Critical Analysis Of International Legal Regime Governing The Transport Of Radioactive Materials
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Category: General Law
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CRITICAL
ANALYSIS
OF INTERNATIONAL LEGAL REGIME GOVERNING THE TRANSPORT OF RADIOACTIVE MATERIALS Dr. Ramandeep Singh Sidhu, Principal, Bathinda College of Law, Visiting Assistant Professor of Law at Central University of Punjab (Bathinda, Punjab)
ABSTRACT
Radioactive materials consist of chemical, radiological and physical traits which are especially hazardous to the environment and human health. Though, commercial, medical and industrial benefits cannot be ignored. Implementing the correct balance of the beneficial uses of radioactive material, the resultant positive impacts on society, and the inherent dangers of using this material is a constantly evolving process that is played out in individual communities, regions, and countries around the world. This paper analyses how radioactive materials are governed under the international legal regime and prime focus of the paper is transportation of the radioactive materials and what are the risks are associated with the transportation.
Though there are abundance of research is available on the topic but transportation of radioactive through legal lenses is very less discussed in the literature. This paper analyses the IAEA regulation transportation under various modes. Keywords: Radioactive Materials, IAEA, transportation, law of sea, UNCLOS and ECOSOC Committee.
I.
Introduction
Radioactive materials consist of chemical, radiological and physical traits which are especially hazardous to the environment and human health. Though, commercial, medical and industrial benefits cannot be ignored. Implementing the correct balance of the beneficial uses of radioactive material, the resultant positive impacts on society, and the inherent dangers of using this material is a constantly evolving process that is played out in individual communities, regions, and countries around the world. It is also a process that is being played out between the public, industry, regulator, and international oversight organizations, such as the International Atomic Energy Agency. 1 After the 1950s the use of radioactive materials has been keep on increasing and also international legal regime has been developed throughout this period.
Number of aspects are dealt in international agreements regarding the safety, packaging, transport and so on. This paper analyses what are the modes of transport of radioactive materials? What international agreements are governing the transport of radioactive materials. The paper will not analyse the national laws regarding the transport of radioactive materials.
There are various international conventions which regulates the use of radioactive materials such as Convention on the Liability of Operators of Nuclear Ships, 1962,2 United Nations Convention International Multimodal Transport of Goods, 1980 under article 26 contains special rules governing the dangerous goods, 3 Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency4, Convention on Civil Liability For Damage Caused During Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels - UNECE/ITC New York 1990, Basel Convention, 1989,5 Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, 19976 and so on. These conventions though have specific mention about the radioactive materials but the transport convention has not specially drafted.
Majority pf the International conventions related to radioactive and nuclear materials deal with the waste management but no specific rules have been enacted for safe transport. This paper explores the international regime governing transport of radioactive materials. Part I of the Paper provides the introductory remarks containing mention of radioactive materials
1 KEN B SORENSON, SAFE AND SECURE TRANSPORT AND STORAGE OF RADIOACTIVE
MATERIALS 1 (Woodhead Publishing Co. 2015).
2 Adopted on 25 May 1962.
3 United Nations Convention on International Multimodal Transport of Goods, 1980
4 Adopted on 26 September 1986.
5 Adopted on 22 March 1989.
6 Adopted on 5 September 1997.
and its definition. Part II of the paper defines radioactive material according to IAEA safety standard regulations and Radioactive Substance Act, 1993 United Kingdom. Part III of the paper deals with the principles and regulations charting the historical background by the ECOSOC Committee of experts and International Atomic Energy, its philosophy and safety standards settled in cooperation with other organizations such as International Maritime Organization, International Civil Aviation Organization and so on. Part IV of the paper provides an insight into modes of transport such as by sea, by air, by Postal and their regulation under specific international legal instruments. Part V concludes the paper on the basis of above held discussion. II.
Definition of Radioactive Materials Radioactive material has been defined in Section 1(1) of the 1993 Act7 means which is not waste and it includes following: a. “A substance to which the sub-section applies” and b. An article which consists of wholly or partly from or incorporating , such a substance. Section 1 (2) provides that sub-section (1) applies to two descriptions of substances : a. “substance containing specified elements, listed in table 1, such that the number of becquerels of the element divided by the weight of the substance in the grams is greater than the specified number; these number vary depending on whether the substance is in solid or gaseous form” and b.
