TL: ANNEXE 4 GREENPEACE'S RESPONSE TO CIRCULAR 222 (3) DISPOSAL OF RADIOACTIVE WASTES IN A SEABED REPOSITORY ACCESSED FROM THE SHORE IS DUMPING AT SEA UNDER THE TERMS OF THE LDC SO: Greenpeace International (GP) DT: 1989 Keywords: conventions waste disposal ocean dumping nuclear power radioactive waste ldc greenpeace statements gp / ABSTRACT The basic issue posed by question three of circular 222 is whether the LDC applies to the disposal of radioactive wastes in a seabed repository accessed from shore. This paper concludes that the LDC does cover this disposal method. The conclusion is based on the following reasons: 1. The direct application of the express language of Article III of the LDC to shore-accessed seabed repositories can logically and reasonably result in the conclusion that such a disposal method is "dumping at sea" under the LDC. 2. Pursuant to past positions taken by the Consultative Meeting that the LDC is the appropriate forum to address the similar issue of seabed repositories accessed from sea, the same view should be taken regarding seabed repositories accessed from shore. To decide otherwise would be inconsistent and would provide a means of circumventing the purpose of the LDC. 3. The consideration of a number of other factors supports the position that the LDC is the appropriate forum for the issue: a. The duties and responsibilities of the Contracting Parties pursuant to the LDC warrant their addressing the issue, especially in light of the environmental risks threatening the marine environment. b. Other bodies which address seabed disposal, and the sea in general, have included the seabed (regardless of how it is accessed) as an integral part of the sea within their framework for regulating practices affecting the marine environment. c. International concern that would result - given that the LDC is the most appropriate regulatory forum - should the LDC parties not address and apply the Convention to this issue. Emerging from this analysis and conclusion, it is recommended that the LDC Contracting Parties assume their responsibilities for the protection of the marine environment and resolve to address and apply the Convention to the issue of seabed repositories accessed from shore. THE DISPOSAL OF RADIOACTIVE WASTES INTO A SEABED REPOSITORY ACCESSED FROM SHORE As a result of the concerns expressed during the Eleventh Consultative Meeting of the LDC regarding the consideration by the United Kingdom given to radioactive waste disposal methods involving the sea, the IMO Secretariat distributed Circular 222 in November, 1988, containing three questions for discussion by the Twelfth Consultative Meeting. Question three, quoted below, concerns shore-accessed seabed repositories: LDC CIRCULAR 222 (18 November 88) "3. Perspectives of Contracting Parties as to whether disposal of low-level radioactive wastes into a repository, constructed in bedrock either totally or partially beneath the sea, and accessed from shore (e.g., via a tunnel or other conduit) would be dumping at sea under the terms of the LDC." In order to adequately address the issue, it is necessary to analyse the express language of the LDC; the past discussions, resolutions and positions taken by the Contracting Parties on similar issues; as well as other factors which assist in determining the appropriateness of the issue being addressed and regulated by the LDC. I. THE APPLICATION OF THE EXPRESS LANGUAGE OF THE LDC Applying the language of the LDC to seabed disposal accessed from shore results in the conclusion that such a disposal practice is within the terms of the LDC. However, the issue is not unambiguously resolved by applying the express language of the LDC. The LDC in Article III defines "dumping" in paragraph 1.(a)(i) as: "any deliberate disposal at sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea;". The word "sea" is defined as "all marine waters other than the internal waters of States". (Article III 3.). Thus the word "at" becomes important. Pursuant to generally accepted rules of interpretation for international law, the plain meaning is to be given to commonly used words. The 1969 Vienna Convention on the Law of Treaties, Article 31 establishes the general rule of interpretation. It states that a treaty is to be interpreted in good faith and according to the ordinary meaning to be given to terms in their context and in light of the object and purpose of the treaty. The plain meaning of the phrase "at sea" entails the concept of on, in, near, or by the sea as the plain meaning dictionary definition. Seabed emplacement of radioactive wastes accessed from shore, therefore, arguably falls within the scope of "dumping at sea" under the express terms of the LDC. Such a disposal method certainly falls within the scope of the LDC in terms of the object and purpose of the Convention to protect the marine environment and should be within the issues addressed by the Contracting Parties in light of their previous decisions to address the similar issue of seabed repositories accessed from the sea. The Contracting Parties should