LAW AND PRACTICE
OF INTERNATIONAL NUCLEAR TRANSPORT
WG 7 Report to the INLA Congress Buenos Aires, 2014
------------------------------------------------------------------------------------------------------------------Odette Jankowitsch - Prevor, Chair WG7, Vienna, September 2014.
INTRODUCTION
The International Law of nuclear transport has not undergone significant changes since our report to the
Manchester INLA Congress 2012. As concerns the Law of the Sea the major amendments adopted 2005
to the nuclear transport security related Conventions have entered into force since. This applies notably
to the Protocol of 2005 to the 1988 Convention for the Suppression of Unlawful Acts against the Safety
of Maritime Navigation (SUA Convention), and the connected Protocol of 2005 to the Convention for the
Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf. The
2005 Amendment of the CPPNM , however, is still not in force being a victim of both the high number of
States Parties – quasi universality - of the CPPNM and the entry into-force provisions of its Article 20
paragraph 2 {requiring two thirds of the States Parties }.
World-wide, regional and national transport of nuclear and radioactive material functions routinely due
essentially to the strict implementation by each State as well as the transport industry concerned of each
specific instrument of this most comprehensive unique net of international binding norms.
Within the framework of the European Union, harmonization and simplification of international
transport {notably for carriers of radioactive materials within the EU, into or out of the EU} could be
achieved if agreement were to be reached and approved by the EU Parliament on all related
administrative procedures in the form of a single registration procedure for the 28 EU States.
Of recent, there seems to be a growing perception of potentially increasing terrorism related dangers as
well as general security risks. This was briefly addressed in the context of the 2014 Nuclear Security
Summit held in The Hague, as follows:
“The parties to the multilateral statement … pledged to secure all their most dangerous Category I radiological
sources under guidelines of the ‘UN’s IAEA (sic). Specifically, they vowed to follow the IAEA “Code of Conduct on the
Safety and Security of Radioactive Sources”.” Source: NTI March 26, 2014
At the international level, however, it is the international nuclear liability regime that appears to be of
prime legal interest to States as well as to the increasingly international nuclear industry. This certainly is
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a consequence of the continuing expansion of nuclear power in emerging economies and in energy
hungry States aiming at energy independence. It may also be due to a perceived concern as to the
adequacy –i.e. transparency, coverage, issues of jurisdiction - of the international liability regime as set
forth in the existing Third Party Liability Conventions. There is also a related interest in transport
insurance.
The subject of nuclear liability in transport is however outside the scope of this Report.
A subject of permanent concern to transport operations of nuclear material is the relentless opposition
by the ‘environmentalist’ movements in many countries to the peaceful uses of nuclear power – though
in less spectacular manner than the earlier blockades of individual transport operations –but not limited
to Europe and frequently expressed by creating legal ‘obstacles’ and impediments or other actions (court
cases.).
This Report covers two different subject matters within the scope of nuclear transport: First the national
domain in as much as relevant material on cases – or country specific legal issues is available. Second, it
provides in the Annex the basics on the applicability of the different transport norms to different
transport operations and, separately, a compendium of all international instruments with some analysis
regarding the nuclear transport related differences between safety and security. .
Material not in the [international] public domain:
General:
At the national level: would it be possible to establish that the number of legal cases against lawful
activities connected with nuclear transport has increased of recent?
E.g. freedom of navigation, openness of sea ports in conformity with the applicable Conventions of the
Law of the Sea?
Participants at this Congress may consider this matter.
With reference to the cases reported at the Manchester Congress in 2012 -relating to German ports:
have these cases been settled?
A comprehensive set of internationally relevant transport case law is still missing!
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ANNEX
SOURCES OF INTERNATIONAL NUCLEAR TRANSPORT LAW
Specific applicability of legal instruments
Nuclear and radioactive material: WHAT is transported?
As set out in INFCIRC/225(Rev.4), the nature of the material transported determines the need for physical
protection and therefore the specific security measures to be applied.
