Jon Van Dyke's Advocacy in Protecting Ocean Environments

The Right of Coastal Nations to Protect Their Environments from Hazardous Cargoes

This document is a published essay explaining Jon Van Dykeʻs position on the "right of coastal nations to use force as an appropriate countermeasure to protect their populations and coastal environments" so that there can be "an accommodation and agreement on the creation of an international set of rules to govern the transport of ultrahazardous cargoes" (p. 3).  There is a need for "procedures governing notification and consultation and the preparation of environmental assessments and contingency repsonse plans..., as well as the rules governing routing, liability, and compensations (p. 3)."  He identified the venue for these dialogues to occur so that effective change is realized--"the International Maritime Organization is the appropriate forum for the dialogue...and the two sides should begin without further delay to codify the rules governing the shipments of these extremely poisonous materials" (p. 3).

Jon Van Dyke served as legal counsel to the South Pacific Regional Environment Programme, which brought together Pacific Island nations to stand in unity to protect their ocean and coastal environments from nuclear waste dumping. The island nations involved were: American Samoa, Australia, Cook, Islands, Fiji, France, French Polynesia, Kiribati, Marshall Islands, Nauru, New Caledonia, New Zealand, Palau, Papua New Guinea, Solomon Islands, Tonga, United Kingdom, United States of America, Vanuatu, Wallis and Futuna and Western Samoa. These island nations sent delegates to be part of an expert meeting to draft a convention that would unify their resolve to protect their environments from the rising dependence and transport of nuclear wastes by larger industrial nations such as the United Kingdom and Japan.

This document is a report of the convening, as well as the Draft Convention for the Protection and Development of the Natural Resources and Environment of the South Pacific Region. It includes the language of resolution, articles of agreement, action plans for national legislation and natural resource management within and between them.

East- West Environment & Policy Institute "Policy Issues of Pacific Nuclear Waste Disposal"- Jon Van Dyke Pre-Proposal for additional funding to investigate Ocean Disposal of Nuclear Waste-proposal to be submitted to the Department of energy

Future Directions in Anti-Nuclear Advocacy

These documents are grant proposals that outline Jon Van Dykeʻs research themes that offer potential directions for pursuing an advocacy position against nuclear waste disposal in the Pacific.

"1) An Overview of the Legal Constraints on the Disposal of Radioactive Wastes in International Waters" includes the question of "theories and procedural problems (standing, ripeness, which court, admissibility of evidence, sovereign immunity, act of state doctrine, etc.) to determine how a legal suit on "challenging the disposal of nuclear wastes by one nation in international waters" could be crafted (p. 1).

"2) A Closer Look at the London Dumping Convention" seeks to study the history of this treaty, such as its negotiating history, terms by the International Atomic Energy Agency and the Inter-Governmental Maritime Consultative Organization (IMCO). This treaty has raised questions if "Pacific Island nations should join the London Dumping Convention or create its own organization for the Pacific" (p. 1).

"3) How Should Harm to the Future Be Accommodated in Modern Legal Systems?" calls for the examination of "economic literature on benefit-cost analysis" and how to "structure our legal systems to internalize the real costs of our present benefits rather than simply pass off those costs to future generations with an ʻout-of-sight, out-of-mind" approach" (p. 2).

"4) Nuclear Energy and the Pacific: A Special Relationship" attends to the paper written by Kirk Smith and Suliana Siwatibau on "the contact Pacific islanders have had with nuclear radiation during the past 36 years to determine the basis for the current skepticism and mistrust on this issue" (p. 2).

"5) Additional Funding for Work in this Area" reveals Van Dykeʻs foresight on the challenges moving forward on this issue due to "policy makers not finding agreement in the medical and scientific literature on the risks of nuclear waste disposal" (p. 2). Without this consensus, "no institutional agreements can be developed" to address this issue (p. 2). 

