12.1 Introduction
In his opening remarks to the International Atomic Energy Agency’s (IAEA) 2023 Symposium on the Benefits and Challenges to Floating Nuclear Power Plants, Director General Rafael Mariano Grossi acknowledged the active interest by countries in deploying floating nuclear power plants (FNPPs) but cautioned that “safeguards and the international legal and regulatory implications needed to be thoroughly analyzed” in discussions about FNPP deployments (Ashton Reference Ashton2023). The complexity surrounding FNPPs goes well beyond technical designs or applications; rather, the challenges are in their classification and categorization under international law and how international norms – such as those in nuclear law, maritime law, and the law of the sea – apply to the variety of deployment scenarios being considered.
With the deployment of FNPPs beyond territorial waters to support the efforts of the offshore oil and gas industries in decarbonizing their energy needs, an emerging challenge is the relationship between nuclear nonproliferation norms and their impact within the exclusive economic zone (EEZ). Under Article 55 of the United Nations Convention on the Law of the Sea (UNCLOS),Footnote 1 the EEZ is defined as “an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.” In his book Building a New Legal Order for the Oceans, Ambassador Tommy Koh explains that one of the outstanding questions relating to the EEZ is its legal status, which has implications for the application of nonproliferation norms such as nuclear security and nuclear safeguards (Koh Reference Koh2020, 324). If the EEZ is an extension of the national jurisdiction of a coastal State, does the coastal State’s nonproliferation framework apply, or is the EEZ akin to the high seas, where the coastal State commands lesser sovereignty, creating a void for nonproliferation norms?
Current international discourse on FNPPs within the EEZ or the high seas focuses on their transit through these zones from a supplier State to a host State and the transport security considerations for ensuring that nuclear material is neither stolen nor sabotaged. Insofar as prior analysis has highlighted the intersection of the law-of-the-sea principles of innocent passage and freedom of navigation for FNPPs through different maritime zones, these analyses do not address deployment and long-term operation within the EEZ and the application of nuclear nonproliferation norms of the host or supplier State (Bernini Reference Bernini, Kraska and Park2022, 109). Deploying FNPPs in the EEZ raises questions about their regulation under various nuclear law frameworks, including the imposition of the appropriate nuclear security regime and appropriate nuclear safeguards obligations. Fundamental to this is the question of jurisdiction, control, and sovereignty over the FNPP outside the territorial waters of the hosting coastal State and the intersectionality of nuclear law with that of the jurisdictional considerations embedded within maritime law and the law of the sea regime.
FNPP deployment in the EEZ or the high seas puts the FNPP squarely at the intersection of overlapping regimes, where concepts of jurisdiction, control, territorial integrity, and sovereignty are fundamental, driving the inquiry about which regulatory framework applies. For example, with respect to the application of nuclear security, under the Amendment to the Convention on the Physical Protection of Nuclear Material (ACPPNM),Footnote 2 Fundamental Principle A of Article 2A(3) stipulates that “the responsibility for the establishment, implementation and maintenance of a physical protection regime within a State rests entirely with that State.” From this provision, the State in which nuclear materialFootnote 3 is located is responsible for establishing and maintaining a nuclear security regime, including effective regulatory controls such as licensing, inspections, enforcement, and the promulgation of regulations to support the nuclear security regime (Stoiber et al. Reference Stoiber, Baer, Pelzer and Tonhauser2003, 28–31). Similar to nuclear security, nuclear safeguards – another pillar of nuclear law – require States to establish controls over nuclear materialFootnote 4 to ensure that they are using the material for peaceful purposes. Under the Basic Undertaking described in IAEA Information Circular 153 (Corrected) (INFCIRC/153 (corr.)), which serves as the basis for many of the Comprehensive Safeguards Agreements (CSAs) between the IAEA and IAEA member States, an agreement “should contain, in accordance with Article III.1 of the Treaty on the Non-Proliferation of Nuclear Weapons, an undertaking by the State to accept safeguards, in accordance with the terms of the Agreement, on all source or special fissionable material in all peaceful nuclear activities within its territory, under its jurisdiction or carried out under its control anywhere” (IAEA 1972, 1).
Like the ACPPNM, the Basic Undertaking in INFCIRC/153 (corr.) and CSAs with the abovementioned provision introduce a jurisdictional question, explicit in that it identifies territory, jurisdiction, or control anywhere within the contracting State. This reinforces the question posed by Koh about whether the EEZ is an extension of a coastal State’s national jurisdiction (and, therefore, safeguards would apply in the EEZ). When these regimes intersect with the flag State jurisdiction for vessels and the ambiguity about the extent of control for coastal States in the EEZ, novel questions arise about who and under whose regulatory frameworks FNPPs operate.
This chapter explores the alignment of UNCLOS with the principles of maritime law – namely, the relationship between UNCLOS, flag State jurisdiction, and nonproliferation norms for the deployment of FNPPs in the EEZ. Applying prior work that establishes FNPPs as “installations” when fixed (Bernini Reference Bernini, Kraska and Park2022, 129), such installations would be regulated under the host coastal State’s regulatory framework, including its nuclear security and nuclear safeguards requirements.Footnote 5 Under this interpretation, coastal States would have responsibility for ensuring that the highest standards of nuclear security and safeguards are applied to deployed FNPPs while maintaining their commitment to their obligations under the law of the sea. FNPP deployment would raise novel operational questions, but, ultimately, FNPPs deployed to support offshore oil and gas production would be viewed as installations when fixed, regardless of their vessel status, under both nuclear law and the law of the sea, enabling the coastal State to implement robust nuclear security and safeguards requirements.
12.2 Deployment of FNPPs Outside Territorial Waters
At the time of writing, the only currently operating FNPP is the Akademik Lomonosov, located in Pevek, Russia; however, before the construction, deployment, and commissioning of the Akademik Lomonosov, discussions about the siting of FNPPs both within and beyond territorial waters took place in the early 1970s. The same questions regarding the law of the sea are being asked today as were asked back then. In 1974, a study conducted by Oak Ridge National Laboratory (ORNL) and the University of California, Los Angeles (UCLA) investigated the initial feasibility of the construction and operation of an FNPP within the 3-mile territorial limit of the US (Hammond and Okrent Reference Hammond and Okrent1974, 136). The ORNL and UCLA studied different platform configurations for FNPPs, including barge-type structures, semisubmersible oil-drilling platforms, and multipoint mooring structures, as well as the various safety and geographic considerations for their deployment (Hammond and Okrent Reference Hammond and Okrent1974, 133).