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For the purpose of the IAEA Regulations on the Safety of Radioactive Material, 2005, the
definition of “radioactive material” is based on detailed specific technical criteria: “radioactive
material shall mean any material containing radio nuclides where both the activity concentration
and the total activity in the consignment exceeds the values specified in paras 401-406”.The
Transport Regulations also define “fissile material” in technical terms (in Section II, 22.
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The Code of Practice on the Safety and Security of Radioactive Sources, 2003. Section1.1. defines
“radioactive source”, “disused source” and “orphan source”
The narrower, specific term “nuclear material” is defined differently in the following Instruments
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The IAEA Statute, Article XX 1.2.3 defines ( “special fissionable material”; “uranium enriched in
the isotope 235 or 233”; “source material”)
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IAEA Transport Regulations, 2005, Section II , 222 defines ‘Fissile material”
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CPPNM definitions: Article 1 (a) “nuclear material”, (b) “Uranium enriched in the isotope 235 or
233”, (c) also defines ‘international nuclear transport’. Annex I: “Levels of Physical Protection to
be applied in international Transport of Nuclear Material as categorized in Annex II. Annex II:
“Categorization of Nuclear Material”
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The 2005 CPPNM Amendment not i.f. (“Convention on the Physical Protection of Nuclear
Material and Nuclear Facilities” ) defines in Article 1 (a) “nuclear material”(b) “uranium
enriched in the isotope 235 or 233”, (c) “international nuclear transport”(d) “nuclear facility”(c)
“sabotage”.
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International Convention for the Suppression of Acts of Nuclear Terrorism definitions: Article 1.2
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INRFCIRC/225(Rev4) Categorization of nuclear material: Section 5. 2.1.Categories I,II and III
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Cross references to Nuclear liability Regimes: e.g. Paris Convention on Third Party Liability in the
Field of Nuclear Energy ‘defines: ‘nuclear substances’ Vienna Convention on Civil Liability for
Nuclear Damage, 1963, Article 1(1) (h): defines:”nuclear material”... (..)
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The nuclear material (as defined) is transported1 by what mode?
Transport modal specifications are provided essentially by the recommendatory INFCIRC/225 (as Rev.):
“Requirements for category I nuclear material related to the mode of transport”. (Section 8.3: road, rail,
sea, air). Different (national) security regulations may apply to different modes of transport (rail, road,
air, ship etc.) Different national authorities are involved: e.g. port authorities. Bilateral and multilateral
agreements relating to nuclear transport specify the required conditions in generic or case-by-case terms
(including specified routes, dates, time etc.).
Country of origin, of transit, of final destination: Location of the country: 'landlocked; coastal; island,
specific European Union (Regulations ref. import /export /transit.)
Transport Route: open to agreement by the parties to a given transport operation- unless specific
restrictions apply: Parties may select alternatives.
Transport of nuclear and other radioactive material: transport ‘safety’ vs
transport ‘security’
Nuclear Safety
Safety of transport is regulated primarily by international binding technical norms and Standards
Safety is relevant per se. Safety is however also relevant to the security of transport: First transport
operations have to be in full compliance with the applicable binding safety regulations. Safety is an
essential prerequisite for the security of transport regardless of modes.
Safety is achieved and maintained by compliance by the consignor (compliance assurance given by the
competent authority) with strictly defined technical conditions (regarding packages and containment
systems) to be established from the start of particular transport and maintained to the end of the
international transport- regardless of national or international territories crossed (open sea,
international air space, international rivers, straits etc.), and regardless of the mode of transport: the
IAEA technical transport safety standards are valid for all modes.
At national level: IAEA Regulations2 and Class 7 3(UN) ECOSOC standards– are incorporated into national
laws and adopted as binding norms for carriers through the ICAO, IATA, IMO Conventions, as well as the
rail and road regional transport treaties and agreements.
Note:
The Regulations 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 [defined].” “The objective of the Regulation is to protect
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Note: domestic transport is not included here. Domestic transport is covered by all Conventions as ratified by the States
Parties. (E.g. the CPPNM, the Amended CPPNM and by the Recommendations of INFCIRC/225 (Rev.4).
2
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IAEA Safety Standards - Introduction.)