Substances possessing radioactivity which is wholly or partly attributable to a process nuclear fission or other process subjecting a substance to bombardment by neutrons or ionising radiations, not being a process occurring in the course of nature, or in consequence of disposal of radioactive waste or by way of contamination (in which case the material would probably be radioactive waste under section 2)”. 8 There are eight elements which have been mentioned in schedule 1 of the Act which express in becquerels per gram (Bq/g) for gas, liquid and solid or vapour. These substances are as follows: actinium, lead, polonium, protoactinium, radium, radon (element for gas only) thorium and uranium.
7 The Radioactive Substances Act, 1993, section 1.
8 The Radioactive Substances Act, 1993.
Para 236 of IAEA regulations 2018 (edition) provides “Radioactive material shall mean any material containing radionuclides where both the activity concentration and the total activity in the consignment exceed the values specified in paras 402–407”9 III.
Safety of Transport under international legal regime: Role of ECOSOC Committee of Experts and IAEA There are legally and non-legally binding international instruments concerning the safe transport of radioactive materials for the first time were considered in 1997 in the General Conference of IAEA after the acceptance of the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management. 10 0n 3rd October 1997, IAEA in its general Conference requested the Secretariat “to prepare, for consideration at the June 1998 session of the Board of Governors, a report on legally and non-legally binding international instruments and regulations related to safe transport of radioactive materials and their implementation”. As per the direction report was prepared for the categorization of binding and non binding instruments and their implementation.
11 The historical background can be traced back to Regulations in United Kingdom of 1776 which was dealing with transportation of dangerous good such as gunpowder. But these efforts were not available under international legal regime until World War II and then the need for harmonization of transport of dangerous goods was felt first time under international regime. The ECOSOC Committee of Experts and Recommendations of United Nations The United Nations, on 15 April 1953 established a committee of Experts by the Economic and Social Council to develop a “universal system of recommendations on the transport of dangerous goods that would reduce both risks and costs in the expanding international trade and traffic in dangerous goods and could also be adopted for domestic purposes”.
The ECOSOC established the “committee of Experts on the Transport of Dangerous Goods” on the following terms: i. Define and recommend the classification of goods on the basis of nature of risk involved; 9 The IAEA, Regulations for the safe Transport of Radioactive Material, 2018( edition) available at: https://wwwpub. iaea. org/MTCD/Publications/PDF/PUB1798_web. pdf
10 Adopted on 5 September 1997, came into force on 18 June 2001.
11 Safety of Transport of radioactive materials, GOV/1998/17, 30 April 1998. Available at: https://wwwns. iaea. org/downloads/rw/radiation-safety/gov98_17. pdf ii. Enlist the principal dangerous goods moved for commercial purposes and assign a particular classification iii. Suggest labels or marks for each classification that would assist in identifying in risk graphically without iv. Recommendations for the simplest possible requirements for shipping papers. 12 Later these terms were extended to include other associated works related to radioactive materials such as packaging, tanks, handling, storage and fire prevention and training. These recommendations were upto the international bodies to what extent these will be enforced under the legal force. The first meeting of the committee took place in August 1954 and very fair comprehensive classification system was built since inception.
First recommendations of the committee were published in October 1956 and were adopted by the ECOSOC IN April 1957. The Committee developed and recommended a nine-class substance identification and classification system based on hazardous properties: “Class 1 - explosives, Class 2 - gases, Class 3 - flammable liquids, Class 4 - flammable solids, substances liable to spontaneous combustion and substances which in contact with water emit flammable gases, Class 5 - oxidizing substances and organic peroxides, Class 6 - toxic and infectious substances, Class 7 - radioactive material, Class 8 - corrosive substances and Class 9 - miscellaneous dangerous substances and articles.
”13 Class 7 deals with radioactive materials and other classes also fall in the category of dangerous substances but the major role that classification will play to deal with the safety of transport of radioactive and other dangerous materials because the intensity of radiation depends on the nature of classification and measures can be opted accordingly. The ECOSOC Committee of Experts recommendations have been published and universally accepted for enacting regulations at national and international level. Apart from the Recommendations are called as “Orange Book”.
