CYIL vol. 15 (2024)

EZEKIEL ARCHIBONG variables. For example, if an FNPP is transported without fuel from the supplier state to a host state, it might be classified as cargo. However, suppose the FNPP is transported with spent nuclear fuel (SNF); in that case, it may not qualify as cargo under the INF Code because of the requirement that radioactive material must be in “packaged form.” 62 It is not sure if the fuel storage in an FNPP is in “packaged” form. The IAEA has undertaken to produce a ‘tailor-made solution to help national authorities regulate a new class of nuclear power reactors’. 63 The IAEA Report acknowledges that the security of FNPPs is distinct from fixed-site facilities due to additional complexities during transport. However, the IAEA concludes that existing nuclear security guidance remains valid for “known” concerns related to emerging nuclear technologies. The keyword is “known”. ‘The fact of the matter is that you don’t know what you don’t know,’ said a Senior Nuclear Security Officer at the IAEA. The IAEA asserts that the existing guidance is adequate and internationally recognized for FNPPs’ security. 64 However, the IAEA’s assertion that new guidance is only required when a new issue arises appears contradictory, given the novel nature of FNPP security concerns. Precautionary measures and preventive steps should be taken to avoid potential nuclear accidents. Lysenko, Bedenko, and Dallnoki-Veress support the IAEA’s position and emphasize that the recommendations and guidance in the IAEA Nuclear Security Series should be fully complied with, as they outline measures for achieving and maintaining an effective security regime. 65 However, the IAEA series is not legally binding; it merely serves as guidance. There is a need for more comprehensive binding rules for the regulations of FNPPs to halt the endless debates and speculations surrounding the technology. Another issue to consider is the perceived threats by transit states in the transportation or deployment of FNPPs in their territories. The deployment of FNPPs in disputed waters, as exemplified by China’s plans in the South China Sea, raises concerns amongst its neighbors. 66 There is, therefore, a need to evaluate the potential security issues and their effects on navigation safety and the marine environment. 67 The CPPNM acknowledges the need for special arrangements among the involved states in FNPP transportation, with jurisdictional limits established under international maritime law. In Articles 4.3 and 4.4, the Convention states that when moving through international waters, such transport must meet the security standards of the transit state or provide assurances that the nuclear material will be protected during transit. According to the IAEA Report, states are expected to conclude agreements at bilateral or multilateral levels concerning FNPP transport operations covering trans-border crossings and shipments through international waters or land. 68 In the Pulp 62 International Code for the Safe Carriage of Package Irradiated Nuclear Fuel, Plutonium, and High-Level Radioactive Waste on Board Ships 1999, Chapter 1(3). 63 BROUSSARD, E. accessed 11 June 2024. 64 International Atomic Energy Agency, Legal and Institutional Issues of Transportable Nuclear Power Plants: A Preliminary Study (International Atomic Energy Agency, 2013). 65 LYSENKO, M. N., BEDENKO, V. M. and DALLNOKI-VERESS, F. ‘Legal Regulations of Floating Nuclear Power Plants: Problems and Prospects’ (2019) 3 Moscow Journal of International Law 57. 66 VIET PHUONG NGUYEN, ‘China’s Planned Floating Nuclear Power Facilities in the South China Sea: Technical and Political Challenges’ (2018) Maritime Issues. 67 Ibid. 68 International Atomic Energy Agency, Legal and Institutional Issues of Transportable Nuclear Power Plants: A Preliminary Study (International Atomic Energy Agency, 2013).

264