Por: Josué Rodríguez Cruz*
The maritime transportation of nuclear waste through the Caribbean is a risk to the region’s marine ecosystems and a violation of the human rights of its inhabitants. However, despite the opposition of the Caribbean states, Japan, France, and the United Kingdom have transported their radioactive waste through the Caribbean without facing any consequences. Therefore, it is necessary to seek alternatives to obstruct the transport of radioactive substances through Caribbean waters.
In this paper, we will examine whether the Caribbean states could stop the transport of nuclear waste through their waters by filing a case in the International Court of Justice (hereinafter “ICJ”) under the United Nations Convention on the Law of the Sea (hereinafter “UNCLOS”). In the first section, we will establish the legal framework by analyzing UNCLOS’ provisions relating to dispute settlement mechanisms, environmental pollution, State responsibility, and forum options. Then, we will discuss some environmental cases elucidated under UNCLOS in international courts. Finally, we will examine the benefits of bringing a case to the ICJ and why Caribbean states should resort to the ICJ to bring their environmental claims against nuclear waste transport.
I. United Nations Convention on the Law of the Sea: Environmental and Jurisdictional Provisions
UNCLOS is the leading global agreement regulating ocean activities, and one of its principal objectives is protecting and preserving the marine environment. Hypothetically, this international agreement is comprehensive enough to be applied to other environmental damages, such as the sea-level rise and glacier melting due to climate change caused by industrial activity. Although, to date, UNCLOS has not been tested in many situations, there is no doubt that its environmental protections are clear and robust.
A. Environmental Provisions
Article 1(4) of UNCLOS defines pollution of the marine environment as:
[T]he 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, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.
According to Professor Doelle, a traditional interpretation of Article 1(4) of UNCLOS is inappropriate, and instead, it should be interpreted as a living document, not frozen in time. Taking this argument as accurate, it is indispensable to adjust UNCLOS to the current environmental threats, such as climate change and the use of nuclear energy.
On the other hand, Part XII of UNCLOS obliges States to protect threatened species and ecosystems. Part XII begins with Article 192, establishing that: “States have the obligation to protect and preserve the marine environment.” In the case of the South China Sea, the Tribunal explained that the word protect, mentioned in Article 192, is to be interpreted in terms of protecting the marine environment from future damages. In contrast, the word preserve means to maintain or improve the existing conditions of the marine environment. The Tribunal also stated that both elements obligate taking active measures and preventing the degradation of existing ecosystems. Article 194 is also part of the repertoire of marine environmental protection and provides that States are obliged to take all the necessary measures to prevent, reduce and control pollution of the marine environment of any source by using the best practical means. In addition to the preceding articles, Articles 195, 212, and 207, aims to mitigate marine pollution and require States to enact legislation in line with UNCLOS’ objectives, including preventing pollution from land-based sources.
B. Dispute Resolution Provisions
After this environmental legal framework, let us examine the UNCLOS sections about dispute resolution. These provisions establish where States can file claims related to UNCLOS. Before proceeding any further, it must be clarified that the parties involved in a dispute under UNCLOS must be part of it. Therefore, States like the United States are excluded as they are not a party to UNCLOS.
Regarding dispute resolution, Article 279 establishes that States must peacefully settle any disputes concerning the interpretation or application of UNCLOS under the Charter of the United Nations. Nevertheless, if the parties fail to reach an agreement, Article 286 dictates that if either party requests, the dispute may be submitted “to the court or tribunal having jurisdiction under this section”. In support of the preceding, Article 287 sustains that States shall be free to choose one or more of the following fora to resolve their disputes: (a) ITLOS, (b) the ICJ, (c) an arbitral tribunal constituted under Annex VII, or (d) a special arbitral tribunal constituted under Annex VIII. Article 288 provides that the aforementioned fora shall have jurisdiction over any dispute concerning the interpretation or application of UNCLOS or an international agreement related to the purposes of UNCLOS.
As we have seen, UNCLOS has the necessary provisions for States to submit their environmental complaints in different forums, such as ITLOS and arbitration tribunals. Thus, with a better understanding of UNCLOS provisions, we will observe how these have been applied.
