Permanent Court of Arbitration (Mox Plant Case)
Permanent Court of Arbitration (Mox Plant Case)
Permanent Court of Arbitration (Mox Plant Case)
UNITED
KINGDOM)
Source: International Legal Materials, Vol. 42, No. 5 (September 2003), pp. 1187-1199
Published by: American Society of International Law
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[June24, 2003]
as
+Cite 42 ILM 1187 (2003)+
PERMANENTCOURTOF ARBITRATION
ArbitralTribunalConstitutedPursuant toArticle 287, andArticle 1ofAnnex VII, of theUnitedNations
Convention
on the Law
Radioactive
of
theMOX
of the Sea for theDispute Concerning
Plant, International Movements
of the Irish Sea
and
the
Protection
of
the
Marine
Environment
Materials,
THEMOX PLANTCASE
IRELAND v. UNITED KINGDOM
OrderN? 3
Suspension
of Proceedings
and Request
Judge Thomas
Present:
For Further
on Jurisdiction
Provisional
and Merits,
Measures
President
A. Mensah,
Professor JamesCrawford SC
Ma?tre. L. Yves Fortier CC QC
Professor
Gerhard
Jafner
background
In accordance
measures
3.
to the Convention.
On 3 December
for provisional
an Order
paragraph89). Inmaking itsOrder, ITLOS found,as is requiredby article290, paragraph5, "thattheAnnex VII
arbitraltribunal
would primafacie have jurisdictionover thedispute" (ITLOS Order, paragraph62).
4.
it is Based.
5.
This
document
was
of Procedure,
reproduced
and
appointed
reformatted
of the Permanent
at the Permanent
Court
Court of
of Arbitration
website
1188
6.
Claim
in itsOrder No.
[Vol. 42:
7, Ireland's Notification
and Amended
Statement of
In itsRules
7.
Tribunal
Memorial, Reply, and Rejoinder. Those writtenpleadings were duly filed by thePartieswithin the time-limits
specifiedby theTribunal.
The Tribunalheld hearingsat thePeace Palace inThe Hague from10 June2003 to21 June2003. The Parties
8.
were
represented as follows:
On behalfof Ireland:
Mr. David
J.O'Hagan
(as Agent)
Lowe
(as Counsel)
On behalfof theUnitedKingdom:
Mr. Michael Wood CMG (asAgent)
The Rt. Hon. theLord GoldsmithQC (Attorney
General)
Dr. Richard PlenderQC (as Counsel)
Mr. Daniel BethlehemQC (as Counsel)
Mr.
Samuel Wordsworth
(as Counsel)
The dispute
The disputebroughtbeforetheTribunalby IrelandessentiallyconcernsdischargesintotheIrishSea of certain
9.
with
the authorisation
Kingdom
Government.
Government.
BNFL
is a corporation wholly
owned
by the United
and THORP
ofCumbria in theUnited Kingdom, facingonto theIrishSea. The UnitedKingdom formstheeasternand partof the
western
coast of the Irish Sea, and Ireland forms the rest of thatwestern coast. In the present context, both States
an interest in what happens
sea within the meaning of
have
in the Irish Sea, which is a semi-enclosed
clearly
article 122 of the Convention.
In itsNotification
and Amended Statement of Claim, Ireland asserts that, in respect of the establishment and
of
the
MOX
prospective operation
plant, there is a risk of harm arising from discharges of radioactive wastes. By the
amendment to its Statement of Claim, Ireland made it clear "that Ireland's claim is not confined to the immediate
11.
consequences
arising directly from theMOX
complex, but extends to all the consequences
1189
2003]
plant." Ireland also maintains that there are risks arising from transport of radioactive material
to and from the facilities, and from the storage of such material at those facilities.
12.
the Convention
that, in the circumstances,
imposes on the United Kingdom obligations
the protection of the marine environment; the prevention and control of pollution, and co-operation
Ireland considers
concerning
of the Convention;
15.
the Tribunal's
jurisdiction.
jurisdiction
in a definitive
sense. Moreover,
even to proceed
and other international agreements and instruments invoked by Ireland. The Tribunal will refer to these as the
international law issues. Second, certain objections are raised relating to the position of the Parties under the law of
the European Communities. The Tribunal will refer to these as the European Community law issues.
17.
