CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ MARINE MIGHT: EXPLORING THE LEGAL COMPLEXITIES SURROUNDING … Rautenbach, Tonhauser, and Wetherall also pointed out the Joint Convention’s lack of legal rights or protection for “transit states”. According to them, the drafters of the Joint Convention believed no new legal rights were required for transit states. 57 However, Article 27(1)(i)-(v) specifies several obligations for Contracting Parties, stipulating that transboundary movement through transit states must adhere to international obligations pertinent to the type of transport used. Safety analysis underscores the need for a regulatory overhaul when transporting a fuelled nuclear power plant. The intricacies of the nuclear programme are too substantial to be left to chance. Whether or not FNPPs are provided for under existing framework, safety must take precedence. Security The two primary objectives of nuclear security are to prevent the theft of nuclear material and radiological sabotage. For FNPPs, this is more complex than traditional land-based reactors. This is so because FNPPs are embedded with storage for both fresh and spent fuels. The key legally binding international instruments concerning the security of nuclear materials include the Convention on the Physical Protection of Nuclear Material (CPPNM) 58 and its Amendment. 59 The CPPNM established physical protection measures solely for the international transportation of nuclear material, while the Amendment broadens its coverage to include nuclear materials used domestically, stored, and transported. Article 2 of the CPPNM delineates the Convention’s scope to encompass all nuclear facilities, nuclear material, and nuclear transports, other than those facilities, materials, or transports used for military purposes. The essential question is whether FNPPs qualify as a “nuclear facility”. In the Convention’s terminology, a nuclear facility is defined as: ‘any equipment, installation, or plant that stores or uses nuclear material in any way, including but not limited to the use for production, enrichment, separation, or other processing of nuclear material, the production of energy through nuclear fission, or research on or with nuclear material’. 60 There is a consensus that the definition of a nuclear facility under the CPPNM is sufficiently broad to encompass an FNPP. However, some scholars believe that classifying an FNPP as a nuclear facility may depend on changing circumstances. Fialkoff argued that when an FNPP moves between the supplier state and the host state, the fuel and the reactor should not be treated as a nuclear facility but as “cargo” under the INF Code. When the host state receives the FNPP in its jurisdiction and connects it for power generation, it transitions from “cargo” to a “nuclear facility”. Fialkof f also argued that while the FNPP is in transit as cargo, the manufacturing state is responsible for its security. However, when the FNPP arrives at its destination, the host state takes over security responsibilities. 61 One issue with Fialkoff’s arguments is his classification of an FNPP as “cargo” rather than a “reactor”. Furthermore, this classification may only be suitable in certain situations and could depend on specific 57 RAUTENBACH, J., TONHAUSER, W. and WETHERALL, A. Overview of the International Legal Framework Governing the Safe and Peaceful Uses of Nuclear Energy – Some Practical Steps (Nuclear Energy Agency and International Atomic Energy Agency 2006) 210. 58 Convention on the Physical Protection of Nuclear Material 1987. 59 Amendment to the Convention on the Physical Protection of Nuclear Material 2005. 60 Convention on the Physical Protection of Nuclear Material 1987, Art. 1(c) and (d). 61 FIALKOFF, M., R. ‘The Floating Chameleon: Floating Nuclear Power Plants and the Nexus of Maritime and Nuclear Security Law’ (2020) 51 Journal of Maritime Law & Commerce 2.

263