14 In December 1994 the Committee decided that its recommendations were now complete enough to be recast as Model Regulations which are addressed to all Governments and International Organizations concerned with the development of national and international regulations concerning the transport of dangerous goods and are structured so that they may be
12 Safety of Transport of radioactive materials, GOV/1998/17.
13 Safety of Transport of radioactive materials, GOV/1998/17.
14 IAEA , SAFE TRANSPORT OF RADIOACTIVE MATERIALS 37 (4th Edition 2006 ).
used directly. In July 1995 (Resolution 1995/5), ECOSOC agreed with this approach and invited “all interested Governments, regional commissions and specialised and international organisations concerned, when developing or updating appropriate codes and regulations, to take full account of the recommendations, including the structure and format of such codes and regulations”. 15 IAEA and Transport of Dangerous Goods The International Atomic Energy Agency (IAEA) was established on 29th July 1957 as an intergovernmental organization, autonomous organization which aims at promoting the peaceful use of nuclear energy and reduce the use for military purposes including nuclear weapons. In 1959, the ECOSOC Committee felt the need to cooperate with the IAEA for drafting of any recommendations for safety of transport of radioactive materials.
Apart from that the coordination was extended to other bodies of the United Nations such as International Maritime Organization, International Civil Aviation Organization and other allied agencies which were dealing with radioactive materials and transportation. IAEA statue under its Statue provides “"to establish or adopt, in consultation and, where appropriate, in collaboration with the competent organs of the United Nations and with the specialized agencies concerned, standards of safety for protection of health and minimization of danger to life and property..... and to provide for the application of these standards to its own operations as well as to the operation making use of materials, services, equipment, facilities and information made available by the Agency or at its request or under its control or supervision”.
16 In 1961 the IAEA published regulations for the “safe transport of Radioactive Materials17. After 1961, comprehensive revisions were made in consultation with the member states in the years of 1964, 1967, 1973, 1985 and 1996. In 1998 IAEA issued the regulations for the safe transport of Radioactive Materials which recognized the formal compliance with regulations that need to be taken into account was “providing high level of safety during the transport of radioactive materials.
15 IAEA, SAFE TRANSPORT OF RADIOACTIVE MATERIALS, 2006.
16 The Statue of IAEA 1956, Article 6. Adopted on 23 October 1956 and came into force on 29 July 1957.
17 Safety Series of IAEA No. 6.
Philosophy of IAEA The basic philosophy of IAEA has been reflected in 2005 Safety standards manual. It provides that; “establish standards of safety which provide an acceptable level of control of the radiation, criticality and thermal hazards to persons, property and the environment that are associated with the transport of radioactive material. ” This paragraph goes on to indicate that because the Regulations utilize the principles set forth in basic IAEA radiation protection documents, “compliance with these Regulations is deemed to satisfy the principles of the Basic Safety Standards in respect of transport”. 18 The regulation of transport of the radioactive materials aims at that the packaging of the radioactive materials should be done properly so that any kind of hazard can be prevented including foreseeable accidents.
The design of packaging must be in harmony with the nature of the radioactive materials. Paragraph 105 of TS-R-1 states that “In the transport of radioactive material the safety of persons, who are either members of the public or workers, is assured when these Regulations are complied with. Confidence in this regard is achieved through quality assurance and compliance assurance programmes. ”19 These can be summarized as follows: a. The packaging of the Radioactive materials must be done as cautiously as other dangerous materials; b. Basis of safety is packaging not operational control; c. The consignor will be liable for transport and any kind of mishappening, from proper packaging to control and transport. A sound communication regarding transport must be maintained so that any kind of accidental things can be communicated immediately as an emergency.
IAEA regulations have been adopted throughout the world for transportation of radioactive materials having high standard of safety, which has been achieved a lot of deliberation. IAEA published two comprehensive safety series: Series 6 “Advisory Material for the IAEA Regulations for the Safe Transport of Radioactive Material (1985 Edition)” and safety No. 37 ‘Explanatory Material for the IAEA Regulations for the Safe Transport of Radioactive
18 TSR-1 paragraph 101. P. 1.
19 TSR- 1, 2.
Material’, Safety Series No. 7. “For the benefit of designers and manufacturers of packagings, consignors, carriers, competent authorities and others, Safety Series No. 37 provided advisory information about the technical requirements of the Regulations and about the methods and technology that may be employed to fulfil them”. 20 the provisions of the 2005 manual are as : section III contains general provisions regarding Radiation protection, e mergency provisions, quality assurances, compliance assurance, non-compliance and special arrangements21, Section v deals with requirements and control for transport includes requirements for shipment, contents and properties of dangerous goods, requirement and control for leakage, custom operations etc.
