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THE MOX PLANT LITIGATION: THE FIRST HALF-LIFE

Published online by Cambridge University Press:  17 January 2008

Robin Churchill  and
Joanne Scott
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Abstract

In 2001 Ireland commenced litigation against the United Kingdom (UK) over the construction and operation of a plant to produce mixed oxide fuels at the Sellafield nuclear complex in north-west England. This litigation, which had been only partially concluded at the time of writing, raises a series of fascinating and often complex issues of both international and EU law. These include the potential for overlapping jurisdiction between different international tribunals; the division of competence between the EC and its Member States in relation to participation in treaties; and the use of litigation as a strategy for settling inter-State disputes. The aim of this article, apart from giving a snapshot of the position that the increasingly tortuous course of this litigation had reached by January 2004, is to explore these issues. The article begins by setting out the background to the litigation and giving a quick overview of its course so far. It then explores in more detail the questions of overlapping jurisdiction of international tribunals and of EC law raised by the litigation, before concluding with a few, rather speculative, thoughts about Ireland's choice of litigation as a strategy.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 53 , Issue 3 , July 2004 , pp. 643 - 676
Copyright
Copyright © British Institute of International and Comparative Law 2004

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References

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28 In his dissenting opinion in the Ospar Convention arbitration, Dr Griffith regards the precautionary principle as shifting the burden of proof on to the UK to show that the MOX plant would not adversely affect the marine environment: see paras 72–6 of his dissenting opinion. In the ITLOS phase of the case Judge Wolfrum was of the view that the precautionary principle was not applicable in relation to provisional measures as it would effectively mean that such measures would have to be granted whenever an applicant argued with some degree of plausibility that its rights might be prejudiced or the marine environment harmed: see p 5 of his separate opinion. But see Judge Treves in the Southern Blue/in Tuna case, below at n 41, who sees a precautionary approach as inherent in the notion of provisional measures: see para 8 of his separate opinion. See further Churchill, RR ‘International Tribunal for the Law of the Sea: The Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan). Order for Provisional Measures of 27 August 1999 ’ (2000) 49 ICLQ 979 at 988–9;Google Scholarand Brown, above n 16, at 283–6.Google Scholar

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44 Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community), Order of 15 March 2001, at <http://www.itlos.org>..>Google Scholar

45 Order of 16 Dec 2003.Google Scholar

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47 For discussion of the litigation, see Lowe, V ‘The International Tribunal for the Law of the Sea: Survey for 2000’ (2001) 16 International Journal of Marine and Coastal Law 549, at 567–9;CrossRefGoogle ScholarLowe, and Churchill, , above n 16, at 466–7;Google ScholarMcDorman, TL ‘The Chile v EC Swordfish Case’ (2000) 11 Yearbook of International Environmental Law 585;Google Scholarand Orellana, MA ‘The Swordfish Dispute between the EU and Chile at the ITLOS and the WTO’ (2002) 71 Nordic Journal of International Law 55.CrossRefGoogle Scholar

48 UK's Written Response, at 63–70.Google Scholar

49 ITLOS Order of 3 Dec 2001, at n 16, para 50.Google Scholar

50 Ibid, paras 51–3.

51 See the separate opinions of Vice-President Nelson and Judges Anderson and Jesus.Google Scholar

52 UK Counter-Memorial, at 99–103.Google Scholar

53 Above n 24, para 18.Google Scholar

54 As to which see below n 119.Google Scholar

55 The Commission had intimated this in a Written Answer in the European Parliament on 15 May 2003. Above n 24, para 21.Google Scholar

56 Ibid, para 23.

57 It is true that there is some brief discussion in the UK's Written Response in the ITLOS phase of the proceedings (see paras 168–75), but this is of a fairly cursory nature, especially in relation to the matters considered below.Google Scholar

58 Ireland's Memorial, 98.Google Scholar

59 Ireland's Reply, 45–6.Google Scholar

60 UK's Rejoinder, para 4.32. For an interesting and lucid account of the role of mixed agreements in Community law see J Heliskoski Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (The Hague Kluwer 2001). This book contains an in-depth discussion of the particular example of UNCLOS, and an account of the implications for dispute settlement of mixed agreements.Google Scholar

61 Oral Proceedings, Day 3, at 3. It is interesting to note that Ireland agrees that the ‘[t]he issue of the competence of the EC and its Member States in the context of international agreements may appear complex, but, in reality, it is a relatively simple issue.’ It seems that the only thing upon which the parties can agree is that the issues arising are straightforward!Google Scholar

