PERMANENT COURT OF ARBITRATION: THE MOX PLANT CASE (IRELAND V.

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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PERMANENT COURT OF ARBITRATION: THE

PLANT CASE (IRELAND V. UNITED KINGDOM)*

[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

Sir Arthur Watts KCMG QC

24 June2003
Procedural

background

On 25 October 2001 Ireland,pursuanttoPartXV of theUnitedNations Conventionon theLaw of theSea

arbitral
("theConvention"), submittedto theUnited Kingdom a Notification and Statementof Claim instituting
1.

"in the dispute concerning theMOX plant, international

proceedings as provided for inAnnex VII to the Convention
movements of radioactive materials, and the protection of themarine environment of the Irish Sea". On the same date

Irelandalso submittedto theUnited Kingdom a Request forprovisionalmeasures pending theconstitutionof an

arbitral tribunal under Annex VII

2.

In accordance

with article 290, paragraph 5, of theConvention, Ireland submitted itsRequest

on 9 November 2001.
to the International Tribunal for the Law of the Sea ("ITLOS")

measures
3.

to the Convention.

On 3 December

article 290, paragraph

2001, ITLOS made

5, of the Convention,

for provisional

an Order

(the "ITLOS Order") prescribing a provisional measure under

a
decision by theAnnex VII arbitral tribunal" (ITLOS Order,
"pending

paragraph89). Inmaking itsOrder, ITLOS found,as is requiredby article290, paragraph5, "thattheAnnex VII
arbitraltribunal
would primafacie have jurisdictionover thedispute" (ITLOS Order, paragraph62).
4.

On 21 January2002, Irelandfiled a NotificationandAmended StatementofClaim andGrounds onwhich

it is Based.

5.

The Annex VII arbitraltribunal("theTribunal")was duly constitutedinFebruary2002. The Tribunal, in

article 1, paragraph 3, of its Rules

Arbitration to serve as the Registry.

This

document

was

of Procedure,

reproduced

and

appointed

reformatted

the International Bureau

from the text appearing

of the Permanent

at the Permanent

(visitedSeptember 14,2003) <http://www.pca-cpa.org>.

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Court

Court of

of Arbitration

website

1188

International Legal Materials

On 2 July 2002, the Tribunal approved,

and Grounds on which it is Based.

6.
Claim

in itsOrder No.

[Vol. 42:

7, Ireland's Notification

and Amended

Statement of

of Procedure, as modified by Order No. 2 of 10 December

2002 ("the Rules of Procedure"),
the
established the timetable for the submission of written pleadings by the Parties in a Memorial,
Counter

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)

Mr. Rory Brady SC (Attorney

General)

Mr. Eoghan Fitzsimons SC (as Counsel)

Mr. Paul Sreenan SC (as Counsel)

Prof.Philippe Sands QC (as Counsel)

Prof. Vaughan

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.

produced by or as a result of the operation of theMOX

plant, which is a new reprocessing plant
at Sellafield in theUnited Kingdom. This reprocessing plant is designed to reprocess spent nuclear fuel into a new
fuel (known as mixed oxide fuel, or "MOX") made from a mixture of plutonium dioxide and uranium dioxide. The
spent nuclear fuel reprocessed at theMOX plant comes principally from another plant at Sellafield, theThermal Oxide
radioactive wastes

ReprocessingPlant ("THORP" ).TheMOX andTHORP facilitiesareoperatedbyBritishNuclear Fuels pic ("BNFL"),

with

the authorisation

Kingdom

Government.

of the United Kingdom

Government.

BNFL

is a corporation wholly

It is apparent from the nature of operations carried out at theMOX

and THORP
quantities of radioactive substances. Sellafield, where theMOX
10.

owned

by the United

and THORP

facilities that they involve

facilities are located, is on thewest coast

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

in isolation from the rest of the Sellafield

plant alone, considered
that flow from the establishment and operation of theMOX
plant,

includingtheconsequences flowing fromthe increasedactivityat theTHORP plant thatis supportedby theMOX

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1189

PCA:Mox Plant Case (Ireland v. U.K.)

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.

through the Irish Sea

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

between thetwoStates; and thatitgives Irelandcorresponding

rights.IrelandcontendsthattheUnited Kingdom is
inbreachof theobligationsundervarious articlesof theConvention (includingarticles 123,192,193,194,197,206,
207, 211, and 213), and Ireland accordingly seeks from theTribunal appropriateremedies against theUnited
Kingdom.