22section VI deals with the packaging of radioactive materials includes requirements of radioactive materials, general rules of packaging and packages, expected packages, industrial packages, requirements for type A, Type B (u), type B (M) and Type C packages and requirements containing packaging for fissile materials. 23 The IAEA regulations are always made in consonance with international legal instruments which deal with the carriage or transport of radioactive materials. Those conventions and legal instruments have been discussed in the next part of the paper.
There are certain other recommendations or documents are which are as follow: • UN Recommendations for the transport of Dangerous Goods, 201924 • IAEA Regulations for the Safe transport of Radioactive materials TS-R-1(2005) edition)25 • IMO International Code for the Safe Carriage of Packaged Irradiated Nuclear Fuel Plutonium and High-Level Radioactive Wastes on Board Ships (INF Code) 200026 • ICAO Technical Instructions for the Safe Transport of Dangerous Goods by AIR, 2009-
20 IAEA SAFETY STANDARDS, REGULATIONS FOR THE SAFE TRANSPORT OF RADIOACTIVE
MATERIAL (IAEA Publications 2005).
21 Id., 17-23
22 Id., 49- 80.
23 Id., 81-98.
24 Recommendations
on the Transport of Dangerous Goods, Model Regulations, 2019 Vol. 1 Available at: https://unece.org/fileadmin/DAM/trans/danger/publi/unrec/rev21/ST-SG-AC10-1r21e_Vol1_WEB.pdf IAEA Safety Standards Series No. TS-R-1, STI/ PUB/1225 available at: https://www.iaea.org/publications/7291/regulations-for-the-safe-transport-of-radioactive-material-2005-edition 26Available at: https://www.imo.org/fr/OurWork/Safety/Pages/Containers-Default.aspx
27 Doc 9284-AN/905, 2009-2010 Edition Addendum No.4 Corrigendum No. 3 15/3/10, available at:
https://www.icao.int/publications/Documents/9284_2009_2010_add_04_corr_03_en.pdf
IATA Dangerous Goods Regulations 200828 and so on. IAEA has developed its recommendations in line with these and other agreements which are discussed in the modes of radioactive material transport. In 2018 the IAEA has adopted and revised its regulations entitled “Regulations for the Safe Transport of Radioactive Materials, (edition 2018) is a revised version of IAEA Safety standard series SSR-6 2012 edition. In 2018, edition the amended paragraph numbers are same but the subject matter of those paragraphs has been changed. “These numbers include 101, 102, 104, 244, 304, 305, 309, 409, 411, 413, 414, 423, 424, 427, 503, 509, 510, 513, 514, 515, 516, 517, 520, 522, 523, 524, 527, 528, 529, 540, 543, 546, 566, 571, 572, 573, 575, 579, 605, 617, 622, 624, 626, 627, 628, 629, 630, 648, 659, 671, 680, 701, 716, 809, 817, 819, 820, 823, 825, 832, 833, 838.
There are certain other paragraphs which are inserted newly such as 220A, 524A, 536A, 613A, 821A, 827A. two paragraphs 233 and 601 have been deleted from the safety standard series. ”29 These changes have been made in respect to changing nature of radioactive materials and more materials are getting included in the categorization of radioactive materials. Time to time changes by the IAEA shows that legal regime governing has been keep on changing due to globalization of nuclear and radioactive research initiatives. The Convention on the Physical Protection of Nuclear Material, 197930 and was amended and renamed as “The Convention on the Physical Protection of Nuclear Material and Nuclear Facilities” in 200531.
