The Transportation of Nuclear Cargo at Sea - Shrinkage of the Right of Innocent Passage?

Abstract: The maritime transportation of hazardous cargo has created a sometimes intense dispute between the shipping industry and coastal states. The arguments feeding this discussion are the right of innocent passage, claimed by shipping states, and on the other hand, the obligation to protect the environment stressed by coastal states. Two sets of rules, both codified in international law, stand in conflict with each other. The contradictory legal norms in addition to conflicting views on coastal state security cause the shipping of hazardous cargo to remain an acute matter of discussion. Under the law of the sea, a coastal state has sovereign power over its territorial sea. This part of the sea, in most respects, is to be regarded as a continuation of land territory, an area where the coastal state has complete authority. At the same time there is a right, in both treaty and customary law, for foreign ships to travel the territorial seas of other states in innocent passage. Thus, a contradiction is created by which both coastal states and other maritime states are entitled to use the territorial sea. While shipping states are transporting nuclear cargo, using their right of innocent passage, many coastal states are protesting against these shipments because they are inherently dangerous and a threat to their peace and security. There should be no right of innocent passage for these ships, at least not without prior notification. This position is obviously not supported by transporting states. They argue that a nuclear ship is not automatically a threat to the coastal state and should not be regarded as non-innocent. Because of the specific dangers associated with the maritime transportation of nuclear cargo this matter is regulated by several international conventions. The focus of these arrangements is primarily a preventive one aiming at minimising the risk of marine pollution. Coastal states are not convinced that this regulation is enough and they demand a right to get prior information before a shipment of ultrahazardous nature takes place. State practice and national legislation among affected coastal states indicate a more restrictive interpretation of the right of innocent passage. Even if this practice has not yet turned into customary law, a norm with this content is slowly evolving in international law. Regardless of who is legally right in this discussion the dispute calls for a solution. Coastal states will continue to protest against these shipments if they are not informed beforehand and safer journeys are in the best interest of all states. Therefore, a more comprehensive solution is needed which must take place outside UNCLOS. There is no future in trying to change the general freedoms of navigation when it comes to the transportation of nuclear cargo. Instead, it is certainly easier for states to agree on specific areas of the sea where the shipment of ultrahazardous cargo may not take place. In these particular sensitive sea areas, it will then be possible to introduce a more restrictive approach towards shipping activities.