For itspart,theUnited Kingdom raises variousquestions relatingto thejurisdictionof theTribunal tohear

13.
merits theUnitedKingdom
and determinethemeritsof thedispute submittedto itby Ireland.In any event,on their
in
of
under
theConvention.
is
the
breach
anyobligations
rejectsIreland'sallegations that UnitedKingdom
The Tribunal's jurisdiction to decide themerits
AnnexVII Tribunalwould primafacie have jurisdiction
As notedabove, ITLOS found,in itsOrder, that"the
14.
over thedispute" (ITLOS Order,paragraph62). The Tribunal sees no reason todisagreewith thefindingthatprima
facie ithas jurisdiction.Irelandand theUnitedKingdom arebothparties to theConvention; thearbitraltribunalhas
been duly constitutedinaccordancewithPartXV of theConventionandAnnex VII to theConvention; itis apparent
that Ireland has presented

its claims on the basis of various provisions

of the Convention;

the Parties agree that there

and application of the

is a dispute concerningtheMOX plant; thatdispute clearly concerns the interpretation
Convention (in thattheParties have adopted differentlegal positions on thatmatter); and thereis nothingwhich
manifestly

15.

and in terms excludes

the Tribunal's

jurisdiction.

However, beforeproceeding to any finaldecision on themerits, theTribunalmust satisfyitselfthatithas

jurisdiction

in a definitive

sense. Moreover,

even to proceed

to hear argument on themerits of the dispute brought

before it,theTribunal needs tobe satisfiedat least thatthereare no substantialdoubts as to itsjurisdiction.

The UnitedKingdom raisesobjections to thejurisdictionof theTribunal,which fall intotwocategories.First,

16.
theUnitedKingdom raises a numberof questionsof jurisdictionand admissibilityinrespectof theConvention itself

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

that none of the issues raised casts doubt on itsprima facie

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

substantiallycovers thefield of thepresentdispute so as to triggertheapplicationof articles281 or 282 of the

Convention.

at some length the question

Convention)
arising under other treaties (e.g. the OSPAR
19.

The Parties discussed

of the scope of Ireland's claims, in particular its claims

or instruments (e.g. the Sintra Ministerial
Statement,

adopted at a meeting of theOSPAR Commission on 23 July 1998), having regardto articles288 and 293 of the

Convention.

The Tribunal

agrees with theUnited Kingdom

that there is a cardinal distinction between

the scope of

itsjurisdictionunderarticle288, paragraph 1,of theConvention,on theone hand, and the law tobe applied by the

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1190

International

[Vol. 42:

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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)

thestandingof Irelandto institute

proceedingsbefore thisTribunal in relianceupon theConvention
which it invokes;
rights

(ii)

thestandingof theUnited Kingdom to respond to suchproceedings;

thedivisionof competencesbetween theEuropeanCommunity(ofwhich both Irelandand theUnited
Member States inrespectof theConvention,particularlyin the
Kingdom areMember States) and its

(iii)

light of the declarations made

Annex IX to the Convention;1

by the Parties and the European

Community

pursuant

to article 5 of

(iv)

invokedby thePartiesmay properlybe reliedupon

theextenttowhich provisionsand instruments
before thisTribunal; and

(v)

thematterswhich, by agreementof theParties, are subject to the exclusive jurisdictionof the

European

Court of Justice under European

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,

extends to the interpretation and application

of theConvention

as such and in its entirety.

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

Statesof theEuropeanUnion, itcannotbe saidwith certaintythatthisviewwould be rejectedby theEuropean Court

of Justice. The Parties agreed

in argument that, if this view were

to be sustained,

itwould

of thepresentTribunal entirely,by virtueof article282 of theConvention.

23.

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

and 282 of the Convention,

theTribunal could apply to thedisputebroughtbefore itby Ireland,are cruciallydependentupon theresolutionof

the problems

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

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1191

PCA:Mox Plant Case (Ireland v. U.K.)

2003]
are to be determined within

the institutional framework of the European Communities.

law issues are still to be resolved, and there is a risk of considerable further delay.

25.

Despite

The European

this risk, the fact remains that, until these issues are definitively resolved,

Community

there remain substantial

doubtswhether thejurisdictionof theTribunal can be firmlyestablished in respectof all or any of theclaims in the
dispute.