62 UK's Rejoinder, para 4.45.Google Scholar

63 Ibid, para 4.50.

64 Ibid, para 4.5.

65 Look, for example, at paras 4.43–4.51 in the UK Rejoinder where the UK repeatedly uses the phrase ‘affects’ or ‘would affect’ Community roles, calling into play the ERTA doctrine (on which see 661 below). This might be thought to be particularly problematic when it comes to the issue of minimum standards. See the discussion during Day Three of the oral proceedings. The UK asserted that it was ‘ill-founded’ to suggest that ‘minimum standards are incompatible with exclusive competence’ (at 14). It is certainly the case that minimum harmonization will not invariably lead to exclusive Community competence by virtue of the ERTA doctrine. It would not be sensible, however, to exclude entirely the possibility that minimum standards might on occasion be such as to pre-empt the external relations competence of the Member States. As the recent ‘Open Skies‘ (see, eg, Case C-467/98 Commission v Denmark [2002] ECR 1–9519) litigation shows, it is necessary to make a determination on a case by case basis, having regard to the scope of the precise Community rule, and to the nature of the external obligation in question It is interesting to note that the European Court has found as regards the internal dimension of Community law, that minimum harmonization measures may, on occasion, give rise to ‘exhaustive’ harmonization. This is particularly the case where the minimum measure also regulates in a detailed manner the circumstances in which stricter standards may be applied. Thus, minimum harmonization may, on occasion, be exhaustive harmonization, and may as such pre-empt Member States' recourse to the free movement exceptions. This may be thought to indicate that the mere fact that a measure pursues a minimum harmonization approach is not in and of itself definitive when it comes to the question of the pre-emption of Member States' competence. This example from the internal sphere may, arguably, apply by way of analogy to the external domain.Google Scholar

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69 Above n 24, para 26.Google Scholar

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73 Denmark is not a party at present.Google Scholar

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78 See also Art 6(2) of Annex IX of UNCLOS which builds on this as regards state responsibility: ‘Any State Party may request an international organization or its [M]ember States which are State Parties for information as to who has responsibility in respect of any specific matter. The organization and the [M]ember States concerned shall provide this information. Failure to provide this information within a reasonable time or the provision of contradictory information shall result in joint and several responsibility.’ See also Art 5(3) of Annex IX which provides that Member States of an international organization which is party to the Convention shall be presumed to have competence over all matters governed by the Convention in respect of which transfers of competence to the organization have not been specifically declared, notified or communicated by those States. See also Heliskoski, above n 60.Google Scholar

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85 Under Art 5(2) a Member State of an international organization is required to make a declaration when it ratifies UNCLOS or at the time when the organization ratifies UNCLOS, whichever is the later, specifying those matters governed by the Convention in respect of which competence has been transferred. The twelve Member States that ratified prior to the EC (including Ireland and the UK) all made declarations recalling that they had transferred competence to the EC ‘in respect of certain matters governed by’ UNCLOS. The declarations then added that a detailed declaration on the nature and extent of the competences transferred would be made in due course in accordance with the provisions of Annex IX. Although the EC ratified UNCLOS in 1998, no further declarations have been made by the Member States as required by Art 5(2) of Annex IX and as foreshadowed in their own declarations on ratification of UNCLOS. In relation to the two Member States which ratified UNCLOS after the EC (which according to Art 5(2) should make declarations about competence upon ratification), Belgium simply refers to the EC declaration, while Luxembourg makes no declaration at all. See also Art 5(4) which requires that an international organization or State party to UNCLOS shall promptly inform the UNCLOS depositary of any changes to the distribution of competences as between them, including new transfers of competence.Google Scholar

86 Annex IX, Art 4(3).Google Scholar

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88 This is central to the case made by Ireland in its oral proceedings. It argued that Member States do not transfer competence unless the international organization in question becomes exclusively competent in the sphere. Ireland's position is somewhat ambiguous as to whether competence may be deemed to have been transferred in so far as exclusivity is not a priori, but is rather based upon the application of the ERTA doctrine, by virtue of there being common EC rules which are liable to be affected. See Oral Proceedings, Day Two, at 18 and 23 in particular.)Google Scholar

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91 It is worth noting that this reference to the Treaty would include not only mechanisms established by the Treaty itself, but also those constituted by acts adopted pursuant to the Treaty, and in accordance with it. Though UNCLOS may be considered such an act, it does not permit Annex VII arbitration to be instituted by a Member State of an international organization in so far as the dispute concerns matters in relation to which competence has been transferred. This would seem to flow from Art 4(2) of Annex IX which provides that it is for the international organization in question to exercise the rights and to perform the obligations on matters relating to which competence has been transferred by its Member States. Those Member States shall not exercise such competence as has been transferred. It will also be apparent that, in the light of this, it will be for the EC to institute any action against a third State, in so far as the subject matter of the dispute falls within the scope of the competence transferred to it.Google Scholar