The convention obliges the regulation for the peaceful purposes during the international transport, it criminalises offences related to nuclear material, and international cooperation such as theft, robbery etc. The convention shall apply to nuclear materials which are used for peaceful purposes only in the international nuclear transport. the 2005 amendment extended the scope of offences especially including illicit trafficking and sabotage of nuclear materials by including provisions concerning information sharing. Article 2 (A) protects the nuclear materials against the theft or sabotage. Further convention lays down principle of responsibility for international transport for properly transferring nuclear material,32 cooperation and consult33 criminalization of offences related to nuclear materials. 34 The
28 IATA Dangerous Goods Regulations 49th Edition, became effective 1 January 2008, available at:
http://www.airtransport-tozai.com/pdf/DGR49edE-Significant%20Changes3.pdf
29 Available at
https://www-pub.iaea.org/MTCD/Publications/PDF/PUB1798_web.pdf
30 Adopted by IAEA on 26 October 1979, entered into force on 8 February 1987.
31 Adopted on 8 July 2005 and entered into force on 8 May 2016.
32 Art. 3
33 Art. 4
34 Art. 14(3)
Annexure II of the Convention contains what level of protection should be afforded to nuclear materials in international transport. IV.
Modes Of Transport of Radioactive Materials Under International Law a. Transport of Radioactive Materials by Sea Sea has been used as a mode of transport for centuries such as shipments of used fuel from Japan to Europe for reprocessing and return of vitrified high-level wastes to Japan. Ships have been designed in such a way that these dangerous goods can be transported from one place to another place through sea as per standards set by International Maritime Organization. Transport of radioactive materials is regulated under the UN Convention on Law of the Seas
1982.35 There is right to innocent passage for nuclear powered ships and normal ships, if these
have been used for peaceful purposes. Article 17 provides that “subject to the convention, ships of all states, whether coastal or land-locked, enjoy the right of innocent passage through the territorial seas”. 36 Further article 19 defines innocent passage as “passage is not prejudicial to peace, good order and security of the coastal states. It must not against the law of seas and international law. Para 2 of article 19 contains some matters which can be considered as prejudicial to coastal state, these acts include: threat or use of force against the sovereignty of a state, exercise or practice with weapons, an act that aims to collect information about the coastal state, launching, landing or taking any military device on board and so on.
37 Confined seas lanes for passage of nuclear powered ships or noxious substances,38 nuclear powered ships or ships carrying noxious or dangerous goods will have to follow the precautionary principle as settled under international conventions39 compliance with the article 94 is required such as prior notification and if the other states fails to comply with the standards then there right to use innocent passage can be curtailed or prohibited. The coastal state has right to inspect vessels and vessels shall subject to domestic laws for the violation of regulations. 40 Article 198 of UNCLOS provides that when states are aware that its activities in the sea are causing marine pollution, then it is duty of the State to notify other states which are likely to be effected by the pollution, about the same. Apart from Convention on Early Notification of a nuclear Accident
35 United Nations Convention on Law of the Seas 1982, entered into force on 16 November 1994.
36 United Nations Convention on Law of the Seas 1982., art. 17.
37 United Nations Convention on Law of the Seas 1982, Art. 19. Also see, Alexander Proless p. 190
38 Article 22.
39 Article 23
40 Article 220 (2)
1986, mandates the notification of nuclear accidents.41 This duty has been dealt by the ICJ in Corfu Channel case42 that it is duty of state to give notification which is inherent in prior consultation. Article 204-206 provides the environmental impact assessment process, article 16 of the South Pacific Regional Environmental Treaty ensures that each state will have to assess the possible effect of a particular project on marine environment, Article 12 of Cartagena Convention
198343 provides “call for preparation and dissemination of environmental impact assessment”,
the Caribbean’s Protocol Concerning Specially Protected Areas and Wildlife under article 13 obliges the state to adopt the environmental impact assessment process.44 These are legally binding instruments which deal with notification and duty to disclose the effects of a particular project on marine environment so that steps can be taken to protect the marine environment and aware about the potential effects on concerned states. Part III of the UNCLOS deals with “Straits used for International Navigation”, Article 34 determines the legal status of water which comprises straits used for the international navigation and article 35 provides these straits can be used subject to sovereignty of straits bordering states and having jurisdiction. Articles 37-44 deal with rights and duties of transit passage in general whereas article 45 deals with innocent passage through such straits.45 Article
192 of the UNCLOS imposes a positive duty on the states to protect and preserve the marine
environment and prevent the damage caused by the states.46 Article 311 provides that there is nexus between UNCLOS and other international agreements but basic principles of the UNCLOS shall not be affected by the other international agreement which are gist of the law of the sea. Titanic incident took place in 1912 and at that time there was no international agreement governing the life at sea.47 SOLAS (Safety of Life at Sea) international regime a conference was convened after the loss of Titanic. First SOLAS Convention was adopted in 1914 regarding “"the carriage of goods which by reason of their nature, quantity and mode of storage” was