Although itispossible thattheTribunalmight conclude fromtheargumentsof theParties thatat leastcertain

provisions of theConvention do not fall within the exclusive jurisdictionand competence of theEuropean
Communities in thepresentcase, itwould stillnotbe appropriatefor theTribunal toproceedwith hearingson the
26.

merits

in respect of any such provisions.

For one thing, it is not at all clear at this stage that the Parties are able to

with any certainty

what suchprovisionsmightbe; and theTribunal is inno betterposition.For another,there
identify
no
is certaintythatany suchprovisionswould infactgiverise toa self-contained
and distinctdisputecapable ofbeing

resolved by the Tribunal.

Finally,

the Tribunal

notes that,whatever

the Parties may agree in these proceedings

as to

thescope and effectsofEuropeanCommunitylaw applicable in thepresentdispute,thequestion isultimatelynot for

of theEuropean Communities,and particularlyby
themtodecide but is rathertobe decidedwithin the institutions
the European

Court of Justice.

27.

The Tribunalobserves thattheresolutionof theessentiallyinternal

problemswithin theEuropeanCommunity
are
observes thatitsdecision, including
legalordermay involvedecisions that final and binding.The Tribunal further
a decision on jurisdiction,
will be final and bindingon theParties by virtueof article296 of theConvention and
article 11 of Annex VII

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.

Suspension of furtherproceedings on jurisdiction and merits

29.

For these reasons, theTribunal has decided,

in exercise of itspowers under article 8 of theRules

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

will resume its proceedings

not later than 1December

picture of the position

appertain to the present dispute.
Ireland's

request

for further provisional

measures

In announcing its decision to suspend further proceedings

in the case, the Tribunal stated itswillingness,
in
the circumstances now prevailing, to consider the possibility of prescribing provisional measures
if either Party
considers that such measures are necessary to preserve the respective rights of the Parties or to prevent serious harm
31.

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

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1192
33.

International

The provisional measures

(A)

requested by Ireland are as follows:

Discharges
(i)

The UnitedKingdom shallensure thatthereare no liquidwaste dischargesfromthe

MOX Plant at Sellafield intotheIrishSea.

(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

(Note: the following is on a confidentialbasis)

In theeventof anyproposal foradditionalreprocessingatTHORP ormanufacturing

atMOX, (by referenceto existingbinding contractualcommitments),theUnited
inrelationto the
Kingdom will notifyIreland,provide Irelandwith full information
proposal

(ii)

from MOX,
from THORP,

and consult with, and consider and respond to issues raised by, Ireland.

The United Kingdom will informtheIrishGovernmentas soon as possible of the

precise

date and time at which

it is expected

that any vessel

carrying radioactive

substances toor fromtheMOX or THORP Plant or to a storagefacilitywith the

possibilityof subsequent reprocessingormanufacture inTHORP orMOX will
arrive within Ireland's Pollution Response
and shall inform Ireland on a daily basis
such vessel.

(iii)

Zone, SAR Zone or within the Irish Sea,

as to the intended route and progress of

The United Kingdom shall ensure thatIreland is promptlyprovidedwith:

a.

Monthly informationas to the quantity (in becquerels) of specific

radionuclidedischarges in theformof liquid and aerialwaste discharges
arisingfromtheMOX Plant and separatelyfromtheTHORP Plant,and the
flow sheets relating to environmental discharges liquid and aerial referred
to at paragraphs 118 and 124 ofMr Clarke's first statement;

b.

information as to the volume of waste

Monthly
volume vitrified during the previous month;

c.

All research studies carried out or funded inwhole

in theHAST

tanks and the

or in part by or on behalf

of theUnitedKingdom governmentor anyof itsagencies orBNFL intothe

effectof liquidor aerial discharges,fromtheMOX orTHORP Plant,upon
the Irish Sea,

d.

its environment or biota;

Full detailsof any reportableaccidentsor incidentsat theMOX orTHORP

Plant

or associated

facilities,

that will

be

the subject of a report to the

United Kingdom's Health and SafetyExecutive (or any otherpublic body

with responsibilityforhealthand safetyat theSellafield site);
e.

Access

to, and theright and facility tomake

a copy of Continued

Operation

Safety Reports (including the Probabilistic Risk Assessments) and

associated

documents

relating to the Sellafield

site;

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PCA:Mox Plant Case (Ireland v. U.K.)