Additionally, the ORNL and UCLA study surveyed the domestic and international legal landscape for the deployment of FNPPs within and beyond territorial waters (Hammond and Okrent Reference Hammond and Okrent1974, 136). This work recognized that the siting of an “offshore nuclear power station” would fall into “different classes depending not on the depth of the water but on how far the station is from the coastline” (Hammond and Okrent Reference Hammond and Okrent1974, 136). The analysis parsed the jurisdictional issues with siting an FNPP within State waters, which are those waters from the coastline to approximately 3 nautical miles, and the overlap with federal jurisdiction (Hammond and Okrent Reference Hammond and Okrent1974, 136). This work went beyond 3 nautical miles to address the federal jurisdiction controls out to 12 nautical miles (Hammond and Okrent Reference Hammond and Okrent1974, 136). Beyond the 12-nautical-mile mark, the authors identified ambiguities within both US law and the international law of the sea framework at the time for understanding the rights and responsibilities involved with FNPP deployment (Hammond and Okrent Reference Hammond and Okrent1974, 136). At the time, their analysis did not identify specific nonproliferation frameworks, except for acknowledging the need to protect against possible sabotage of the FNPP (Hammond and Okrent Reference Hammond and Okrent1974, 136). When the ORNL and UCLA conducted their study in 1974, neither the Convention on the Physical Protection of Nuclear Material (CPPNM)Footnote 6 nor the Non-Proliferation Treaty (NPT)Footnote 7 existed. The sole concern outside of nuclear safety was the identification of a possible sabotage attempt against the nuclear power plant (Hammond and Okrent Reference Hammond and Okrent1974, 136).
Around the same time as the ORNL and UCLA study, the US Nuclear Regulatory Commission considered a licensing application for the construction of FNPPs off the coast of Jacksonville, Florida, with subsequent siting and deployment of FNPPs off the coast of New Jersey (OTA 1976, 197). In 1976, the Office of Technology Assessment (OTA) reported on the US Nuclear Regulatory Commission’s analysis and the siting, deployment, and regulatory considerations for an FNPP deployment off the coast of New Jersey, specifically identifying that the power plant will be inside the 3-nautical-mile limit. This would place it fully under federal and State jurisdiction, consistent with the findings of the ORNL and UCLA study (OTA 1976, 207). The OTA study did conclude that the FNPP would be segregated from major shipping traffic, specifically the Atlantic coastal shipping lanes (OTA 1976, 207).
The ORNL and UCLA study and the OTA analysis focused primarily on the domestic deployment of FNPPs in the US. In contrast to the OTA study, which focused solely on the siting of the FNPP within the 3-nautical-mile limit, the ORNL and UCLA study acknowledged the different maritime zones, drawing the conclusion that further research was needed to understand FNPP deployment in international waters (Hammond and Okrent Reference Hammond and Okrent1974, 136). In contrast, Marlowe Blake’s Reference Blake1978 analysis of FNPP deployment on the high seas considers FNPPs deployed in the high seas and the implications of the international law of the sea, including environmental protection and fisheries management (Blake Reference Blake1978, 197–199). Blake begins with the New Jersey deployment of a possible FNPP but then examines the possibility of FNPPs in the high seas beyond New Jersey, though the context and rationale for the extension of FNPPs to the high seas only went so far as to postulate: “Is FNPP deployment considered a ‘reasonable use’ of the High Seas?” (Blake Reference Blake1978, 197–199). Blake’s legal analysis for FNPP deployment and the reasonableness of such use of the high seas are discussed later. This early analysis highlights that such questions were already being asked and are resurfacing today.
Although prior and current applications include electrical power production for communities and district heating, FNPPs are also being considered to support decarbonization efforts across multiple sectors, including the offshore oil and gas industry (World Nuclear News 2023). As part of its 2021 study “Rethinking Deployment Scenarios for Advanced Reactors,” the Electric Power Research Institute (EPRI) analyzed the use of FNPPs in various offshore production supply chains, including ammonia production, commercial airline fuel production, desalinization of water, and support to the offshore oil and gas industry (EPRI 2021). Focusing on offshore oil and gas production, EPRI’s report highlighted the modularity of the oil and gas industry infrastructure, and this modularity increases the possibility for interfacing and integrating with small modular reactors or FNPPs that could be deployed to support offshore oil and gas extraction (EPRI 2021, 8). Additional research by Bernini confirmed EPRI’s analysis that FNPPs could be used to support offshore oil and gas extraction (Bernini Reference Bernini, Kraska and Park2022, 109). Specific examples cited by Bernini include the 2014 memorandum on the construction of an FNPP between Rosatom subsidiary Rosatom Overseas and China’s National Nuclear Cooperation (Bernini Reference Bernini, Kraska and Park2022, 114, citing World Nuclear News 2016). Additionally, Zou et al. demonstrated the configuration for deployment of an FNPP with an offshore oil rig, including the stand-off distance and safety distances between the FNPP, the oil rig, and associated infrastructure nearby (Zou et al. Reference Zou, Gong, Song, Zhao and Zhang2021). However, in their analysis, they noted that there are no international regulations for the emergency planning or restricted areas surrounding marine reactors (Zou et al. Reference Zou, Gong, Song, Zhao and Zhang2021). Consistent with such analysis, China’s General Nuclear Power Group signed a strategic cooperation agreement with China National Offshore Oil Corporation in 2016, proposing to use FNPPs to support China’s oil exploration in the Bohai Sea and the South China Sea (Bernini Reference Bernini, Kraska and Park2022, 114–115; see also Peachey Reference Peachey2016).
Because of the strong emphasis on decarbonization across multiple sectors, FNPP deployment outside territorial waters may become more prevalent. FNPP may support activities including oil and gas extraction, power generation to remote communities such as in the Arctic and remote islands, and the desalination of water. The use of FNPPs beyond a coastal State’s territorial waters revisits the questions posed by the ORNL and UCLA study, as well as Blake’s cautionary words about whether they represent a reasonable use of the high seas (Blake Reference Blake1978, 199; Hammond and Okrent Reference Hammond and Okrent1974, 136). This issue leads to further questions about the classification and categorization of FNPPs within the international legal frameworks, for both nuclear law and maritime law, leading to what has been described as lacunae across multiple legal domains (Steding Reference Steding2004).
12.3 Gordian Knot of Defining What Is an FNPP
FNPPs have been in existence in one form or another for the past fifty years, yet the international community has yet to achieve consensus about what comprises an FNPP. The challenge of defining what an FNPP is sits at the center of the proverbial Gordian knot of nuclear law and maritime law, with each legal domain bringing ambiguity to the discussion. For example, within the IAEA Nuclear Safety and Security Glossary (IAEA 2022a), there is no formal definition of a “nuclear power plant.”Footnote 8 Likewise, within maritime law and UNCLOS, the terms “ship” and “vessel” are used interchangeably, with no consensus on what constitutes a vessel (Walker and Noyes Reference Walker and Noyes2002).