41 Adopted on 26 September 1986 and entered into force on 27 October 1986.
42 United Kingdom vs Albania ICJ Report 1949.
43 Adopted on 24 March 1983 entered into force on 11 October 1986.
44 Protocol Concerning Specially Protected Areas and Wildlife to The Convention For The Protection And Development Of The Marine Environment Of The Wider Caribbean Region, 1990.
45 United Nations Convention on the Law of Sea, 1982. Art. 45
46 UNCLOS., art. 192.
47 STEPHAN TROMANS, NUCLEAR LAW
THE LAW APPLYING TO NUCLEAR INSTALLATIONS AND RADIOACTIVE SUBSTANCES IN ITS HISTORIC CONTEXT 324 (Hart Publishing, 2010). dealing with the “safety of ships and lives of passengers”. So far as decision regaring “dangerous goods” was concerned, left to the contracting parties, which were requested “to advise on the precautions to be taken in the packaging, segregation, storage etc of such goods”. SOLAS Convention 1914 never came into force due to number of issues including determination of dangerous goods and which competent authority will decide on this matter.48 Then, 1929 the SOLAS conference was convened with the same approach as in 1914. Article
24 of SOLAS Convention 1929 contained term “dangerous goods” and still it was left to the
individual administrator to reckon on dangers and take required precautions. Third SOLAS Conference took place in 1948, in which more cargoes were included in the list of dangerous goods. Accordingly, a Chapter dealing with the "Carriage of Grain and Dangerous Goods" was included in the SOLAS Convention 1948. However, the Conference, recognizing that this was inadequate, stressed the importance of international uniformity when precautions were being taken to ensure the safe transport of dangerous cargoes by sea and noted that certain countries with an extensive export trade in chemicals had already adopted detailed safety regulations.
The conference concluded that: • “Dangerous goods” needs to be considered on the basis of their properties and nature • Distinct symbols should be developed for labelling system containing what kind of danger a good can cause and what class of materials are in the packaging. Fourth SOLAS conference took in 1960 with the aim of revising SOLAS Convention 1948 and chapter VII of the SOLAS Convention 196049 exclusively dealt with “carriage of dangerous goods”. Further in 1974 the SOLAS Convention 160 was revised and adopted SOLAS Convention 197450, the SOLAS Convention 1974 has amended and these amendments have been adopted by IMO “by means of protocols and resolutions adopted either by IMO’s Maritime Safety Committee (MSC) in its expanded form or by Conferences of SOLAS Contracting Government”.
The carriage of dangerous Goods has been prohibited under chapter VII and enlarged by International Maritime Goods Code. Around 99% carriage of goods have been done under the SOLAS Convention 1974 chapter VII with maritime safety standards which are mandatory in nature to be followed by the parties.
48 Ibid.
49 Entered into force on 26 May 1965.
50 Entered into force on 25 May 1980. It has been ratified by 163 Countries.
International Maritime Dangerous Goods Code adopted by the Maritime Safety Committee by resolution MSC 122 adopted amendments in accordance with Article VII of SOLAS Convention. In 2002, the MSC adopted amendments to SOLAS chapter VII to make the IMDG Code mandatory, which came into force on 1 January 2004. Since then, further amendments were adopted to facilitate user-friendliness and promote uniform implementation of the Code. Observance of the Code harmonizes the practices and procedures followed in the carriage of dangerous goods by sea and ensures compliance with the mandatory provisions of the SOLAS Convention and of Annex III of MARPOL. 51 The IMDG Code covers transport of radioactive material under chapter 1. 5 dealing with general provisions, chapter 2. 7 on class 7 of radioactive materials.