Class 7: radioactive materials in the UN (9 items) transport related classification of dangerous goods
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persons, property and the environment from the effects of radiation during the transport of radioactive
material. This protection is achieved by requiring:
Containment of the radioactive contents; control of external radiation levels; prevention of criticality; and
prevention of damage caused by heat.”
Nuclear Security
Applicable norms, agreements and arrangements4
Security of international transport of nuclear material is a complex subject
“The Transport of nuclear material is probably the operation most vulnerable to an attempted act of
unauthorized removal of nuclear material or sabotage”5
Security is defined as: “The prevention and detection of and response to, theft, sabotage, unauthorized
access, illegal transfer or other malicious acts involving nuclear material, other radioactive substances or
their associated facilities.”
This definition applies to the concept of nuclear security as a whole and therefore also to the
international transport of nuclear material.
A network of laws, regulations, technical norms, international agreements and treaties is directly or in
certain cases exclusively relevant to the subject. Each of these norms is specific and applies e.g. only to
defined nuclear material (CPPNM), only to a given mode of transport (Air transport: ICAO, IATA), or
exclusively to the legal requirements of a particular State or a group of States (e.g. European Union).
Security of international transport of nuclear material is not regulated in a uniform manner
The scope for general security rules is limited: the common denominator for the transport of all nuclear
and related materials and for all modes of transport is rather small. The specificity of each type of
transport of nuclear material has to be taken into account.
Security does not only depend on the intrinsic properties of the nuclear material transported. Security also
depends on: the law(s) applicable within the national territory (territories) or to the international space
transited by the transport, and
The mode of transport used (international air law, law of the sea, etc.).
The sovereign State from, through or to which nuclear material is transported has the
responsibility for the security of that transport. Nuclear material is transported from the territory
of one State to the territory of another State.
Transport through open seas, international waterways, open airspace, is regulated by
international law.
5
See. INFCIRC/225/Rev (4) page 23 section 8. 81.1
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Transport through coastal zones, lakes or inland waterways belonging to different States is
regulated by treaties and agreements concluded among those States (e. g. Agreement on the
Navigation on the Rhine, Danube Commission.)
States may also conclude agreements on a bilateral or multilateral level regarding the security of
one or several transport operations of nuclear material covering trans-border crossing and /or
shipments through international waters or airspace. (e.g. agreements between two States
regarding international shipment ref. reprocessing, return of radioactive waste –e.g. vitrified
waste -)
Overarching Security norms
The CPPNM : International norms applicable exclusively to the security of transport – in terms of
“physical protection”- of nuclear material are set forth only by the CPPNM ( the 2005 Amendment is
expanded to cover also nuclear installations .) The “physical protection” prescribed by the CPPNM and
the 2005 Amendment, applies to material as defined 6in the CPPNM.
The Recommendations for the physical protection of nuclear material issued as INFCIRC/225 (Rev.4)
contain specific “Requirements for Physical Protection of Nuclear Material during Transport”, covering
also material in use or storage. As a non-legally binding instrument7, this set of recommendations is
applicable to all States that wish to apply it.
Nuclear material is categorized I, II and III for the purpose of the recommendations regarding physical
protection during transport. Specified requirements are established for the three categories of nuclear
material as related to the mode of transport (section 8.3).The categorization is based on the following
approach: “The primary factor for determining the physical protection measures against unauthorized
removal of nuclear material is the nuclear material itself.”
Other Instruments refer inter alia to security of nuclear transport or contain indirectly relevant
provisions, such are:
The International Convention for the Suppression of Acts of Nuclear Terrorism, 2005 (in force) covers
very broadly defined categories of nuclear materials. The Convention defines “radioactive material”;
“nuclear material”; “uranium enriched in the isotope 235 or 233”, “nuclear facility” and “device”. It
covers also a “conveyance” used for transport of nuclear material. ((Article 1.3. (b) .The main purpose of
the Convention is to obligate States Parties to establish as criminal offences under its national law, the
offences set forth in article 28 of the Convention and to make these offences punishable; to prosecute or
extradite alleged offenders, and to cooperate in matters related to the implementation of the
Convention. The Convention does not cover physical protection as such and does not define security of
the materials covered, but is limited to the implementation by the States Parties of specific measures of
national and international criminal law.