In the current international discussion, identifying whether an FNPP is a vessel, cargo, or a facility, or some combination of the three, will instruct the rights, responsibilities, and corresponding nonproliferation measures associated with FNPPs and their operation under the law. However, even saying “the law” is ambiguous because the FNPP will operate across and within multiple legal regimes, including nuclear law, maritime law, and the law of the sea regime. What Bernini describes as “legal conundrums” for the status of FNPPs under nuclear and maritime law, in fact, presents foundational challenges to their deployment and operation within the UNCLOS framework (Bernini Reference Bernini, Kraska and Park2022, 120–121). Specific to nuclear security and nuclear safeguards, determining whether the FNPP is a vessel, or an installation, would add additional complexity about who is in control of the FNPP from the perspective of flag State jurisdiction and the applicable legal and regulatory framework.
FNPPs do not operate in a vacuum or in isolation from the greater discussion occurring on advanced nuclear reactors. In 2013, the IAEA explained, in its report Legal and Institutional Issues of Transportable Nuclear Power Plants: A Preliminary Study, that FNPPs are part of a larger class of small modular reactors known as transportable nuclear power plants (TNPPs; IAEA 2013a). In that report, the IAEA defined a TNPP as “a factory manufactured, transportable and/or relocatable nuclear power plant which, when fueled, is capable of producing final energy products such as electricity, heat, and desalinated water” (IAEA 2013a). Important for this discussion is a subsequent sentence of the definition developed by the IAEA: “The TNPP is physically transportable but is not designed to either produce energy during transportation or provide energy for the transportation itself” (IAEA 2013a, emphasis added). This second element of the definition highlights that the reactor on TNPPs, including on FNPPs, is for energy production, not for the structure itself: the reactor is intended to support shoreside or other activities.
12.3.1 Evolution of the FNPP: From Breakwaters to Barges
One of the challenges with defining an FNPP is that the designs for FNPPs have evolved over the years. Starting with the MH-1A (more commonly known as the USS Sturgis), the first barge-mounted nuclear power plant in 1966, FNPP designs evolved to resemble land-based nuclear power plants with buildings and freestanding structures (Honerlah Reference Honerlah2014, 3). In the ORNL and UCLA siting analysis for FNPPs, the authors identified five different platform support arrangements for FNPPs: (1) barge structures, (2) semisubmersible oil-drilling platforms, (3) the Mohole type, (4) tension leg platforms, and (5) two-barge assemblies (Hammond and Okrent Reference Hammond and Okrent1974, 133). The 1974 analysis did not define what an FNPP was, but it did identify the safety elements for the operation of the station when deployed within US territorial waters.
Likewise, the 1976 OTA analysis explained the process for constructing the FNPP (OTA 1976, 197–198). According to the analysis, the power plant would be assembled in a shipyard near Jacksonville, Florida (OTA 1976, 197). The plant being developed by Offshore Power Systems at the time would have been a steel barge with a honeycomb frame of watertight compartments (OTA 1976, 197). Mounted on top of the barge structure would be a pressurized water reactor, including steam turbines, generators, and office buildings (OTA 1976, 197). Once construction was completed at the shipyard, the power plants would be towed from Florida to their location off the coast of New Jersey, where they would be sealed in the breakwater, surrounded by concrete caissons (OTA 1976, 198). The supply chain for the Offshore Power Systems FNPP entailed the components being transported from Florida to New Jersey, with its ultimate assembly offshore at the location of deployment. In effect, the barge structures acted as a base for the nuclear reactor and auxiliary structures.
When the 2013 IAEA study on institutional and legal issues for TNPPs was drafted, the report did not comment on the legal status of TNPPs. It did not address the sufficiency or adequacy of either nuclear law or maritime law for FNPPs. During the 2023 IAEA Symposium on the Benefits and Challenges of Floating Nuclear Power Plants, the Russian Federation explained its regulatory framework for licensing FNPPs (Salnikova Reference Salnikova2023, 10). Under Russian law, the licensee needs to acquire a license from the Russian nuclear regulator (Rostekhnadzor) and certificates from the Russian maritime regulator (Rosmorrechflot; Salnikova Reference Salnikova2023, 10). Additionally, the FNPP, under Russian law, is included on the Russian International List of Ships and is registered under the flag of the Russian Federation by the Russian Maritime Register of Shipping (Salnikova Reference Salnikova2023, 10; see also Nikitin and Andreyev Reference Nikitin and Andreyev2011, 1, 10–12). Although the Russian Federation identifies FNPPs as vessels according to Russian law because of their experience with nuclear reactors powering icebreakers via means of propulsion, the international community has not arrived at a consensus for the classification of FNPPs.
The lack of a taxonomy for FNPPs creates a question about which international organization – the IAEA or the International Maritime Organization (IMO) – is responsible for developing appropriate standards and requirements for the operation of FNPPs. Further complicating this is the fact that deployment location of the FNPP would be governed by the law of the sea regime under UNCLOS. This creates a point within three legal domains where the FNPP must be triangulated to understand how it will be governed, but this can only occur after it can be discerned how the FNPP is classified. The following discussion highlights ongoing discussions by the international community with respect to FNPPs and developing a framework for understanding what they are and, subsequently, how they are to be governed.
12.3.2 Possible Classification and Associated Legal Frameworks for FNPPs
This section uses the 2013 IAEA report Legal and Institutional Issues of Transportable Nuclear Power Plants: A Preliminary Study as a starting point for a contemporary analysis on FNPPs and their classification. The IAEA’s report does not address whether an FNPP is cargo, a vessel, a facility, or some permutation of those possibilities. From 2013, the scholarship on the classification of FNPPs slowly began to focus on these possibilities and associated frameworks.Footnote 9 Current work by the IAEA is trying to understand and evaluate the legal and technical impacts of the various possible classifications, with each being reviewed against both nuclear and maritime legal instruments to understand its applicability and alignment with these regimes (IAEA 2023a).
12.3.2.1 FNPPs as Cargo
As a starting point, FNPPs could be classified as cargo, and existing international frameworks under the auspices of the IAEA and the IMO could be applied, namely the IAEA’s Regulations for the Safe Transport of Radioactive Material (commonly referred to as SSR-6 (Rev. 2)) (IAEA 2025) because the FNPP, while transport is not active and in essence, is moving either irradiated or fresh nuclear fuel. Additionally, the IMO provisions found in the International Maritime Dangerous Goods Code (IMDG Code; IMO 2022), made under the Safety of Life at Sea Convention (SOLAS),Footnote 10 would apply coextensively to those recommendations found in SSR-6 (Rev. 2).