The provisions of the IMDG Code establish standards of safety which provide an acceptable level of control of the radiation, criticality and thermal hazards to persons, property and the environment that are associated with the transport of radioactive material. These provisions are based on the IAEA Regulations for the Safe Transport of Radioactive Material,
2012 Edition, IAEA Safety Standards Series No. SSR-6, IAEA, Vienna (2012).52 Explanatory
material can be found in Advisory Material for the IAEA Regulations for the Safe Transport of Radioactive Material (2012 Edition), IAEA Safety Standards Series No. SSG-26, IAEA, Vienna (2014). 53 The INF Code defined by SOLAS regulation VII/14. 1 , an international code for the safe Carriage of Packaged Irradiated Nuclear Fuel, Plutonium and High Level Radioactive on Board Ships by the Maritime Safety Committee of the Organization by resolution MSC 88.
54 the INF Code “shall apply to all ships regardless of the date of construction and size, including cargo ships of less than 500 gross tonnage, engaged in the carriage of INF cargo, but do not apply to warships, naval auxiliary or other vessels owned or operated by a Contracting Government and used, for the time being, only on government non-commercial service; however, each Administration shall ensure, by the adoption of appropriate measures not impairing operations or operational capabilities of such ships owned or operated by it, that such ships carrying INF 51 IAEA, “Legally Binding and Non-Binding International Instruments and Regulations Concerning The Safe Transport of Radioactive Materials And Their Implementation” 2017 edition Prepared by Secretariat. Available at: https://www. iaea. org/sites/default/files/18/07/transport-report-dec2017.
pdf 52 Legally Binding and Non-Binding International Instruments and Regulations Concerning The Safe Transport of Radioactive Materials And Their Implementation. 53 Legally Binding and Non-Binding International Instruments and Regulations Concerning the Safe Transport of Radioactive Materials and Their Implementation. 54 Legally Binding and Non-Binding International Instruments and Regulations Concerning the Safe Transport of Radioactive Materials and Their Implementation, at 18. cargo act in a manner consistent, so far as reasonable and practicable, with SOLAS regulation VII (part D) and the INF Code. ”55 Apart from above mentioned rules the Convention of the Carriage of Goods by Sea, 197856 which was adopted at Hamburg Conference also known as “Hamburg rules” establishes a uniform legal regime to govern the liabilities and rights of shippers, carriers, and consignees under a contract.
but it does not specifically deal with radioactive materials. b. Transport of Radioactive Materials by Air Another mode of transport of radioactive materials is air carriage. The Convention on International Civil Aviation (the Chicago Convention), 194457 governs the commercial civil aircraft. Chapter VI of the convention deals with “international standards and recommended practices” comprising of articles 37- 42. Article 37 contains obligations which states parties need to undertake to cooperate with each other in “securing the highest practicable degree of uniformity in regulations, standards, procedures and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation”.
The main task under the ICAO is to “"adopt and amend from time to time, as may be necessary, international standards, measures, practices and procedures dealing with ... such other matters concerned with the safety, regularity and efficiency of air navigation as may from time to time appear appropriate”. 58 Article 38 provides that if any state fails to comply with standards settled under ICAO or want to differ, the state shall have to provide a notification to that effect. article 39 provides “endorsement of certificates amd licences whereas Art. 40 deals with validity of endorsed certificates and licences.
Article 44 elaborates the objectives of the ICAO such as: surety of safe and orderly growth of international civil aviation throughout the world, encouragement for development of design and operation of aircrafts for peaceful purposes, development of air navigation facilities, to meet needs of people for safe and regular and economical air transport, to prevent misuse of aircrafts, and so on. 59 Article 54 contains functions of ICAO which are of mandatory nature including “adopt, in accordance with the provisions of Chapter VI of this Convention, international standards and recommended practices; for convenience, designate them as Annexes to this Convention; and