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CPPNM: Article 1 (a) “nuclear material”; (b) “uranium enriched in the isotope 235 or 2332
Paragraph c) defines “international nuclear transport”
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INFCIRC/225 (Rev 4) Section 3. 31 “The objectives of the State’s physical protection system should be:”
8
Article 2 1-4, lists the offences committed in relation to the materials defined.
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The International Convention for the Suppression of Terrorist Bombings, 1997, (in force) covers such
acts (i.e. Article 2: discharge or detonate an explosive or other lethal device.) also when committed
during transport (Article 1 2. defines “infrastructure facility” so as to include “communications”.) The
Convention covers “explosive or other lethal device(s) “including [a] weapon or device “capable of
causing damage through the release. of radiation or radioactive material.” The main purpose of the
Convention is to obligate States Parties to enact legislation establishing as criminal offences the offences
set forth in article 2 of the Convention, to establish jurisdiction over these offences, to cooperate among
the States Parties in matters of exchange of information on criminal procedure, or on extradition
procedures of alleged offenders. The Convention is not concerned with matters of physical protection or
the security of nuclear material.
The Code of Conduct on the Safety and Security of Radioactive Sources, 2003, is a non-legally binding
instrument and contains general recommendations only. The Code applies to (the safety and security) of
“radioactive sources”, “disused source(s)”, and “orphan sources “ as defined in section I of the
document.
The above instruments do not refer to any particular mode of transport. Modal regulations have to be
taken into account.
Nuclear Security: modal regulation: maritime transport
The 2005 Amendment of the Convention on the Suppression of Unlawful Acts against the Safety of
Maritime Navigation (1988), and the 2005 Protocol regarding the Suppression of Unlawful Acts against
Fixed Platforms (1988)- (in force )-, adopted under the auspices of IMO, broaden coverage so as to
include nuclear materials in peaceful and non-peaceful uses.
The main original purpose of these Instruments is to ensure that appropriate action is taken against
persons committing unlawful acts against ships (and fixed platforms). Offences include seizure of ships
by force, acts of violence against persons on board ships, and the placing of devices on board a ship that
are likely to destroy or damage it. The Convention obligates States Parties to make such crimes
punishable under their national laws, to establish jurisdiction and to prosecute or extradite alleged
offender. The Convention also provides for specific modes and detailed procedures of cooperation
among the States Parties.
The amended Convention and Protocol cover (article 1 Definitions) notably “BCN weapons”; “nuclear
and other explosive devices”, “toxic chemicals and “precursors”. The Instruments list nine Conventions
pertaining to the domain of anti-terrorism legislation (and the CPPNM).
Some Conclusions: scope for international co-ordination
Contrary to the domain of nuclear transport safety, the security of transport of nuclear material is not
readily adapted to open international exchange of data and information.
Confidentiality plays a special, essential role (CPPNM and the 2005 Amendment provide specifically for
confidentiality rules).
However:
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The establishment of general transport security norms of universal applicability may not be a realistic or
even a useful objective, each type of nuclear or radioactive material and each mode of transport carry
specific security risks and require specific security norms and rules.
A more pragmatic step-by-step approach – mode and material specific - might be more conducive to
strengthen international cooperation. This would also allow including the new, open ended
arrangements among like-minded States9
A first step might be to break down the categories of nuclear material transported according to their
requirements in terms of security (technical barriers, rules, regulations etc.) .The aim is to establish
applicable security norms within a category of material transported.
Security of transport of sources- where the main problem today appears to be cases of denial of
shipment -is an entirely different subject from sea transport of e. g industrial nuclear equipment, spent
fuel or waste products.
At the same time the existing separations by transport modes needs to be maintained for purposes of
elaborating nuclear security recommendations or guides.
A multi-disciplinary approach would seem to be required, encouraging participation of the national and
international bodies concerned with the transport of nuclear material as well as of the – again- national
and international stakeholders10 (industry, transport operators, etc.)- Among the intergovernmental
organizations concerned that ought to be associated are notably: the IMO, ICAO (and IATA), the UN
(UNODC), INTERPOL and regional organizations like the EU (Commission), Europol, and regional rail/
road, inland waterways bodies.