undertake to meet their responsibilities by basing the focus of protective measures on the final resting place of the waste. II. INTERPRETATION PURSUANT TO PAST DECISIONS AND POSITIONS TAKEN BY THE CONTRACTING PARTIES ON THE RELATED ISSUE OF SEABED REPOSITORIES ACCESSED FROM THE SEA In 1983, during the Seventh Consultative Meeting, a resolution was adopted calling for a Special Meeting of Legal Experts to report to the Contracting Parties whether or not seabed emplacement of HLW is covered by the LDC. The legal experts met in December 1983 but no consensus was reached. Thus the issue was left to the Eighth Consultative Meeting for further discussion and action. During discussion of the issue at the Eighth Consultative Meeting, there was two developments relevant to the present issue of shore accessed repositories: 1) It was agreed by consensus that: (1)The Consultative Meeting of the Contracting Parties is the appropriate international forum to address the question of the disposal of high-level radioactive wastes into the seabed, including the compatibility of this method of disposal with the provisions of the LDC. (2) No such disposal should take place unless and until it is proven to be technically feasible and environmentally acceptable, including a determination that such waste can be effectively isolated from the marine environment, and a regulatory mechanism is elaborated in accordance with the provisions of the LDC to govern the disposal into the seabed of such radioactive wastes. 2) Although the decision that the LDC is the appropriate forum to address the seabed emplacement was taken by consensus, two groups of countries were divided on the issue of the legal application of the LDC to this disposal method. The dominant coalition of nations stating a position on the issue interpret the LDC as applying to and prohibiting the seabed emplacement of high-level radioactive wastes. These countries recognise that the express language of the LDC may be unclear on the issue but that the protection of the marine environment under the LDC requires an interpretation that seabed emplacement or disposal is "disposal at sea". The view reflected in point 2), above, was expressed in a draft "Nordic" resolution sponsored by 17 States who were joined by 8 more States during the Ninth Consultative Meeting. The position that seabed emplacement is not covered by the LDC was taken by a minority of the States speaking out on the issue. +France, Japan, The Netherlands, Switzerland, the UK, and the USA submitted a draft "US" resolution reflecting their position that the LDC does not cover seabed emplacement as presently written and therefore that such a disposal method is not prohibited. All these States either have been or are involved in the research efforts regarding such a disposal method and have dedicated significant amounts of money on such research. No vote was taken on either the Nordic or US resolution at the Eighth Consultative Meeting. Instead, they were attached to the final meeting report. The debate on this and other radioactive waste disposal issues was revived at the Eleventh Consultative Meeting by the Irish delegation due to the United Kingdom's plans to develop a program for the seabed emplacement of low- and intermediate-level radioactive wastes in coastal areas into repositories either accessed from the sea or via tunnels from the shore. Accordingly, the Contracting Parties - consistent with their responsibility under the LDC to protect the marine environment, and in light of the unanimously agreed position that the LDC is the appropriate forum to address seabed emplacement of HLW - should apply the same view that the LDC is the appropriate forum to the issue of seabed repositories accessed from the shore. To decide otherwise would result in an inconsistent and illogical situation wherein the disposal of radioactive waste in seabed repositories is determined to be an appropriate issue for the LDC Contracting parties to consider when the transfer of the waste to the repository is via a vessel, platform, or similar structure at sea BUT NOT when the transfer of the SAME WASTE to the SAME REPOSITORY (with the same environmental risks to the marine environment) is accessed from the shore. The reasonable and logical decision would be for the Contracting Parties to address the issue in conjunction with the issue of seabed repositories accessed from the sea. III. OTHER FACTORS AIDING IN THE DETERMINATION OF WHETHER THE LDC IS THE APPROPRIATE FORUM TO ADDRESS SHORE-ACCESSED SEABED REPOSITORIES A number of other factors support the position that the LDC is the appropriate forum to address and regulate the issue. 