of avoidance and recycling, land-based treatment may be cheaper than incineration at sea.’

178. Art. 2, Annex II, 1992 Paris Convention.

179. OSCOM Decision 89/1, June 14, 1989 reproduced in Freestone and IJlstra, eds., op. cit. n. 120, p. 119.

180. Res. LDC. 43(13), Phasing Out of Sea Disposal of Industrial Waste, Annex 9, Doc. LDC 13/15.

181. Annex 3, Doc. LC 15/16.

182. Art. 3, Annex II, 1992 Paris Convention.

183. See infra section 4.3.

184. See Annex I and Appendices 1 and 2 of the 1992 Paris Convention as well as PARCOM Recommendation 89/1, June 22, 1989, on the Principle of Precautionary Action; PARCOM Recommendation 89/2, June 22,1989, on the Use of the Best Available Technology; and PARCOM Recommendations 90/1 and 90/2, June 14, 1990, on, respectively, the Definition of the Best Available Technology for Secondary Iron and Steel Plants and on Reporting on Progress in Applying the Best Available Technology on RadioactiveDischarges from Nuclear Plants. The above-mentioned PARCOM Recommendations are reprinted in Freestone and IJlstra, eds., op. cit. n. 120, at respectively pp. 152, 153, 156, and 157.

185. Para. 4, PARCOM Decision 88/1, June 17,1988, on the Use of Oil Based Muds, reprinted in Freestone and Ulstra, eds., op. cit. n. 120, p. 373.

186. Winter, G., ‘Perspectives for Environmental Law Entering the Fourth Phase’, 1 J.Env.L. (1989) pp. 42–47.Google Scholar

187. This conclusion illustrates that the theory of intergenerational equity and the concept of the common heritage of mankind have similar objectives. See text at n. 49 supra.

188. On the notion of prior informed consent see: Birnie and Boyle, op. cit. n. 5, pp. 336–338; Handl, G., ‘Environmental Protection and Development in Third World Countries: Common Destiny – Common Responsibility’, 20 Int. Law & Pol. (1988) pp. 603–627, at pp. 616–619.Google Scholar

189. Art. 6, Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 28 ILM (1989) p. 657.

190. Art. 6, Bamako Convention.

191. Also see Boyle, A., ‘Saving the World? Implementation and Enforcement of International Environmental Law through International Institutions’, 3 J. Env. L. (1991) pp. 229–245.Google Scholar

192. OSCOM Decision 89/1.

193. Para. 1, OSCOM Decision 89/1.

194. Justification for the Issue of Permits for the Dumping of Industrial Wastes at Sea, 1989, reproduced in Freestone and IJlstra, eds., op. cit. n. 120, p. 121.

195. See supra section 3.2.3 on the 1992 Paris Convention.

196. Brown Weiss, op. cit. n. 146, p. 173.

197. Annex III, Report of the Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, Doc. UNEP/Ozl.Pro.2/3, June 1990, reproduced in 1 Y. Int. Env. L. (1990) p. 591.

198. Brown Weiss, op. cit. n. 146, pp. 124–126.

199. Chinkin, loc. cit. n. 97, pp. 851–852; Dupuy, loc. cit. n. 5, pp. 428–431.

200. On the relationship between soft law and technological developments see: Dupuy, loc. cit. n. 5, p. 421; Lachs, loc. cit. n. 19, p. 694.

201. For the amendment procedures under the London Convention 1972 see Art. 15.

202. See Chinkin, loc. cit. n. 97, pp. 862–863 on the suitability of soft law for non-judicial means of dispute settlement or dispute avoidance mechanisms.

203. NRC Handelsblad (October 18, 1993).