TRANSPORT OF NUCLEAR MATERIAL: SOURCES of LAW
Modal Law 1. Transport of nuclear material by sea
UNCLOS (United Nations Convention on the Law of the Sea) 1982. Relevant provisions: Part II
Territorial sea & contiguous zones-Article 17, 19:” right of innocent passage”. Article 22, 23: “foreign
nuclear powered ships and ships carrying nuclear and other... dangerous substances- Obligation to
observe “special precautionary measures”.Art.192 Protection of marine environment
SOLAS (Safety of Life at Sea) Convention, (1914)1974, refers to the International Maritime Dangerous
Goods–IMDG-Code, (IMO +SOLAS unified code) which adopts the IAEA Transport Regulations for Class 7
IMO: SUA: Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation,
1988, as amended by 2005 Protocol and related Protocol 1988, amended 2005 (ref. Fixed Platforms
Protocol)introduce nuclear materials (peaceful and non-peaceful uses) (see above : security norm)
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see below, part (ii) New security related agreements and arrangement
e.g. the WNTI: World Nuclear Transport Institute
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INF Code 1994 (Safe Carriage of Irradiated Nuclear Fuel, Plutonium and High Level Radioactive Wastes in
Flasks on board Ships) developed by IAEA/IMO /UNEP, Mandatory since 2001 under SOLAS.
MARPOL 1973/78 International Convention for the Prevention of Pollution from Ships (annex III covers
indirectly radioactive materials).
Brussels Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear material, 1971
(e.i.f.1975)
Convention on the Prevention of Marine Pollution by Dumping of Waste and other Materials, London
1972, amended 1993.
OSPARCOM, (North East Atlantic) 1992; Barcellona Convention 1976, amended 1995
Modal Law 2. Transport of nuclear material by air
ICAO: International Convention on Civil Aviation, Chicago 1947-(“Chicago Convention”)
Annex 18: definitions of dangerous goods-establishes the international standards and recommended
practices for the safe transport of dangerous goods by air. Standards based on the ECOSOC Expert
Committee and IAEA Regulations for the Transport of Radioactive Material are mandatory.
Chapter 1 of Annex 18 requires States to comply with ‘technical instructions’ for the safe transport of
dangerous goods- Amendment 11 to Annex 17, 2005 ref. Safeguarding international civil aviation
IATA (Transport) Dangerous Goods Regulations requirements by airlines- based on ICAO Technical
Instructions. Full compatibility with the IAEA Transport regulations.
[Note: Problem of denial of air- shipment & loading]
Modal Law 3. Transport of nuclear material by land
Road transport
Note: Inland transport rules are essentially regional
UN/ECE Inland Transport Committee.
•
•
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European Agreement (ECE), ADR,
EU Transport Directives (as amended)
All are aligned on the IAEA Regulations for the Safe Transport of Radioactive Materials
Mercosur/ Mercosul Agreement to facilitate the transport of dangerous goods between
Argentina, Brazil, Paraguay and Uruguay. Consistent with IAEA Safety Series No.6.
NAFTA codification process. Africa (ECA agreements) Asia (ESCAP)
Rail transport
COTIF: Convention Concerning International Carriage by Rail, 1980 amended by Vilnius Protocol (39
States Parties: Europe, ME and North Africa)
RID: Regulations concerning the International carriage of Dangerous Goods by Rail-(1980) applied
through COTIF. Requirements coordinated with the ECOSOC Committee of Experts. Also included in EU
Directive 96/49/EC
Modal Law 4. Transport of nuclear material by inland waterways
Europe:
Revised Convention on the Navigation of the Rhine, Manheim, 1969 + 4 Protocols and Regulations ref. to
carriage of dangerous goods.
Convention concerning the Regime of Navigation on the Danube, Belgrade1948.
European Provisions Regarding International Carriage of Dangerous Goods by Inland Waterways (ADN),
1996, also apply to domestic traffic within the EU. Provisions are aligned with the IAEA Regulations for
the Transport of Radioactive Materials.