If FNPPs are treated as cargo, there are two scenarios for their transport: first, the FNPP superstructure could be transported without the nuclear material on board, with the nuclear material loaded into the reactor when the FNPP is deployed within the coastal State. In this scenario, the FNPP superstructure would not have nuclear material on board, and the nuclear material would be transported separately, which aligns with provisions of national laws applying SSR-6 (Rev. 2) and the IMDG Code, respectively. Alternatively, the second scenario would have nuclear fuel loaded into the FNPP during outfitting, and the FNPP superstructure and fuel would be transported together to the host location. Under that scenario, there are two sub-scenarios to consider. If the fuel in the reactor is unirradiated, this would constitute a fresh fuel shipment and would be transported in alignment with the provisions of national law applying both IAEA and IMO requirements as adopted by the contracting State. However, if the fuel is loaded into the reactor during outfitting and testing, this would present problems aligning with SSR-6 (Rev. 2) and the IMDG Code because the nuclear material is irradiated and not transported in a certified package. This specific scenario was addressed during the IAEA’s 2023 symposium. In its presentation, the IAEA’s Transport Safety Unit explained that SSR-6 (Rev. 1) was designed for the transport of radioactive materials in packages and that FNPPs with irradiated fuel on board were not envisaged by SSR-6 (Rev. 1) or associated guidance (IAEA 2023a). The initial conclusion drawn by the unit head of the Transport Safety Unit was that the transport of fresh and irradiated fuel in-core would not be in a compliant SSR-6 (Rev. 1) package (IAEA 2023a).
Although the IAEA is undertaking ongoing work through a Department of Nuclear Safety and Nuclear Security-wide study about design safety and security considerations for FNPPs, questions persist. The primary concern with applying SSR-6 (Rev. 2) and the IMDG Code is that if loaded into the reactor, the fuel could not be transported in a compliant package and the guides and subsequent national laws would not be applicable. In the alternative, an argument has been made that if the material in the FNPP is not in conformity with national transport safety regulations, the special arrangement provision in SSR-6 (Rev. 2), paragraph 310, could be used (IAEA 2025, 17). Under the special arrangement provision:
Consignments for which conformity with the other provisions of these Regulations is impracticable shall not be transported except under special arrangement. Provided the competent authority is satisfied that conformity with the other provisions of these Regulations is impracticable and that the requisite standards of safety established by these Regulations have been demonstrated through means alternative to the other provisions of these Regulations, the competent authority may approve special arrangement transport operations for a single consignment or a planned series of multiple consignments. The overall level of safety in transport shall be at least equivalent to that which would be provided if all the applicable requirements in these Regulations had been met. For consignments of this type, multilateral approval shall be required. (IAEA 2025, 17)
In their work on developing a risk-informed regulatory framework for microreactor transportation packages, Coles et al. discussed the special arrangement approach and noted that multilateral approval would be required if a special arrangement were to be used for microreactor international transport (Coles et al. Reference Coles, Short, Maheras and Adkins2021, 25). This could be problematic, because all countries where the microreactor – or in this case an FNPP – would transit would need to approve the transit through territorial waters, and such approvals are not guaranteed.
12.3.2.2 FNPPs as Vessels
Because of its experience with nuclear vessels in its icebreaker fleet, the Russian Federation is already classifying FNPPs as vessels. Under Russian law, for an FNPP operating within Russian territorial waters, any possible international voyage of the FNPP would conflict with international maritime law, specifically SOLAS. In its presentation during the FNPP symposium held in 2023, the IMO presented two threshold questions about the applicability of SOLAS to FNPPs (Nironen Reference Nironen2023, 5). First, under regulation 1(a) of Chapter I of the Annex to the Convention, SOLAS would only apply to those ships engaged in an international voyage, with an “international voyage” defined as “a voyage from a country to which the present Convention applies to a port outside such country, or conversely” (Nironen Reference Nironen2023, 5). If FNPPs are constructed and deployed in the same country, then the provisions of SOLAS would not be applicable because an international voyage has not occurred. More specific to the vessel question, regulation 3(a)(iii) of Chapter I provides the scope of application of SOLAS to those ships propelled by mechanical means (Nironen Reference Nironen2023, 6). The IMO representative suggested the following question: “What is the [a]pplication of SOLAS to floating nuclear power plants not propelled by mechanical means (for example, FNPPs towed by tugs)?” (Nironen Reference Nironen2023, 6). This presents a threshold question about whether an FNPP with no means of propulsion other than support by towage would qualify as a vessel for the provisions of SOLAS and whether the Convention’s safety provisions would be applicable.
During the FNPP symposium, the representative from the World Nuclear Transport Institute introduced the proposition that the Code of Safety for Nuclear Merchant Ships, IMO Resolution A.491(XII) (IMO 1981), could be revised to incorporate FNPPs into it as part of a technology-agnostic approach to civilian nuclear maritime applications (Chaplin Reference Chaplin2023, 5). Resolution A.491(XII) is a supplement to Chapter VIII of SOLAS, which outlines the requirements for nuclear ships. Here “nuclear ships” are defined as ships “provided with a nuclear power plant” (Nironen Reference Nironen2023, 11). In contrast to the SOLAS definition, Resolution A.491(XII) defines “nuclear ships” as any merchant ships “the normal mode of propulsion of which is based upon nuclear energy and whose characteristics are those of conventional displacement ships.”
Although the World Nuclear Transport Institute and other organizations are exploring efforts to modernize Resolution A.491(XII) to incorporate FNPPs and the broader framework provided by SOLAS, such analysis should be tempered to consider nonproliferation impacts.Footnote 11 The Resolution is a code for safety. In its current formulation, it does not address nuclear security, with only one provision addressing the security of the ship and the physical protection of the fissile materials (IAEA 2023c, 50). Resolution A.491(XII) neither speaks to broader nuclear security considerations nor references the ACPPNM. It is important to temper any revision of A.491(XII) to acknowledge the mandates of the IMO – namely, that the IMO deals with matters of maritime transport and is mainly involved in the development of international regulations, based on proposals by its member States (Nironen Reference Nironen2023, 2). A revision of the code to include FNPPs could have unintended consequences, such as an implicit bestowment of vessel status on FNPPs and the registration of FNPPs under flag State jurisdiction, presenting unique nonproliferation challenges.
Flag State Jurisdiction and FNPPs.
If FNPPs are classified as vessels, they would enjoy the trappings of being a vessel and they would operate under the flag of the country under which they are registered. Broadly, when a vessel is registered under a flag State, that State grants nationality to the vessel, meaning that the State has “exclusive jurisdiction over the vessel on the high seas to the extent permitted by international law” (Anderson Reference Anderson1996, 140). The reason that vessels are flagged is to ensure that every vessel operating in the maritime domain does so under some regulatory framework or national system of laws (Anderson Reference Anderson1996, 141). Vessels without flags are perceived as dangerous to the international order and as “international pariahs” with no right to navigate freely on the high seas (Anderson Reference Anderson1996, 142).Footnote 12
For the Russian example, the FNPP would be registered as a Russian vessel under the Russian Maritime Register of Shipping and operate accordingly under the laws of the Russian Federation (Salnikova Reference Salnikova2023, 10). The connection of a flag and, by extension, nationality and the protection of the laws of the registering State reinforce the “legal fiction” that vessels maintain a “separate personality,” which, according to Anderson, can be sued in an in rem proceeding in many jurisdictions regardless of ownership (Anderson Reference Anderson1996, 145).