The Tribunal
considers
jurisdiction.
regard to the international law issues raised by theUnited Kingdom, there has clearly been an exchange
of views between the Parties, as required under article 283 of theConvention, and theUnited Kingdom does not now
contest this. It is true that the 1992 Convention
for the Protection of theMarine Environment of the North-East
18.
With
is relevant to some at least of the questions in issue between the Parties, but the
("the OSPAR Convention")
Tribunal does not consider that this alters the character of the dispute as one essentially involving the interpretation
and application of the Convention.
is not persuaded
Convention
that the OSPAR
Furthermore, the Tribunal
Atlantic
Convention.
adopted at a meeting of theOSPAR Commission on 23 July 1998), having regardto articles288 and 293 of the
Convention.
The Tribunal
the scope of
itsjurisdictionunderarticle288, paragraph 1,of theConvention,on theone hand, and the law tobe applied by the
1190
International
[Vol. 42:
Legal Materials
under article 293 of the Convention, on the other hand. It also agrees that, to the extent that any aspects of
such claims may be inadmissible.
Ireland's claims arise directly under legal instruments other than the Convention,
a
case
to
state
not
that
has
and
the
does
failed
Tribunal
Ireland
However,
agree
plead
arising substantially under the
Convention.
Tribunal
regard to theEuropean Community law issues, however, certain problems have become apparent to the
in respect of some important and interrelated areas of European Community law as they appear to affect the
dispute between the Parties before this Tribunal. These areas concern in particular:
20.
With
Tribunal
(i)
(ii)
(iii)
Community
pursuant
to article 5 of
(iv)
(v)
Community
law.
of the
problems have become more acute following a Written Answer given by the Commission
on
in
the
Parliament
15
the
closure
after
("the European Commission")
European
May 2003,
European Communities
of thewritten pleadings in the present case.2 This Written Answer was brought to the Tribunal's attention on 5 June
21.
These
2003, only five days before the commencement of the hearings. The Tribunal notes that the European Commission
has indicated in itsWritten Answer that it is examining the question whether to institute proceedings under article 226
there is a real possibility that the European Court of
of the European Community Treaty. In these circumstances,
Justice may be seised of the question whether the provisions of the Convention on which Ireland relies are matters
in relation towhich competence has been transferred to the European Community and, indeed, whether the exclusive
as Member
States of
jurisdiction of the European Court of Justice, with regard to Ireland and theUnited Kingdom
the European
22.
While
Convention
Community,
of theConvention
nor Ireland sought to sustain the view that the interpretation of the
Kingdom
in its entirely fell within the exclusive competence of the European Court of Justice as between Member
neither the United
to be sustained,
itwould
preclude
the jurisdiction
In these circumstances, the determination of theTribunal's jurisdiction, particularly in the light of articles 281
and the identification of the treaty provisions and other rules of international law which
referred to above.
concern the
recognizes that the problems referred to above relate tomatters which essentially
to
which
both of
a
of
the
the
order
order
of
internal operation
European Communities)
separate legal
legal
(namely
the Parties to the present proceedings are subject and which, in the circumstances referred to in paragraph 21 above,
24.
The Tribunal
1191
2003]
are to be determined within
25.
Despite
The European
this risk, the fact remains that, until these issues are definitively resolved,
Community
doubtswhether thejurisdictionof theTribunal can be firmlyestablished in respectof all or any of theclaims in the
dispute.
merits
For one thing, it is not at all clear at this stage that the Parties are able to
Finally,
the Tribunal
notes that,whatever
as to
Court of Justice.
27.
to the Convention.
In the circumstances,
and bearing inmind considerations ofmutual respect and comity which should prevail
institutions
both
of which may be called upon to determine rights and obligations as between two
judicial
itwould be inappropriate for it to proceed furtherwith hearing the Parties on the
the
considers
that
Tribunal
States,
a procedure thatmight result
merits of the dispute in the absence of a resolution of the problems referred to.Moreover,
28.
between
in two conflictingdecisions on the same issuewould not be helpful to the resolutionof thedisputebetween the
Parties.
thatfurther
will be suspended.
proceedingson jurisdictionand themerits in thisarbitration
30.
The Tribunal
of Procedure,
remains seised of the dispute. Unless otherwise agreed or decided, the Tribunal
2003. The Tribunal hopes that itwill at that time have a clearer
law and possible proceedings
thereunder insofar as they
regarding European Community
nevertheless
request
measures
to themarine
environment.