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94 Most recently Case C-388/95 Belgium v Spain [2000] ECR 1–3121 (concerning designation of origin in respect of quality wines) and Case 141/78 France v United Kingdom [1979] ECR 2923 (concerning the size of mesh in fishing nets). This latter case is of some interest to the current discussion.Google Scholar

95 OJ (1997) C68/4. See also Commission Opinion of 26 Nov 2002 concerning the plan for the disposal of radioactive waste arising from the operation of the MOX Demonstration Facility at Sellafield located in the UK, in accordance with Art 37 of the Euratom Treaty (OJ (2002) C 292/7). It seems unlikely that such Commission Opinions would be susceptible to judicial review given that they do not have binding force or produce legal effects.Google Scholar

96 There does not seem to be any reason why, in principle, Ireland could not proceed by way of an action for judicial review, assuming that it meets the relevant standing requirements. See, for an example of a sovereign State instituting such an action before a UK court, Kuwait Airways Corporation v Iraqi Airways Co [2002] UKHL 19.Google Scholar

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105 UK Counter-Memorial, at 22–3. Interestingly, in its Rejoinder in the Annex VII Tribunal proceedings (at 63), the UK argues that issues concerning access to information fall within the EC's competence as far as UNCLOS is concerned. If this is correct, it would seem that such issues should also fall within EC competence as far as the Ospar Convention is concerned.Google Scholar

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107 Ibid, para 142.

108 There is no discussion at all in the Ospar Convention arbitration of the possible relationship of the Convention's dispute settlement procedures to those of UNCLOS. This omission may well be due to the fact that UNCLOS does not establish an unequivocal right to information of the kind sought by Ireland.Google Scholar

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114 See Ireland's Memorial, at 102–10. See also 47–52 of its Reply.Google Scholar

115 UK Counter-Memorial, at 103–7. See also 65–73 of its Rejoinder.Google Scholar

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117 See, eg, its proposals for the closure of Sellafield made to the Paris Commission (referred to below) in 1987 and 1988 (9th Annual Report of the Paris Commission (1987), at 22–3 and 10th Annual Report of the Paris Commission (1988), at 8–9) and statements made by various Irish ministers quoted in the UK's Counter-Memorial in the UNCLOS Annex VII tribunal proceedings, at 7–8.Google Scholar

118 Established by the Convention for the Prevention of Marine Pollution from Land-based Sources, 1974, UK Treaty Series 1978, No 64. The Paris Commission was replaced by the Ospar Commission when the Ospar Convention came into force in 1998.Google Scholar

119 See, eg, Paris Commission Recommendations 88/4, 88/5,91/4 and 93/5; Ospar Commission Strategy with regard to Radioactive Substances, 1998 (updated in 2003); and Ospar Commission Decisions 2000/1 and 2001/1, all at <http://www.ospar.org>. See also de La Fayette, L ‘The Ospar Convention Comes into Force: Continuity and Progress’ (1999) 14 International Journal of Marine and Coastal Law 247, at 275–9.CrossRefGoogle Scholar

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121 OJ (1998) Cl 17/122. See also Ospar Quality Status Report (available at <http://www.ospar.org>) para 4.8.2. According to the UK's Written Response in the proceedings before ITLOS (para 99), the Radiological Protection Institute of Ireland has acknowledged that radiation doses from Sellafield do not pose significant health risks to Irish people.)+para+4.8.2.+According+to+the+UK's+Written+Response+in+the+proceedings+before+ITLOS+(para+99),+the+Radiological+Protection+Institute+of+Ireland+has+acknowledged+that+radiation+doses+from+Sellafield+do+not+pose+significant+health+risks+to+Irish+people.>Google Scholar

122 UK Rejoinder, at 24. Ireland acknowledges this, but argues that the discharges from the MOX plant cannot be considered in isolation but must be assessed with discharges from THORP, as the latter will reprocess more spent radioactive fuel and over a longer period of time than if the MOX plant were not in operation: see Ireland's Reply, at 1. The question of whether there is a link of this kind between the MOX and THORP plants is the subject of fierce debate between Ireland and the UK. Given that THORP is responsible for not insignificant discharges into the Irish Sea, it seems a little odd that Ireland did not make pollution from THORP (or indeed the Selllafield site as a whole) the subject of litigation in its own right, rather than trying to link it to the MOX plant.Google Scholar

123 Above n 9.Google Scholar

124 See, for example, Case C-321/96 Mecklenberg v Kreis Pinneberg-Der Landrat [1998] ECR 1–3809.Google Scholar

125 OJ (1996) L 159–1.Google Scholar

126 Directive 85/337 on the Assessment of the Effects of Certain Public and Private Projects on the Environment, OJ (1985) L175/40, (as amended by Directives 97/11 (OJ (1997) L73/5) and 2003/35 (OJ (2003) L156/17)).Google Scholar

127 Ireland's Memorial to the Annex VII Tribunal, at 24.Google Scholar