When discussing vessel registration and establishing flag State jurisdiction over FNPPs, there is a nuclear equity that must be considered if FNPPs are granted flag State jurisdiction. Conferral of flag State jurisdiction on an FNPP would link the flag State’s nuclear regime and subsequent obligations, including safety, security, and safeguards, to the FNPP’s operation. When deployed outside the flag State’s territorial waters, flag State jurisdiction would apply, although this may run contrary to the principles of nonproliferation because nuclear security obligations typically apply to the State where the nuclear material resides (ACPPNM, Article 2A(3), Fundamental Principle A). In the 2013 report on legal and institutional issues for TNPPs, the IAEA broached the subject of using bilateral agreements to try and establish long-term framework agreements for TNPP deployments, though the report did not address concerns such as the overlap between flag State jurisdiction and the obligations and responsibilities of coastal States under various nuclear law instruments (IAEA 2013a, 59). The issue of flag State jurisdiction and the creation of a separate personality for FNPPs operating under such flags represent challenges to nonproliferation objectives because, at the core of such objectives, regulatory controls are established by the State where the material is present.
An extension of the vessel discussion applies to the control and jurisdiction of oil rigs. According to Richards, deepwater oil rigs are treated similarly to vessels; they are flagged similarly to vessels, with the flag State having exclusive national jurisdiction over their operation in the EEZ and the high seas (Richards Reference Richards2011, 388). Although FNPPs have been compared to offshore energy platforms, a similar analysis about jurisdiction controls would follow if an FNPP were treated as a deepwater energy platform, with the same rules applying as if the FNPP were treated as a vessel (Richards Reference Richards2011, 388–389).Footnote 13
12.3.2.3 FNPPs as Facilities
A final possibility for the classification of FNPPs would be to classify them as facilities; however, for the purposes of nuclear law, this presents a unique problem because FNPPs are specifically excluded from a basic nuclear law instrument, the Convention on Nuclear Safety.Footnote 14 Article 2(i) of that Convention explicitly defines a nuclear installation as “any land-based civil nuclear power plant under [the contracting party’s] jurisdiction.” The Convention excludes FNPPs because they are not land-based reactors, but the IAEA proposed that in reporting on the safety of other types of civilian nuclear reactors, FNPPs may fall under this as voluntary practice for their alignment to safety principles (IAEA 2023c, 7, citing IAEA 2018a). In a similar presentation, the IAEA’s Office of Legal Affairs explained that for the purposes of nuclear liability instruments, when the FNPP is in a fixed position, whether docked or anchored to the seabed, it would be viewed as a nuclear installation for nuclear liability purposes (IAEA 2023c, 42).
In comparison to nuclear safety and nuclear security, nuclear safeguards define “facility” more broadly, and the reactor alone would be defined as a facility under nuclear safeguards (IAEA 1972, 27). In INFCIRC/153 (corr.), which is titled “The Structure and Content of Agreements between the Agency [IAEA] and States Required in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons,” “facility” is defined as: (a) “a reactor, a critical facility, a conversion plant, a fabrication plant, a reprocessing plant, an isotope separation plant or a separate storage installation”; or (b) “any location where nuclear material in amounts greater than one effective kilogram is customarily used” (IAEA 1972, para. 106). In Section 12.4, the application of nuclear safeguards, specifically the provisions of the Basic Undertaking, highlights the challenges if an FNPP is classified as a vessel for the purposes of maritime law. When the FNPP must be under safeguards, the question arises of whose safeguards obligations apply. This becomes further complicated when the FNPP flag State is a nuclear weapon State (NWS), and the coastal State where the FNPP is operating is a nonnuclear weapon State (NNWS).
12.4 Nonproliferation Norms and Their Role in FNPP Governance under UNCLOS
The principles established under nuclear nonproliferation instruments, including the NPT, CPPNM, and ACPPNM, do not stop at the coastline but permeate through the maritime zones established under UNCLOS. As Laura Rockwood, former section head for Non-Proliferation and Policy Making in the Office of Legal Affairs at the IAEA, explained: “The nuclear non-proliferation regime is a complex of varied and evolving instruments and measures intended to deter and detect the proliferation of nuclear weapons. It includes, inter alia, global and regional treaties on non-proliferation, export controls, [and] physical protection” (Rockwood Reference Rockwood, Nick and Burns2022, 357). Herbach goes further to acknowledge that the “interconnectedness of nuclear security and non-proliferation is clear,” with each being “founded on dealing with the risk of nuclear material being diverted to non-peaceful purposes” (Herbach Reference Herbach2021, 45). The challenge observed with the deployment of FNPPs into the EEZ of coastal States is that the deployment of fixed nuclear installations in these zones expands the application of nonproliferation norms beyond traditional approaches that have primarily focused on the transport of nuclear materials. Through the lens of the law of the sea regime, the EEZ is seeing an intensifying zonation compared to what was previously envisioned under UNCLOS (Ryan Reference Ryan2019, 10170). Included in this intensifying zonation are maritime security and, by extension, national security considerations that begin to pull the EEZ further under a coastal State’s exclusive national jurisdiction (at least in theory; Ryan Reference Ryan2019, 10170).
For FNPPs, there are two questions: How far do the nonproliferation obligations of coastal States reach into the EEZ? And how are nonproliferation obligations balanced with the interests of coastal States if an FNPP is flagged and operating under the nonproliferation requirements of the flagging State? These questions were posed during the IAEA FNPP symposium in November 2023 (IAEA 2023b, 3:55:56). In response, an IAEA representative from the Office of Legal Affairs explained that, with respect to CSAs, it is a “principle of international law, this is an agreement between a state and us, the international organization [IAEA], and territorial scope of application is determined by the state” (IAEA 2023b, 3:56:18). When further elaborating on the jurisdiction considerations in relation to UNCLOS, the IAEA representative explained that “maritime territories are defined in accordance with UNCLOS by the States parties” and that “if a State with a Comprehensive Safeguards Agreement [CSA] decides to operate a TNPP in its territorial waters or contiguous zone, the State must inform the Agency [IAEA] accordingly and provide information on the design and nuclear material used in reactor” (IAEA 2023b, 3:56:26–3:56:34). For the EEZ, the IAEA representative concluded that “it’s for the State to decide [on the EEZ] and the State to take into consideration relevant provisions of the UN Convention on the Law of the Sea of 1982” (IAEA 2023b, 3:57:00).
In its statement, the IAEA identifies the need for the State to identify within the CSA the scope of territorial application for consideration of safeguards and, by extension, nuclear security; however, in both cases, FNPP deployment and the extension of nonproliferation norms may yield questions about whether such an extension further brings the EEZ under the exclusive national jurisdiction of the coastal State. This section explores some of the specific contours of the intersection of nonproliferation norms with the law of the sea regime and provides a theory for the extension of nonproliferation norms that aligns with the jurisdictional thresholds established under UNCLOS.