Modal Law 5. Transport of radioactive material by post
Universal Postal Union (UPU) Specialized agency of the UN regulates international postal services. UPU
Convention signed 1964 (189 members).
Regulations for Implementing the UPU Convention, 1967
Article 121 concerns the carriage by post of radioactive material. Complies with IAEA Regulations on the
Transport of Radioactive Material. (Special provision: prior consent from competent authority of the
State of origin)
Note: In most States radioactive materials are no longer accepted for transport by postal services
EUROPEAN LAW
Council Directive 2003/117/ EURATOM of 20 November 2006 on the Supervision and Control of
Shipments of Radioactive Waste and Spent Fuel. Official Journal L337, 05/12/2006 p. 0021 -0032
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Other relevant international instruments
Geographical limit: prohibition of transport of nuclear materials (and disposal of wastes):
Antarctic Treaty, 1959
Comprehensive Nuclear-Test-Ban Treaty (adopted 1995, UNGA Res. 50/245./Treaty n. i.f.)
Regional Nuclear Weapon-free Zone Treaties
{Latin America: Tlateloco, 1967; South Pacific: Rarotonga, 1985; Southeast Asia: Bangkok, 1995; Africa:
Pelindaba, 1996; Central Asian Nuclear Weapon-Free Zone Treaty, 2006}
“Convention on the Ban of the Import of Hazardous Wastes into Africa and on the Control of their Transboundary Movements within Africa, Bamako, 1991 (not i. f.)
{Convention on the Physical Protection of Nuclear Material,1979, Amendment of the CPPNM, 2005 (not
i.f.)
RELEVANT INSTRUMENTS: Nuclear Safety
IAEA

Regulations for the Safe Transport of Radioactive Material –2005 Edition Safety Requirements no. TS-R111Do not cover the security of transport
 CPPNM
 2005 Amendment of the CPPNM
 Joint Convention on the Safety of Radioactive Waste Management and the Safety of Spent Fuel
Management
Covers (safety of) Trans-boundary movement in article 27 only: No reference to security


International Nuclear Civil Liability Regime
Question of nuclear insurance against acts of terrorism is a separate issue
Code of Conduct on the Safety and Security of Radioactive Sources, 2004 Security related in general terms:
Non-binding guidance document.
EUROPEAN UNION

.
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Council Directive 2006/117/EURATOM of 20 November 2006 on the Supervision and Control of Shipments
of Radioactive Waste and Spent Fuel.
Applies to trans-boundary shipments of radioactive waste or spent fuel whenever the country of origin or the
country of destination or any country of transit is a Member State of the European Community. The Directive
does not cover security
INTERNATIONAL (MODAL) LAW OF TRANSPORT
Law of the Sea
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SUA Conventions 2005
SOLAS Convention, 2002 Amendment adopted by Conference of SOLAS States Parties. New measures
regarding security of navigation
ISPS Code adopted (International Code for the Security of Ships and Port installations)
UNCLOS, (United Nations Convention on the Law of the Sea) 1982 relevant provision: Part II Territorial
sea & contiguous zones-Article 17, 19: “right of innocent passage”. Article 22, 23: “foreign nuclear
powered ships and ships carrying nuclear and other. dangerous substances”-Obligation to observe “special
precautionary measures” Art.192 Protection of marine environment.
SOLAS (Safety of Life at Sea) Convention, (1914) -1974,refers to the International Maritime Dangerous
Goods–IMDG-Code, (IMO +SOLAS unified Code) which adopts IAEA Transport Regulations for Class 7
IMO: SUA: Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation,
1988 as amended by 2005 Protocol, and related Protocol 1988, amended 2005 (ref. Fixed Platforms
Protocol) introduce nuclear materials (peaceful and non-peaceful uses)
Law of Civil Aviation and Air transport:
 See ICAO and IATA

Law of Road Transport ADR: Regulations concerning the International Carriage of Dangerous Goods by Road, 2005
AND: European Agreement Concerning the International Carriage of Dangerous Goods by Inland Waterways
Law of Rail Transport: COTIF Convention Concerning International Transport by Rail, 1980 amended 1999 OTIF:
Intergovernmental Organization for International Carriage by Rail
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