1) In interpreting the appropriateness for the LDC to address shore-accessed seabed repositories, it is useful to review the duties and responsibilities which the Contracting Parties are committed to. The basic purpose of the LDC is to provide a legal framework and forum for States to unite in their efforts to ensure that the marine environment is protected from the dangers, present and potential, from dumping wastes. The Convention's basis, founded upon the commitment to protect the marine environment, is announced in the Preambular paragraphs and Article I. Article I states that: Contracting Parties shall individually and collectively promote the effective control of ALL SOURCES of pollution of the marine environment, and pledge themselves especially to take all practical steps to prevent the pollution of the sea by the dumping of wastes and other matter that is liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea. (emphasis added). It is worth restating that to consider sea-accessed seabed repositories as an issue within the responsibility of the LDC, but not shore-accessed repositories carrying comparable long term environmental risks to the marine environment, would provide an obvious means of circumventing the LDC and lead to an irrational implementation of responsibilities under the LDC. It is therefore recommended that the Contracting parties assume their duties and responsibilities which they have committed themselves to and address the issue of shore-accessed seabed repositories which place the marine environment at risk of pollution damage. The long term risks to the marine environment posed by this disposal method, as mentioned, are substantially the same whether the repository is sea accessed or shore- accessed. Many scientific and technical uncertainties surround the issue of the various forms of disposal of radioactive wastes under the seabed, and no exhaustive comparative study has yet been done. Such a study must compare with non-disposal options of permanent engineered storage on land. The degree of uncertainty and risk to the global commons is simply too great to permit this disposal method without international regulation, and the LDC is the most appropriate international forum to address the issue. 2) Because seabed disposal entails substantially comparable risks to the marine environment as direct disposal into the marine waters, other regulatory bodies aware of the seabed disposal option, have included seabed disposal within their restrictions on dumping at sea. The US government conducted legal research to analyse whether seabed emplacement of HLW was "dumping" within the meaning of the Ocean Dumping Act (the Marine Protection, Research, and Sanctuaries Act of 1972): The Environmental Protection Agency (EPA), the administrative agency responsible for the administration of the Act concluded that HLW seabed burial was dumping and therefore prohibited. A UNEP Regional Seas Convention, the South Pacific Regional Environment Program's (SPREP) Convention, contains a ban on dumping which expressly includes HLW and LLW seabed disposal. This position taken by SPREP is compatible with Article VIII of the LDC which calls for regional agreements to further the objectives of the LDC. Such a position taken by the Contracting Parties to the LDC would likewise further the objectives of the Convention. 3) In addition, the Third United Nations Conference on the Law of the Sea (UNCLOS III) produced a treaty to comprehensively address the use of the oceans. With 40 of the 60 required ratifications having been submitted to date (and with the Convention having been signed by more than 120 nations), that treaty logically and appropriately includes the sea, its airspace, and its seabed within the concept of the territorial sea. This approach to include the sea, its airspace, and its seabed within any framework for addressing issues related to the sea, in general, and pollution issues in particular, is advisable for the LDC as well. 4) In addition to the preceding arguments supporting the position that the LDC is the appropriate international body to address the issue of shore-accessed seabed repositories, significant international outrage would result if the LDC did not undertake the regulation of this disposal method. To forego the responsibility of addressing this issue would provide a means of circumventing the LDC and exposing thereby the marine environment to dangers of radioactive contamination which the international community have decided to prevent by adopting and respecting the moratorium on radioactive waste dumping. IV. CONCLUSION Pursuant to the foregoing analysis and especially in light of the Eighth Consultative Meeting's consensus decision that the LDC is the appropriate body to address the issue of seabed disposal into repositories accessed from the sea, shore-accessed seabed disposal of radioactive wastes also should be considered as an issue within the scope of responsibilities of the LDC. Whether the disposal of waste occurs on the surface of the sea (direct dumping, ocean incineration, or through pipes connecting the surface with seabed repositories) or from under the sea, the Convention should equally apply to accomplish its purpose to protect the marine environment. It is therefore recommended that the Contracting Parties uphold the integrity of the Convention and agree that the LDC provides the appropriate international forum for addressing and regulating the issue of seabed repositories accessed from shore.