12.4.1 UNCLOS and Its Role in FNPP Governance
UNCLOS has been described as “a constitution for the oceans,” providing guidance on rights, responsibilities, and activities that can be conducted within the maritime zones established under the Convention (Koh Reference Koh2020, 93). Within Part 5 of UNCLOS, Article 55 defines the EEZ as “an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.” Article 56 establishes the rights and jurisdictional duties of coastal States to include sovereign rights for the exploration, exploitation, conservation, and management of living and nonliving organisms within the water column, seabed, and subsoil. Further, Article 56 enables the coastal State to establish sovereignty over activities that are for the economic exploitation and exploration of the zone. Examples provided in Article 56 include energy production from the water currents or the wind. Although nuclear energy is not mentioned in this article, paragraph (1)(b)(i) provides jurisdiction for coastal States over “the establishment and use of artificial islands, installations and structures” (emphasis added). The paragraph offers a link to subsequent analyses describing FNPPs as installations under nuclear law instruments and develops an argument for coastal States to enable their nonproliferation obligations to reach FNPPs while operating in the EEZ.
With the exception of contemporary research focused on the transport of FNPPs and the role of UNCLOS, prior work has focused primarily on the reasonableness of FNPPs being used in the high seas under the 1958 Geneva Convention on the High Seas.Footnote 15 Blake’s analysis challenged the “reasonableness” of deploying FNPPsFootnote 16 on the high seas because, under his analysis, FNPPs will not only appropriate space for their operation but also appropriate resources that will have direct long-term pollution effects on the marine environment (Blake Reference Blake1978, 224). Blake’s theory was that the FNPP operation would directly interfere with the fishing freedoms provided under the high seas conventions and impact fish catchments to the extent that such diminishment in fishing due to pollution would lead to unreasonable use of the high seas (Blake Reference Blake1978, 224). Blake’s analysis does consider the security implications for deployment on the high seas as a means for relieving US dependence on foreign energy, although his security analysis focuses on energy security rather than nonproliferation considerations (Blake Reference Blake1978, 223–224).Footnote 17
Contemporary analysis of FNPP operation under the UNCLOS regime has primarily focused on the transport of FNPPs through the various maritime zones instead of their operation in the EEZ. For example, in the 2013 IAEA report on TNPPs, UNCLOS is examined primarily through the lens of innocent passage and freedom of navigation for a TNPP, with transport, rather than operation, being the primary focus of the analysis (IAEA 2013a, 77). Throughout the analysis, UNCLOS is viewed through the lens of transport, with no consideration for the jurisdictional limits established under the regime and how TNPP deployment in one of the maritime zones would influence obligations and the implementation of various nuclear law instruments. Likewise, Bernini’s analysis of small modular reactors and TNPPs under the law of the sea regime focused on two specific elements. First, Bernini examined the ship-versus-installation question, applying UNCLOS and SOLAS to identify where TNPPs, specifically FNPPs, would qualify under the various regimes (Bernini Reference Bernini, Kraska and Park2022, 121–124). Second, and similar to the 2013 IAEA report, her analysis of the UNCLOS regime and FNPPs focused on navigation rights for the transiting of FNPPs, in contrast to deployment within the zones (Bernini Reference Bernini, Kraska and Park2022, 124–125). Bernini’s analysis goes further to link the UNCLOS analysis to civil liability for nuclear damage, drawing this conclusion based on IAEA deliberations of the International Group on Nuclear Liability (INLEX; Bernini Reference Bernini, Kraska and Park2022, 129). Under INLEX’s interpretation, if the TNPP is in a fixed position, it is considered a nuclear installation for the purposes of civil liability and nuclear liability instruments (Bernini Reference Bernini, Kraska and Park2022, 129). This interpretation provides more support to establish how nonproliferation obligations would apply to FNPPs in the EEZ and whose obligations would also apply.
12.4.2 Nonproliferation Norms and Their Relationship to the Law of the Sea and FNPPs
Nuclear security and nuclear safeguards are inextricably linked by their shared goal of preventing nuclear material from being used for non-peaceful purposes either by non-State or State actors. According to Herbach, the legal framework for nuclear security that evolved from the nuclear nonproliferation regime started with the adoption and entry into force of the NPT (Herbach Reference Herbach2021, 7). Important to nuclear security and nuclear safeguards is the establishment of regulatory controls, responsibility, and accounting for nuclear material. Although both nuclear security and nuclear safeguards are essential to nonproliferation and greater arms control frameworks, it is important to differentiate their objectives and goals.
For both nuclear safeguards and nuclear security, FNPPs present challenges for identification, application, and implementation. Under both regimes, FNPPs require States to revert to basic questions about who is in control and which law applies to deployment. These questions are further complicated by FNPP deployment in the EEZ, where the coastal State has limited legal competence in contrast to a flag State (if the FNPP is registered).
12.4.2.1 Nuclear Safeguards
One of the primary competencies of the IAEA is the administration of safeguards, as outlined in Article XII of the IAEA Statute.Footnote 18 Among the obligations under that Article, the IAEA is permitted to examine designs of equipment and facilities and to send inspectors to a State to access locations where fissionable material is present. According to the IAEA, safeguards are a set of technical measures that are applied by the IAEA on nuclear facilities and material. Through these technical measures, the IAEA seeks to verify independently a State’s legal obligation that nuclear facilities are not misused and nuclear material is not diverted from peaceful uses. States accept these measures through the conclusion of safeguards agreements (IAEA 2023d).
With respect to nuclear safeguards, the focus is at the State level, and agreements between the IAEA and the State ensure that nuclear material under the State’s control and jurisdiction, or within the State’s territory, is accounted for and can be verified as being used for peaceful purposes. At a minimum, the Statute provides a legal framework in tandem with the NPT for establishing the IAEA as the international organization for concluding safeguards agreements with States, authorizing it to send inspectors to ensure compliance with those agreements.
NPT Implications.
In furtherance of nonproliferation objectives, the NPT establishes the international framework for States to possess nuclear material and their obligations under the Treaty. For FNPPs, Article IV(1) of the NPT enables States “to develop research, production and use of nuclear energy for peaceful purposes without discrimination,” with FNPPs falling within the scope of this provision although not explicitly identified. Article IV(2) goes further to enable and promote the transfer of nuclear materials to NNWS as long as those materials are transferred for peaceful purposes. Accordingly, Article III(1) of the NPT requires that NNWS accept safeguards and enter into safeguards agreements with the IAEA in alignment with the NPT and the IAEA Statute, but this should not conflict with their right to use nuclear material for peaceful purposes per Article IV.
For safeguards, as identified by the IAEA in its 2013 report, FNPPs present unique challenges, especially if they are exported from one country to another and depending on whether the exporting country and the receiving country are NWS or NNWS.Footnote 19 The analysis provided by the IAEA report outlined the obligation for the construction and operation by either the NWS or the NNWS, including export and the requirement for safeguards, but the report is unclear about implementation for the extraterritorial deployment of FNPPs in which the FNPP is flagged under an exporting State’s maritime law and is operating in a coastal State’s territory.
