介绍:
(c) The contentious issue of transit States. Article 27 also mentions transit States. Paragraph 1(ii) stipulates that "transboundary movement through States of transit shall be subject to those international obligations which are relevant to the particular modes of transport utilised". This provision was much debated. The majority of the delegations to the Group of Experts considered that since several
technical regulations already apply to the transport of radioactive materials, including waste, it was not appropriate to address this matter in detail in the text of the Joint Convention.
Paragraph 1(ii) of Article 27 is also closely linked to the issue of the identification of the rights of transit States. More precisely, a choice had to be made from three possible procedures: the prior consent of transit States, simply notifying/informing transit States, or taking no particular step in relation to those States before the transfer. Four proposals were submitted to the Diplomatic Conference in charge of adopting the text of the Joint Convention. The proposals requested, directly or indirectly, the prior consent of and/or notification to transit States. In the end, none of these proposals was endorsed and the text as it stands now contains no reference to either notification or consent.
Article 27.3(i) affirms that public international law should prevail: "Nothing in this Convention prejudices or affects (i) the exercise, by ships and aircraft of all States, of maritime, river and air navigation rights and freedoms, as provided for in international law." This entails that only the rights recognised by existing international instruments are protected during a transboundary movement of radioactive waste. In other words, if, for instance, a ship carrying radioactive waste or spent fuel crossed the territorial waters of another country, the latter could not invoke the right of prior consent or of prior notification since the principle of innocent passage through territorial waters recognised under the law of the sea would prevail. 15
A comparative analysis of this provision with Directive 92/3/Euratom again shows several differences. The Directive makes a distinction between the procedure applicable to movements within the European Union and that applicable to movements outside the Union. On the one hand, during transfers between member States, the country of origin must send an application for authorisation to the country of destination and a request to the country or countries of transit for approval. Transit States must notify their approval or refusal, including the reasons for the refusal, to the country of origin within two months. On the other hand, where the transfer takes place outside the European Union, two different regimes apply. If the waste is imported into the Union, the EU State of destination acts as if it were a State of origin (it has therefore the obligation to authorise the transfer only after the prior consent of transit States which belong to the Union). Surprisingly, if the waste is exported from the Union, transit States are not mentioned at all (therefore there is no obligation to receive prior consent, nor to notify transit States in advance of the passage of radioactive waste through their territorial waters or airspace).
(d) Reasoned assessment. While comparative analysis of the Basel Convention and the Joint Convention shows that transboundary movements of hazardous waste are subject to a more demanding regime than shipments of radioactive waste and spent fuel, this difference in regime is explained largely by the political context in which the Basel Convention was framed. The 1980s were affected by scandals connected with the discovery of major flows of toxic chemical wastes to
developing countries, and in particular to the African Continent The Organisation of African Unity (OAU) therefore played a major role in the negotiations on the Basel Convention, the purpose of which was to set up a legal framework which would reduce the risk of hazardous waste being dumped on the territory of countries not equipped with suitable management techniques. The negotiations for the Joint Convention were held in a much quieter political climate. Instances of dumping of radioactive waste have so far been practically non-existent. 16 Nuclear countries are highly aware of the negative impact that the discovery of suspect practices relating to the shipment of radioactive wastes might have on activities connected with the peaceful use of nuclear energy.
Furthermore, moving beyond a comparison of the Joint Convention and the Basel Convention to refer to the international law applicable, attention should be drawn to another major difference between the two regimes concerning compensation for damage likely to arise during the shipment of hazardous and radioactive waste. The Joint Convention does not mention the concept of nuclear civil liability for damage due to radioactive waste, since the Group of Experts agreed that other international instruments would apply in such cases.
Both in the 1960 Paris Convention and in the 1963 Vienna Convention, 17 the definitions of "nuclear substances" and of "nuclear materials" cover radioactive waste. Consequently, since both Conventions apply to the transport of nuclear substances and materials, the civil liability regime established by the Conventions would come into play for all damage caused during the transboundary movement of radioactive wastes. A similar situation involving hazardous wastes within the meaning of the Basel Convention would remain unsolved at the level of public international law. During the Basel Convention negotiations, in the absence of a compromise among countries, the issue of compensation was postponed to a later stage. Thus Article 12 of the Basel Convention merely recommends the parties to co-operate with a view to adopting a protocol setting out appropriate rules and procedures in the field of liability and compensation for damage resulting from the transboundary movement and disposal of hazardous wastes. In 1992 an ad hoc working group was set up after the entry into force of the Basel Convention and given the task of preparing the protocol. To date, discussions on this additional protocol are not yet concluded.
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