16 June 2003, Ireland submitted to the Tribunal a Request for Further Provisional
"to preserve Ireland's rights under UNCLOS
and
("the Request") pursuant to article 290 of theConvention
to prevent harm to themarine environment."
32.
By communication
dated
Measures
1192
33.
International
(A)
Discharges
(i)
(ii)
The United Kingdom shall ensure that annual aerial waste discharges of
radionuclides
radionuclides
(B)
[Vol. 42:
Legal Materials
Co-operation
(i)
and
annual
do not exceed
aerial
2002
liquid waste
levels.
and
discharges
of
(ii)
from MOX,
from THORP,
and consult with, and consider and respond to issues raised by, Ireland.
it is expected
carrying radioactive
(iii)
b.
c.
in theHAST
or in part by or on behalf
d.
or associated
facilities,
that will
be
Access
a copy of Continued
Operation
documents
site;
2003]
1193
f.
and of themeasures
since 11 September
2001
(iv)
(v)
Coastguard
to or from
Agency
(C)
Assessment
and/or THORP.
(D)
Other Relief
(i)
Furtherand otherrelief;
(ii)
Liberty to apply.
The Tribunal understandsthat,by theNote inparenthesistoSection (B) of itsRequest, Ireland intendedto indicate
that any information provided
confidential.
by the United
Kingdom
in response
to provisional
measures
would
be treated as
34.
of theUnited Kingdom
The Tribunal's
35.
as outlined
with regard
competence
The question
in the pleadings."
to provisional
of provisional measures
measures
and
the applicable
rules
provides:
Article 290
Provisional
Measures
to preserve the
appropriate under the circumstances
respective rights of the parties to the dispute or to prevent serious harm to themarine environment,
provisional
which
it considers
pending thefinaldecision.
2.
Provisional
measures
may be modified
them have changed or ceased to exist.
justifying
1194
[Vol. 42:
Legal Materials
International
3.
Provisional
measures
The court or tribunal shall forthwith give notice to the parties to the dispute, and to such other
or revocation of
as it considers appropriate, of the prescription, modification
provisional measures.
4.
States
5.
Parties
this section, any court or tribunal agreed upon by the parties or, failing such agreement within two
the International Tribunal for the Law
weeks from the date of the request for provisional measures,
of the Sea or, with respect to activities in the Area, the Seabed Disputes Chamber, may prescribe,
in accordance with this article if it considers thatprima facie
modify or revoke provisional measures
the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation
so requires. Once constituted, the tribunal to which the dispute has been submitted may modify,
revoke or affirm those provisional measures, acting in conformity with paragraphs 1 to 4.
As
already
ITLOS,
acting pursuant
prescribed
5, of the Convention,
prescribed a provisionalmeasure, "pending a decision by theAnnex VII arbitral tribunal." (ITLOS Order,
paragraph89)
The provisional measure
37.
prescribed
by ITLOS
was:
shall cooperate
(b)
(c)
exchange
consequences
to prevent pollution
environment
stated that it "did not find that the urgency of the situation
In prescribing a provisional measure,
ITLOS
measures
requested by Ireland, in the short period before the constitution
requires the prescription of the provisional
38.
the extent thismay be relevant, the Tribunal considers that there has been a change in the circumstances
ITLOS prescribed its provisional measure. First, this Tribunal has now been constituted. Furthermore,
To
on the
following the suspension of the proceedings, the time thatwill elapse before the Tribunal can reach a decision
was
In
the
its
the
view
of
to
to
ITLOS
made
Order.
when
be expected
be greater than
merits is likely
Tribunal, the
a change in the circumstances that
longer delay in reaching a final decision on themerits of the dispute constitutes
1195
2003]
measure
of the provisional
explained,
the Tribunal
considers
prescribed
by ITLOS
thatprima facie
in accordance
it has jurisdiction
with
over the
pursuant to article 290, paragraph 1, of theConvention, theTribunal may prescribe "any provisional measures which
itconsiders appropriate in the circumstances to preserve the respective rights of the parties to the dispute or to prevent
serious harm to themarine environment, pending the final decision." Although the language of article 290 is not in
all respects identical to that of article 41 of the Statute of the International Court of Justice, theTribunal considers that
it should have regard to the law and practice of thatCourt, as well as to the law and practice of ITLOS, in considering
provisional measures. Furthermore it considers that Ireland, as the Party requesting provisional measures, bears the
burden of establishing that the circumstances are such as to justify themeasures
sought.