Subsequently, during the 2023 FNPP symposium, the Department of Safeguards presented on the IAEA’s preparation for FNPPs, including the challenges associated with nuclear material accountancy for material placed in a reactor before inspection, remote locations impacting data transmission for verification, and training for inspectors (Newton Reference Newton2023, 2–5). One of the challenges acknowledged by the Department of Safeguards was the portability of FNPPs and the need for understanding the legal implications with respect to the NPT and safeguards agreements established between the IAEA and the State (Newton Reference Newton2023, 2–5), However, for FNPPs, the question becomes the IAEA and which State? Is it the coastal State, the FNPP-supplying State, or some combination (Popov Reference Popov2022)?
CSAs and the Additional Protocol.
Under Article III of the NPT and Article XII of the IAEA Statute, NNWS must enter into CSAs with the IAEA. Using INFCIRC/153 (corr.) as a model, States negotiate their CSAs with the IAEA to be in compliance with their treaty obligations. Although the 2013 IAEA report does discuss the specific implementation of articles from INFCIRC/153 (corr.) with respect to ensuring that FNPPs are under safeguards, the report overlooks a jurisdictional question fundamental to understanding whose safeguards obligations apply (IAEA 2013a, 25–31). Paragraph 1 of INFCIRC/153 (corr.), also known as the Basic Undertaking, outlines that the State undertakes to accept safeguards “on all source or special fissionable material in all peaceful nuclear activities within its territory, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices” (IAEA 1972, 1, emphasis added). When applied to FNPPs, this raises a question about which of the three conditions takes priority. Does the territorial location of the FNPP, the jurisdiction (to include flag State jurisdiction), or the physical control of the FNPP determine whose safeguards obligations apply? The second “or” in the Basic Undertaking creates ambiguity. However, during the FNPP symposium, the IAEA’s Office of Legal Affairs indicated that the CSA would be based on the scope of territorial application as outlined both in agreement with the IAEA and in accordance with UNCLOS. This would indicate that, at least at the negotiation stage between the IAEA and the State, the territorial scope of application for safeguards should be established to include the maritime zones as outlined in UNCLOS.
At least for the purposes of the CSA and subsequently for the Additional Protocol, which provided additional requirements and obligations for NNWS, the gravamen is also whether territorial integrity, jurisdiction, or control takes priority for establishing safeguards obligations. This creates inherent vagueness between the coastal State that will have a territorial claim and the flag State; subsequently, there is a jurisdictional question about who exhibits control (whether manifested as physical or custodial control) of the FNPP. At present, the IAEA has not provided guidance on how to interpret the Basic Undertaking and any priority of territory, jurisdiction, or control for FNPPs. As far as the 2013 IAEA report and the conclusions drawn from the Department of Safeguards and the Office of Legal Affairs indicate, safeguards will apply to FNPPs; however, it is still unclear whose safeguards regime applies and how the respective obligations should be implemented.
12.4.3.2 Nuclear Security
In contrast to safeguards, where the focus is on ensuring that State actors use nuclear materials peacefully and that NNWS do not divert nuclear material for nuclear weapons, “nuclear security” is “the prevention and detection of, and response to, criminal or intentional unauthorized acts involved or directed at nuclear material, other radioactive material, associated facilities or associated activities” (IAEA 2022a, 140). For nuclear security, the focus is the prevention, detection, and response to non-State actors attempting to steal or sabotage nuclear and other radioactive materials.
Convention on the Physical Protection of Nuclear Material and Its Amendment.
Although Herbach points to a constellation of treaties, agreements, and conventions focused on the prevention of terrorism, including nuclear terrorism, the only instrument focused on ensuring the physical protection of nuclear material for civilian application is the ACPPNM (Herbach Reference Herbach2021, 64). The original focus of the CPPNM was the physical protection of nuclear material during international transport (Drobysz Reference Drobysz, Nick and Burns2022, 343). With the ACPPNM, the scope of application expanded to include the physical protection of nuclear material in use, storage, and both international and domestic transport, with transport including domestic and international transport (Newton Reference Newton2023, 2–5).
To further support State parties to the ACPPNM with implementing their obligations, Article 2A(3) outlines twelve fundamental principles to support the development of a nuclear security regime. Each of these fundamental principles in practice applies to the deployment of FNPPs; however, with the intersection to the UNCLOS regime, specific fundamental principles present novel questions about their application and subsequent implementation to FNPP deployments in a coastal State’s EEZ. For example, as noted above, Fundamental Principle A clearly states that “the responsibility for the establishment, implementation and maintenance of a physical protection regime within a State rests entirely with that State.” This principle is further elaborated upon in the IAEA’s Nuclear Security Series No. 20, “Objective and Essential Elements of a State’s Nuclear Security Regime” (IAEA 2013b, 4). This publication is nonbinding guidance that supports IAEA member States with the implementation of their obligations under the ACPPNM. Specifically, Essential Element 1 of Nuclear Security Series No. 20 expands upon the language used in Fundamental Principle A of the ACPPNM and adds “under a State’s jurisdiction” (IAEA 2013b, 4). This presents similar questions with respect to a State’s jurisdiction over an FNPP. Is it the coastal State’s jurisdiction or that of the flag State? Complicating this inquiry are the UNCLOS zones, where a coastal State would have exclusive jurisdiction in the territorial zone compared to the EEZ. Additionally, Fundamental Principle C identifies the State as being responsible for establishing and maintaining a legislative and regulatory framework to govern the physical protection of nuclear material; however, which regulatory framework applies to FNPPs comes into question, depending on whether the coastal State’s jurisdiction applies or if flag State jurisdiction and nuclear security laws and regulations apply.
For nuclear security, the question of jurisdiction is not abstract as far as identifying who is responsible for the nuclear security of the FNPP, but it has practical implications – for example, in response to a nuclear security event. Fundamental Principle K of the ACPPNM discusses the need for contingency plans to respond to the unauthorized removal of nuclear material or the sabotage of nuclear facilities or material. However, what does the response look like in the event of a nuclear security event on an FNPP located in the EEZ? In his analysis on the international frameworks governing the response to incidents involving FNPPs, Karcz identifies the myriad of nuclear law instruments, including the CPPNM and ACPPNM, the Convention on Early Notification of a Nuclear Accident, and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (Karcz Reference Karcz2023, 45–51). Karcz’s analysis provided a case study for a nuclear security response to a sabotage event of an FNPP with radiological release; however, the location of the FNPP in his scenario is at a port facility where the FNPP is deployed extraterritorially (Karcz Reference Karcz2023, 55). His conclusion from this case study was that the ACPPNM, the Early Notification Convention, and the Assistance Convention would be “triggered immediately” with no order for activation (Karcz Reference Karcz2023, 55). If the scenario was changed for deployment in the EEZ, would the flag State for the FNPP be the triggering State, or would the coastal State be able to initiate, and who would manage incident response in the EEZ? The analysis does not address jurisdictional variances caused by the UNCLOS maritime zones. Karcz asks if a “jurisdictional decay” occurs for a nuclear security event depending on whether the security event occurs in the territorial waters compared to the contiguous zone or the EEZ. Although timely, Karcz’s analysis highlights the need for greater understanding and analysis of the response to nuclear security outside territorial waters and the span of control exercised by coastal States in responding to nuclear security and nuclear safety events if FNPPs are to be deployed in the EEZ.