Jon Van Dyke's Findings in Pursuing Legal Strategies to Challenge Nuclear Waste Disposal in the Pacific

This paper is a report from Jon Van Dyke's research on the "Ocean Disposal of Nuclear Wastes," which includes literature reviews, legal precedents on toxic waste cases, and his suggestions for those seeking protection from nuclear waste contamination to advocate for nuclear shipping nations to develop a "nuclear dumping fund" that would" monitor the effects of the dumping and to compensate victims in present and future generations" (p. 32). There is a hope that "such a fund would encourage the dumping nation to weigh the true costs of dumping when evaluating this option against land-based alternatives (and other energy sources) and would encourage the nation to use the highest possible standards of care if ocean dumping were still chosen after these additional costs are factored in the equation" (p. 30).

From this legal reasoning, it seems that the end the dependence on nuclear energy generation, and the creation of energy, weapons and waste from this process seems more a conjecture, rather than an enforceable agreement.

But the previous South Pacific Regional Environment Programme revealed Pacific Island nations’ acts of self-determination to protect their resources from industrial nations that were engaged in nuclear energy or weapons development. Japan had been dumping its radioactive wastes from its nuclear reactors off the coasts of Guam, Micronesia. Great Britain/United Kingdom has practiced nuclear testing in Australia and Kiribati. It has also disposed of nuclear waste off the coast of the Irish Sea. The U.S. had engaged in nuclear testing in the Marshall Islands, Bikini Atoll, Ejit, Ebeye, Kwajalein, Rongelap, Enewetak and Utirik. Kalama Atoll of the Hawaiian Islands chain has been a site for U.S. nuclear testing. France has engaged in nuclear testing on the island of Moruroa and Fangataufa atolls, with fallout in Mangareval island, affecting the indigenous peoples in French Polynesia.

The exposure to nuclear testing and waste has disastrous effects on these islands peoples and oceanic environments. In particular, it prevents these peoples from being able to return to their homes. One response to this situation is the the Compact of Free Association (COFA), which involves the independent nations of Marshall Islands, the Federated States of Micronesia (FSM) and Republic of Palau to be in free association with the US. In exchange for their islands to be used for U.S. military strategic, economic and political benefits, the islanders can come to the U.S. for health care as a result of radioactive contamination (Genz et al 2016, p. 24). Other details of the COFA are that:

  • US provides money compensation to members of island communities recognized as having been exposed by nuclear fallout (Bikini, Enewetak, Rongelap, and Utrik are the “Four Atolls”).
  • Section 177 of COFA provides US $150 million for past, present, future compensation against the US for nuclear testing and impacts.
  • Nuclear Claims Tribunal have been criticized as insufficient to address health of Four Atolls communities. There has been a Changed circumstances petition signed due to the fact that nuclear testing and its effects are more widespread than previously determined.  But, there has been no attempt to petition the U.S. for additional funding.
  • Marshall Islanders affected seek medical, economic and other opportunities in Hawaiʻi, Guam and the continental US. They face racism, discrimination and misunderstanding about their countryʻs history and relationship with the U.S. (Genz et al 2016, 24)

These realities prove that contamination from nuclear fall out and wastes have long standing or even permanent negative environmental and health effects whose costs are difficult to foresee, as the effects take many years to manifest. It is perhaps through the voices of Pacific Islanders who know first hand the effects of nuclear radiation exposure that conscience can be awakened in those nations who are producing nuclear waste.  

Additional Resources: 

Genz, Joseph H., Goodyear-Kaʻōpua, Noelani, La Briola, Monica C., Mawyer, Alexander, Morei, Elicita N., Rosa, John P. Volume 1 of Teaching Oceania Series, Militarism and Nuclear Testing in the Pacific. Honolulu: Center for Pacific Islands Studies, University of Hawaiʻi-Mānoa. Pp. 1-26 http://hdl.handle.net/10125/42430   

Jon Van Dyke's Advocacy in Protecting Ocean Environments