42.
relevant provisions
of Annex
VII
of Procedure.
Article
1, paragraph
2, of the Rules
of Procedure
to theConvention or other provisions of theConvention, and the Parties have not otherwise agreed, the question shall
be decided by the Tribunal after consulting the Parties." In fact there are no provisions inAnnex VII, or in theRules
of Procedure, expressly governing applications for the prescription of provisional measures.
43.
In accordance
3, of the Convention,
extensive
submissions
from theMOX
as increased discharges
from THORP
resulting
but also cause an irreparable prejudice to Ireland's claimed right that the Irish Sea not be polluted. Moreover,
Ireland
failure to consult and co-operate fully and effectively with Ireland constitutes
argues that the United Kingdom's
to
Ireland's
claimed
irreparable prejudice
right to such consultation and co-operation. In this regard Ireland drew
attention towhat
to provide
it, on appropriate
terms,
with information
MOX plantand of relatedfacilitiesand of shipmentsto theplant,and
relatingto theoperationof the
123 of the
generally to consult with Ireland on an intergovernmental basis, within the framework of Article
as
a
a
of
the
Irish
Sea.
Ireland
to
contends
that
it
has
Convention,
Furthermore,
co-riparian
right
require theUnited
to undertake a proper environmental assessment,
in accordance with article 206 of the Convention,
in
Kingdom
respectof any stepsor decisions takenor implementedin relationto theMOX plant andTHORP.
46.
The United Kingdom argues thatany radioactivedischarges fromtheMOX plant into the IrishSea are
"infinitesimally
environment.
Itmaintains
that
ithad consultedand co-operatedas fullyand effectivelyas itwas requiredtodo, and inparticularthatithad fully
compliedwith theITLOS Order. Itdenies thatthedischarges fromtheMOX plantproduce irreparable?orindeed
to Ireland's claimed rights. It also argues that compliance with some of themeasures
any?prejudice
in effect result in the closing down of theMOX
plant at least for some months, and that this would
sought would
cause serious
1196
International
[Vol. 42:
Legal Materials
prejudice to theUnited Kingdom andBNFL in theevent thatIreland'sclaimswere not upheld on themerits. In its
view, there has been no change of circumstances
since themaking
formodifyingor supplementingthatOrder.
of the ITLOS
47.
or for the
stated that "there are no current proposals for new contracts for reprocessing at THORP
United Kingdom,
modification of existing contracts so as to reprocess furthermaterials. No decision to authorize further reprocessing
United Kingdom
also made
fuel.
48.
49.
The Tribunal
which
are
referred to in paragraphs
50.
The Governments
of theUnited Kingdom
(C) of theRequest,
51.
while
denying
measures,
seeks from
questions
The Tribunars
Community
on provisional
conclusions
of developments.
measures
As
harm
to the marine
environment
to themarine
54.
Serious
of serious harm
some of which (e.g. Cs-137 and Pu-241) have an extremely long half-life. The
small quantities of radionuclides,
wastes in question arise not as a direct by-product of reprocessing of spent nuclear fuels, but from ancillary activities
for Ireland, in opening the case,
such as the cleaning of the plant and sanitary operations. The Attorney-General
. . . ."
a
not
is
of
significant magnitude
plant...
accepted that "... the level of discharges from theMOX
Under article 290, paragraph 1, any harm caused, or likely to be caused, to themarine environment must be
"serious" before theTribunal's power to prescribe provisional measures on that basis arises. In the present state of the
evidence, theTribunal does not consider that Ireland has established that any harm which may be caused to themarine
55.
B.
56.
1197
2003]
plant, pending
were necessary
(a)
assessed,
on provisional measures. The United Kingdom points out that theMOX plant and related facilities have been
approved under a stringent regulatory regime established and operated with full regard to the applicable regional and
international norms.
decision
58.
International judicial practice confirms that a general requirement for the prescription of provisional measures
claimed rights (see, e.g. theOrder of 17 June 2003 of the International Court of Justice in theCase
Criminal Proceedings
inFrance
(Republic of the Congo v. France), paragraphs 34-35).
concerning Certain
The Tribunal notes thatITLOS was requestedbyway of provisionalmeasures toorder thattheMOX plant
59.
not be approved or commissioned.This ITLOS declined to do, although itdid prescribea different
provisional
measure
between
of information.