12.5 Mutually Reinforcing Regimes: Nonproliferation and the Law of the Sea
In both nonproliferation and the law of the sea regimes, a central tenet that can be drawn is the need for control, whether regulatory control of nuclear material or the establishment of jurisdiction as highlighted under the UNCLOS regime. FNPPs illuminate a challenge with establishing who is in charge, primarily from the lens of jurisdiction, and whose legal regime applies. Although some contend that FNPPs and States that register FNPPs under their flag are bound by UNCLOS, such an analysis is highly dependent on the location of the FNPP and whether coastal State law applies or that of the flag State (Steding Reference Steding2004, 732–737).Footnote 20 As an annex to the 2013 IAEA TNPP report, the IAEA did consider the role of bilateral agreements as a mechanism to facilitate the deployment of TNPPs and, by extension, FNPPs (IAEA 2013a, 59). Under this mechanism, the role of bilateral agreements included “an overarching long-term framework agreement covering nuclear cooperation in general, supplemented by one or several detailed agreements or memoranda of understanding specifically related to the technical and legal requirements of the supply of a TNPP” (IAEA 2013a, 59). The concern with bilateral agreements is that when the bilateral agreement seeks either to divest a country of nonproliferation obligations or responsibilities or to exclude the FNPP from regulatory controls of the coastal State, the bilateral agreement could be viewed as a vehicle to circumvent obligations or divest security or safeguards obligations to the State supplying the FNPP. Divesting such responsibility would not only undermine efforts at universalization but also cause turmoil to key tenets of both nuclear security and nuclear safeguards frameworks.
In the alternative, prior research into the relationship between oil rigs and their responsibilities to coastal States when operating in the EEZ provides a seamless parallel for possible arrangements for FNPPs to operate in the EEZ and with respect to nonproliferation obligations (Richards Reference Richards2011, 408). Richards’s analysis that oil rigs operating in the EEZ should be construed as facilities when fixed establishes them as installations under Article 56 of UNCLOS (Richards Reference Richards2011, 408). As a result of this classification, the coastal State can exert jurisdiction over the oil rig commensurate with Article 56 of UNCLOS (Richards Reference Richards2011, 408).
If the same logic that Richards applies to oil rigs is applied to FNPPs, the following conclusions can be drawn. First, such an interpretation of FNPPs as installations when fixed would be consistent with the INLEX decision discussed by Bernini in her analysis of small modular reactors and TNPPs operating under the UNCLOS regime (Bernini Reference Bernini, Kraska and Park2022, 129).Footnote 21 Once the FNPP is determined to be an installation, regardless of the flag registration, the coastal State would in theory be able to extend its nonproliferation obligations over an FNPP operating within its EEZ. This is confirmed by Leopardi’s conclusion that an Ocean Nuclear Power Plant (ONPP) would be authorized by the coastal State (Leopardi Reference Leopardi2024, 11). In practice, this would include the FNPP being included under the coastal State’s CSA and Additional Protocol for safeguards purposes. For the purposes of nuclear security, the FNPP would conform to the legislative and regulatory requirements of the host State rather than the supplier State.Footnote 22 This would also include obligations under other counterterrorism agreements, such as the International Convention for the Suppression of Acts of Nuclear TerrorismFootnote 23 and the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf.Footnote 24
Such an approach would elevate the question raised by Koh: What is the extent of national jurisdiction over the EEZ? Is the concept of intensification of maritime zones, as discussed by Ryan, just a logical outgrowth of an ever-growing use case for the EEZ? To answer Koh’s question, the extension of nonproliferation objectives and aims to the EEZ is not an encroachment on the EEZ but rather a recognition to have “peace at sea.” Consequently, the extension of nonproliferation norms to the EEZ is necessary.Footnote 25 Such uses of the sea as FNPP deployments reinforce the UNCLOS regime by promoting the rule of law, both in the context of the law of the sea and in ensuring that nonproliferation objectives and obligations are managed, maintained, and strengthened.
12.6 Conclusion
The deployment of FNPPs in the EEZ highlights the complexity of overlapping regimes and resorts back to basic questions about which law applies and who is in control of the FNPP. When trying to reconcile how FNPPs will operate under the UNCLOS regime, there is inherent divergence in the ancient traditions of maritime law and the law of the sea with the advancement of nuclear technology. With efforts toward decarbonization entering the maritime domain, the challenge will be how to prepare for coming change to ensure that the world is ready for FNPPs and can be confident that the cornerstones of nuclear nonproliferation are in place.
This chapter highlights the many ways the law of the sea, nuclear nonproliferation, and the advancement of nuclear technology converge. Although the concept of FNPPs is now more than fifty years old, their development in the 1960s and 1970s came at a time when the nonproliferation regimes were in their infancy or did not exist. Fifty years later, FNPPs are reemerging, now with more mature nuclear nonproliferation regimes and technologies, but countries are still seeking answers about how to ensure that FNPPs do not become targets of malicious actors or are not diverted by States for non-peaceful purposes. In this regard, both the law of the sea regime and safeguards and security requirements are striving to answer questions that are still unresolved. At a time when nuclear technology is expanding its application to the oceans, whether through decarbonizing shipping or supporting carbon reduction for offshore oil and gas industries, “a clear roadmap is needed” (Chambers Reference Chambers2024). The core issue for FNPPs is ensuring that wherever an FNPP is deployed, whether in the territorial sea or to the outer edges of the EEZ, nonproliferation norms are maintained. In all instances, it is unclear what that looks like, especially when overlapping or competing jurisdictional considerations from the coastal State and the flag State exist. Reconciling those claims is key to legal clarity. This chapter provides a framework for such a reconciliation in which the FNPP, when fixed in the EEZ, is treated as an installation and, for the purposes of UNCLOS and nonproliferation regimes, is the responsibility of the coastal State. On the other hand, an unfixed FNPP remains solely the responsibility of the flag State if indeed the power plant is a ship or a vessel. A floating nuclear device is also under the responsibility of the State that launched it.
FNPPs are currently in the eye of the storm, charting their course not just through their role in a decarbonized economy, and they are plying through centuries of maritime law, the law of the sea, and nuclear law instruments to find a safe and secure future. If FNPPs can ford the gap between the law of the sea and nonproliferation regimes, a new order is foreseeable that highlights the opportunities of the sea with reemerging technological possibilities.
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