II. International Case Law on the Law of the Sea
Marine pollution events, whether caused by accidents or intentional acts, generate international disputes that may involve private entities or States. In this paper, we will focus on conflicts between States and review two cases that have been heard in international fora.
The first case to be discussed arose in 1999 when Australia and New Zealand filed a claim against Japan before the International Tribunal for the Law of the Sea (hereinafter “ITLOS”). Here the plaintiffs understood that Japan failed to comply with its obligation to cooperate in the conservation of the Southern Bluefin Tuna population by undertaking unilateral experimental fishing for Tuna, amongst other actions. In this case, ITLOS recognized the prima facie jurisdiction of the arbitral tribunal according to Articles 287 and 288 of UNCLOS. The basis of the claim lies in the fact that Tuna is a highly migratory species that cross the territorial seas of various states, which in turn violates Articles 64, 116, and 119 of UNCLOS. After hearing the arguments, ITLOS issued the following provisional measures: (1) the parties must not take actions that worsen or extend the dispute; (2) the parties must not take actions that prejudice the execution of any ITLOS decision; (3) the parties must not exceed the maximum catches established; (4) none of the parties may carry out experimental tuna fishing programs, and (5) the parties must resume negotiations as soon as possible to reach an agreement on the conservation and management of tuna.
The other environmental case in which UNCLOS was invoked, involved a dispute between Ireland and the United Kingdom (hereinafter “U.K.”). The case commenced in 2001 when Ireland requested ITLOS provisional measures against the U.K. over the transportation of radioactive materials through the Irish Sea. This came after having filed a claim for the same facts months earlier under the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (hereinafter “OSPAR”). Ireland claimed that, as a result of the MOX fuel processing plant operation, the U.K. had been polluting the Irish Sea by discharging nuclear material since the early 1950s. In addition, in its Statement of Claim, the Irish government alleged that the U.K. was in breach of the following provisions of UNCLOS: (1) the U.K.’s obligation to cooperate with Ireland by taking measures to protect and preserve the Irish Sea, as set out in Article 123 and 197 of UNCLOS; (2) the U.K.’s obligation to make an environmental assessment about the effects of the reprocessing plant and the movement of radioactive material on the environment, as provided for in Article 206 of UNCLOS, and (3) the obligation of the U.K. to protect the marine environment of the Irish Sea, including taking the necessary measures to prevent, reduce, and control radioactive pollution in the Irish Sea, as provided for in Articles 21, 192, 193, 194 (1) (2), 194 (3) (a), 207, 211 and 212 of UNCLOS.
After weighing the evidence, ITLOS concluded that the situation’s urgency did not warrant all the provisional measures requested by Ireland. However, it recognized the importance of preventing ocean pollution as set out in Part XII of UNCLOS. The Tribunal unanimously ruled that, pending the arbitral tribunal’s decision under Annex VII of UNCLOS, the parties had to cooperate by exchanging information, monitoring the risk, and establishing measures to prevent pollution.
Two months after the ITLOS decision, the arbitral tribunal was constituted under Annex VII (hereinafter “AT”), due to a disagreement regarding the choice of forum between the parties. The AT heard Ireland’s claims but suspended the proceedings until the European Community resolved the case because Ireland had brought a claim against the U.K. on the same facts before that forum. The suspension of the case was a sign of mutual respect and comity between the judicial institutions. Nevertheless, the AT agreed to evaluate the requests for provisional measures. Ireland then submitted its request, but the AT again ruled against it as it considered that Ireland failed to prove that the nuclear plant would cause serious harm to the marine environment. The AT merely recommended that the parties seek intergovernmental alternatives to encourage cooperation. Eventually, the European Community ruled against Ireland for violating the European Community Treaty for submitting the dispute to another tribunal without first consulting the European Community Commission since the European Court of Justice has exclusive jurisdiction over treaty matters, including UNCLOS.
Although the outcome in both cases was unfavorable to the petitioners, they illustrate how States can use UNCLOS as a tool to combat the destruction of their marine environment due to nuclear activity. However, the fact that the cases were brought before ITLOS, raises the question of whether the petitioners should have resorted to the ICJ.