55 Came into Force on 1 January 2001.
56 Adopted in Diplomatic conference on 31 March 1978 and came into force on 1 November 1992.
57 The Convention was signed on 7 December 1944, came into force on 4 April 1947.
58 Art. 37.
59 Art. 44.
notify all contracting States of the action taken”. Annexure 18 of the convention establishes international standards for safe transportation of dangerous goods by air. The annexure was developed by the Air Navigation Commission in answer to requirement expressed by contracting parties. The ICAO has developed the regulations for safe transport of radioactive materials or dangerous goods in consonance with other bodies dealing with transport of dangerous goods such as IAEA, ECOSOC etc. further, “the detailed requirements for the carriage of radioactive material by air are set out in Part 2 of the Technical Instructions. Chapter
7 reproduces the 1985 Edition (As Amended1990) of the IAEA’s Regulations for the Safe
Transport of Radioactive Material (Safety Series No. 6). Some departures in the domestic regulations of individual States from the recommendations contained in Safety Series No. 6 are listed. ”60 c. Transport of Radioactive Materials by Post The Universal Postal Union is a specialised agency of United Nations. It was established on 1 July 1948 and it regulates the international postal services. It is consisting of 192 members and a largest physical distribution network in the world. The Universal Postal Union was established under the Treaty of Bern, 1874. Amendments to the Constitution can only be made at a UPU Congress and are subject to ratification. The detailed regulation related to postal letters are contained in the Universal Postal Convention, 199461. The meet the needs, and flexible and clear regulation, the UPU congress recast its Act in 1994.
Article 4 of the Convention talks about the freedom of transit and it mentions the infectious and radioactive materials. The convention contains following prohibitions under article 28 of the Convention as follows: § Articles due to its nature may expose postal officials to danger; and § Explosive, flammable and other dangerous substances. The IAEA has developed its Regulations for the Safe Transport of Radioactive Materials, 1967 (edition), and then IAEA’s 1996 Edition of the Regulations for the Safe Transport of Radioactive Material (TS-1 series)62deals with requirements of packing and expected package. It contains “transport by post where the activity of the radioactive contents does not exceed
60 Tromans supra note 47 at 21.
61 The Universal Postal Convention, 1994.
62 Regulations for the Safe Transport of Radioactive Material 1996 Edition (Revised), Safety Standards Series No. TS-R-1 (ST-1, Revised), available at: https://rampac. energy. gov/docs/default-source/iaeainfo/ts-r-1. pdf 1/10 of the activity limits prescribed for excepted packages. Such excepted packages may be accepted for domestic carriage by national postal authorities, subject to such additional requirements as those authorities may prescribe. Such excepted packages may be accepted for international carriage by post, subject to certain additional requirements as prescribed by UPU. These additional requirements, which are listed, reproduce the provisions of Article 121 of UPU’s Detailed Regulation.
”63 The Universal Postal Convention does not enact specific regulations for radioactive materials but it works with IAEA regulations and its implementation is done by the IAEA for the carriage by post. d. Transport of Radioactive materials by Road and Rail This part discusses the legal regime governing transport of radioactive materials by road and Railway. Both the methods of transport are land based and mostly in Europe. The International transportation is confined to continental only not regulating transport by rail and road. Regional Agreements have been entered at regional level such as European Countries have concluded some treaties and agreements which govern the land based and rail transport of carriage of dangerous goods. Regional agreements have been regulated by the United Nations Economic Commission for Europe.
The Commission issue time to time recommendations to meet the new arising issues but these agreements are always in line with the IAEA Safety Standards. 64 V.
Conclusion
The safe transport of Radioactive materials plays very significant role in the peaceful uses of radioactive materials. IAEA is one of the major organizations which has been playing pivotal role in the safe transport of radioactive materials because it has been established for the purposes of atomic energy. The IAEA has settled various safety standards which needs to be met by the carriage and states parties. Transport of radioactive materials is mostly made through the sea routes and most elaborative legal regime to govern the transport and it is mostly done under the United Nations Convention on the Law of seas, 1982 which protects the marine environment. Prior notification of damages is required to be done and protection of marine environment is goal of the UNCLOS. The transport by air carriage is regulated under the Convention on International Civil Aviation, 1944.
The transport by post is regulated under the Universal Postal Convention. Transport by rail and road is not regulated under the international 63 The IAEA’s 1996 Edition of the Regulations for the Safe Transport of Radioactive Material (ST-1), paragraphs 580-581 (pp. 71-72).
64 Tromans, supra note 47 at 326.
regime because land-based transport is done under the regional instruments and most developed system is in Europe. So far as the regulation of radioactive materials under the international legal regime is concerned, regulated under various convention but there is no specific convention which regulates the transport of radioactive materials covering all the means and modes of transport and providing specific code of conduct for these dangerous goods. Chapter VII of the ECOSOC has enumerated the lists of dangerous goods and list 7 specifically dealing with the radioactive materials.