61.
1.
greater volume of written material than ITLOS had at the time of itsOrder. But the Tribunal does not consider that
thismaterial leads it to reach any different conclusion as to the question of discharges from theMOX
plant, so far as
concerns the period prior to the decision on themerits. In this respect it notes in particular the statement made by the
Agent for theUnited Kingdom, which the Tribunal has set out in paragraph 47 above, that "that there are no current
or for themodification of existing contracts so as to reprocess
proposals for new contracts for reprocessing at THORP
no
furthermaterials." There is thus
clear indication at this stage that therewill be additional discharges from THORP
62.
riskof irreparable
harm toIreland'sclaimedrights,whichwould justifyitinprescribingprovisionalmeasures relating
to discharges
63.
from theMOX
plant.
that any provisional measure is justified at this stage, in advance of theTribunal's eventual consideration of themerits,
even assuming that the issue of assessment does indeed fall
definitively within the Tribunal's jurisdiction. In this
1198
context theTribunal
64.
to theUnited Kingdom
guidance
Turning
[Vol. 42:
Legal Materials
International
to the question
of co-operation
between
the Parties
of the marine
matterwas dealtwith,
environment
of theIrishSea (paragraph(B) of theRequest), theTribunal firstobserves thatthis
to some extent at least, in the ITLOS Order. Both Parties accept that thatOrder remains in force and is binding upon
of the ITLOS Order as such, as distinct from an order
Ireland does not seek any modification
requiring furthermeasures of co-operation and exchange of information.
them. Moreover
65.
The ITLOS
to co-operate
specifiedin theITLOS Order. In itsReply Irelandacknowledged thatsince theITLOS Order, therehad been some
improvement
of co-operation
in the processes
to a number of
does not need at this stage to resolve the factual issues in dispute between the Parties as to the
and timeliness of the disclosure of certain information and as to the character and extent of co-operation.
The Tribunal
adequacy
It is satisfied that since December
offer, referred to in
and co-operation in
The Tribunal, accordingly, recommends that the Parties should seek to establish arrangements of the kind
referred to in the previous paragraph, and to undertake the review of the intergovernmental system referred to in that
67.
paragraph.
Other matters
68.
Order below.
In addition, the Tribunal urges both Ireland and the United Kingdom,
jointly and separately, to take
to
the
of
law. In this
of
the
resolution
European Community
outstanding questions
expedite
appropriate steps
to
the
article
and
of
the
Parties
of
article 6,
attention
the
the
Tribunal
draws
5, paragraph 5,
connection,
provisions
69.
paragraph
2, of Annex
IX to the Convention.
Inmaking itsRequest, Ireland did not include any request for costs. The United Kingdom for itspart
70.
submittedthattheTribunal, inrejectingtheRequest, shouldorderthatIrelandpay theUnitedKingdom's costsof these
proceedings.The Tribunal considers thatno orderas to costs is appropriateat thisstage. In the lightof articles 16
and 17 of itsRules
any decision
TRIBUNAL,
Convention, makes
unanimously, pursuant
the following Order:
to articles
of Procedure
of the
1199
2003]
1.
Decides thatfurther
proceedings in thecase are suspendeduntilnot laterthan 1December 2003;
2.
3.
Rejects
Ireland's Request
the Request;
4.
Decides,
insofar as concerns
referred to in paragraphs
of information at this stage;
5.
Calls on theParties,pending thefinaldecision of theTribunal, toensure thatno action is takenby
eitherPartywhichmight aggravateor extend thedispute submittedto theTribunal;
the Parties
Requests
resolution of the outstanding
6.
to take such steps as are open to them separately or jointly to expedite the
issues within the institutional framework of the European Communities;
and
7.
Decides,
(a)
made
Tribunal in thepresentOrder;
thatsubjecttoany further
orderof theTribunal,not laterthan17November 2003, a further
(b)
(c)
8.
Done
at The Hague
to the European
in this connection;
and
Commission.
/s/
Thomas
A. Mensah
President
A/
Anne
Joyce
Registrar
ENDNOTES
1.
2.
For
the declaration
European ParliamentPlenary Session, Oral question by Proinsias De Rossa (H-0256/03), SittingofThursday, 15May 2003.