III. The International Court of Justice: Its Jurisdiction and Advantages of Appearing Before It
The origin of the ICJ is found in Article 92 of the Charter of the United Nations. As the most important international judicial body, it has defined itself as follows: “[I]t is not an arbitral tribunal constituted by a special agreement of the parties to settle a particular dispute, but an institution pre-established in an international instrument which has defined its jurisdiction and regulated its operation.”
The ICJ is not a court of generalized jurisdiction, so States seeking to bring legal action before it must demonstrate the Court’s jurisdiction. First, according to Article 36 of the Statutes of the ICJ, the jurisdiction of the ICJ may arise from “treaties and conventions in force,” such as UNCLOS. On the other hand, for the ICJ to hear a dispute, States must have accepted its jurisdiction in one of the following ways: (1) by a special agreement between the States to submit the dispute to the Court; (2) by a jurisdictional clause set forth in a treaty, which provides that if a dispute arises in the future concerning the interpretation of a such treaty, either party may submit it to the Court, and (3) by the reciprocal effect of declarations made by States accepting the jurisdiction of the ICJ as compulsory in the case of a dispute with another state which accepted the same obligation. The ICJ will then assess the arguments and evidence adduced.
B. Advantages of going to the International Court of Justice
As we have seen, Article 287 of UNCLOS establishes that State parties can resort to the ICJ to resolve their disputes. But why would a State choose to file an environmental case before the ICJ and not in another legal forum? To answer this question, we must acknowledge that most of the action in environmental law takes place through negotiations that culminate in different treaties —such as the Kyoto Protocol of 1997 and the Paris Agreement— rather than adjudication. But this method of handling environmental law at the international level is uncertain due to the changing political landscape in the United States. Hence, as a result of the political difficulties and the slow pace of the negotiation process, litigation has gained prominence as a viable alternative.
The ICJ could adjudicate faster than what it takes for the international community to reach agreements through negotiation. Compared to other judicial forums, such as arbitration tribunals, the ICJ has the broadest subject-matter jurisdiction and occupies a special place among the various adjudicative forum because of its role as the principal judicial organ of the United Nations. The ICJ also has the power to influence the decision-making process of national courts. Furthermore, it can redistribute argumentative burdens by becoming a precedent for future litigation and international diplomacy, shaping expectations for future international litigation, and changing social values and norms. Despite the advantages the ICJ can offer for resolving environmental disputes, we have seen that States have opted for other alternatives. In the Caribbean, the situation has been no different.
IV. The Caribbean and the Nuclear Waste
The Caribbean States, particularly the island States, depend on their marine resources for their livelihoods. Any threat to their resources must be repelled vehemently; otherwise, the existence of their inhabitants would be jeopardized. Although we have discussed litigation before the ICJ as a viable option to defend marine resources, Caribbean countries have not taken advantage of this recourse thus far. They have limited themselves to taking their claims to other forums, such as federal courts and courts not recognized by the international community.
For example, in 1998, environmental organizations and a group of Puerto Rican fishermen filed a lawsuit in the U.S. District Court for the District of Puerto Rico seeking to stop a British ship —which carried radioactive material— from passing through the Mona Passage. The court ruled against the plaintiffs arguing that it did not have the power to regulate the transport of nuclear waste carried out under the international law doctrine of innocent passage.
On another occasion, a group of Panamanian environmental organizations sued the Panamanian government before the Central American Water Tribunal (hereinafter, “CAAWT”) for allowing the transport of radioactive material through the Panama Canal. The CAAWT ruled in favor of the environmental groups. Still, the decision was ineffective since the CAAWT is not a body recognized by the international community, and therefore its decisions are not binding.
V. The International Court of Justice: An Option to Fight the Transport of Nuclear Waste Through the Caribbean
Given the failure of the strategies employed by the Caribbean States, it is evident that they should consider other options, such as the ICJ, which has the power to stop the passage of nuclear waste through the Caribbean. As we have explained, a series of requirements must be met for the Caribbean States to bring a claim for violations of UNCLOS before the ICJ. First, there must be an actual dispute. Second, the claimant and the respondent must be members of UNCLOS. Third, the parties must agree to submit to the jurisdiction of the ICJ. Finally, these claims must be filed by States and not by non-governmental organizations or private groups.
Let’s apply the rules discussed above to the following example: Say that a British ship carrying nuclear waste wants to sail through the Mona Passage. In that case, the Dominican Republic, being a party to UNCLOS, can file a claim at the ICJ against the UK, also a party to UNCLOS, to prevent the passage of such a vessel through its territorial waters. The Dominican Republic could outline an argument based on Article 192 of UNCLOS as it establishes that States must protect and preserve their marine environment, which according to the South China Sea award, should be interpreted in such a way as to protect the marine environment from future damage. The argument could also include article 194, which provides that States must take all measures necessary to prevent, reduce and control marine environment pollution from any source, using the best practical means. Therefore, based on the South China Sea award, which established that the obligation to protect should be interpreted to avoid future damage, it is possible to develop an argument that would persuade the ICJ to rule against the transport of radioactive material through the territorial waters of Caribbean States, even if no damage has been caused to the marine ecosystem.
Caribbean States do not have the economic or political power of countries such as the U.K. or France. However, this does not mean they are unprotected and must endure violations of their environmental, human, and sovereignty rights. The ICJ is an option that Caribbean countries should consider for the sake of protecting their marine ecosystems and rights. Since the 1980s, there has been an increase in cases brought to the ICJ by countries with less economic development, due in part to the ICJ’s capacity to serve as a “platform for peaceful negotiations between states that seek its assistance in dispute resolution or advisory opinions, regardless of economic and military standing.” For example, Vanuatu, a South Pacific Ocean Nation, is requesting an advisory opinion from the ICJ, which is another mechanism available to the ICJ to issue its pronouncements besides Judgements in contentious cases. They expect that the advisory opinion will provide “an authoritative interpretation of states’ rights and obligations, which, they believe, will lead states to take more ambitious action on climate change.” With this request, Vanuatu hopes to protect the rights of present and future generations from the impacts of climate change.
Even though the ICJ has no enforcement mechanisms, its pronouncements “have generally been widely received as authoritative explications of international law,” and has played a “fundamental role in the prevention and pacific settlement of disputes between States, because of its great authority in the international community as a whole.” Therefore, Caribbean nations should get organized to seek the ICJ’s intervention, as it could change the current landscape of marine environmental protection in the Caribbean and the transport of nuclear waste.
* J.D. Magna Cum Laude, University of Puerto Rico, Río Piedras, School of Law, 2022. I would like to thank Professor Luis E. Rodríguez Rivera for his insightful guidance during the course International Ocean Law and for assistance in drafting this note. Also, I appreciate Elaine Tornés Blanco’s assistance in the editing process. This note was completed on June 18, 2022.
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 Id. at 373-74.
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 Southern Bluefin Tuna (Nos. 3 & 4) (New Zealand v. Japan; Australia. v. Japan), Case Nos. 3 & 4, Order of Aug. 27, 1999, 3&4 ITLOS Rep. 280, 285-86.
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 Id. at 186.
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 See U.N. Convention on the Law of the Sea U.N. TREATY COLLECTION, https://treaties.un.org/pages/showdetails.aspx?objid=0800000280043ad5 (last visit February 28, 2023) (listing all the treaty participants and their legal status regarding the U.N. Convention on the Law of the Sea).
 U.N. Convention on the Law of the Sea art.192, Dec. 10, 1982, 1833 U.N.T.S. 397.
 See S. China Sea Arb. (Phil. v. China), PCA Case Repository 2013-19, (Perm. Ct. Arb. 2016) (where in paragraph 941, the Tribunal considers it well established that Article 192 imposes a duty on State Parties which extends to both protection of the marine environment from future damage and preservation in the sense of maintaining or improving its present conditions).
 U.N. Convention on the Law of the Sea art. 194.
 RODRIGUEZ-RIVERA, supra note 2, at 169.
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