2003]

1193

The resultsof reappraisals since 11 September2001 of the risks to the

MOX Plant andTHORP and associated facilitiessuchas theHAST tanks,

f.

and of themeasures

taken to counter any change

in the level of the perceived threat.

since 11 September

2001

The United Kingdom shall co-operateand co-ordinatewith Ireland in respectof

(iv)

emergency planning and preparedness in respect of risks arising out of reprocessing,

fuel manufacture and storage of radioactive materials
MOX
including providing
Ireland with such information as is necessary to take appropriate response measures.

The United Kingdom shall co-operatewith Ireland in arrangingtrilateralliaison

between theIrishCoastguard,BNFL/PNTL and theUnitedKingdom'sMaritime and

(v)

Coastguard

to or from

in respect of all shipments of radioactive materials

Agency

theMOX and/orTHORP Plants.

(C)

Assessment

The United Kingdom

shall ensure that no steps or decisions are taken or implemented which might
full
effect
preclude
being given to the results of any environmental assessment which the Tribunal

may ordertobe carriedout inaccordancewithArticle 206 ofUNCLOS

inrespectof theMOX Plant

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

In itsRequest, Irelandstatesthat"thecircumstancesjustifyingthisrequestincludethelikelydurationof the

suspensionof thehearingand therealpossibilityofproceedingsbeforetheEuropeanCourtof Justice,and theconduct

34.

of theUnited Kingdom
The Tribunal's
35.

as outlined

with regard

competence

The question

in the pleadings."

to provisional

of provisional measures

measures

under the Convention

and

the applicable

rules

is governed by article 290, which

provides:

Article 290
Provisional

Measures

If a disputehas been duly submittedtoa courtor tribunal

1.
which considersthatprimafacie
ithas jurisdictionunder thisPart or PartXI, section 5, thecourtor tribunal
may prescribe any
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.

or revoked as soon as the circumstances

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justifying

1194

[Vol. 42:

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International

may be prescribed, modified or revoked under this article only at the

request of a party to the dispute and after the parties have been given an opportunity to be heard.

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

Pending theconstitutionof an arbitraltribunaltowhich a dispute is being submittedunder

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.

The parties to the dispute

6.
under this article.
36.

As

already

stated, by its Order,

shall comply promptly with any provisional measures

ITLOS,

acting pursuant

to article 290, paragraph

prescribed

5, of the Convention,

prescribed a provisionalmeasure, "pending a decision by theAnnex VII arbitral tribunal." (ITLOS Order,
paragraph89)
The provisional measure

37.

prescribed

Ireland and theUnited Kingdom

by ITLOS

was:

shall cooperate

and shall, for this purpose,

enter into consultations

forthwith in order to:

(a)

(b)
(c)

exchange

further information with regard to possible

consequences

for the Irish Sea

arisingout of thecommissioningof theMOX plant;

monitor
devise,

risks or the effects of the operation of theMOX

as appropriate, measures

to prevent pollution

plant for the Irish Sea;

of themarine

environment

whichmight resultfromtheoperationof theMOX plant.

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.

of theAnnex VII ArbitralTribunal" (ITLOS Order, paragraph81).

39.
measures

Ireland's request for additional provisional

Although a provisional measure was prescribed by ITLOS,
to
Tribunal.
the
Tribunal's
is the first such request
this
Hence,
competence to prescribe provisional measures

is containedinarticle290, paragraph 1,of theConvention,and is subjectto theprovisionsofparagraphs2 to4 of that

article.
40.
in which

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

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if necessary, warrant modification

would,
article 290, paragraph 5, of the Convention.
41.

1195

PCA:Mox Plant Case (Ireland v. U.K.)

2003]

For the reasons previously

measure

of the provisional

explained,

the Tribunal

considers

prescribed

by ITLOS

thatprima facie

in accordance

it has jurisdiction

with

over the

dispute,which has been duly submittedto itby Ireland inaccordancewithPartXV of theConvention.Accordingly,

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.

In consideringtheRequest, theTribunal is governedby the termsof article290 of theConvention, the

relevant provisions

of Annex

VII

and its Rules

of Procedure.

Article

1, paragraph

2, of the Rules

of Procedure

provides that"totheextentthatanyquestionof procedure isnot expresslygovernedby theseRules or byAnnex VII

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 thatconnection,theTribunal notes thataccording to article 89, paragraph5, of the ITLOS Rules of

to prescribe measures different inwhole or in part from those requested. A similar

it is open to ITLOS
provision is contained in article 75, paragraph 2, of the Rules of Court of the International Court of Justice. The
Tribunal, having drawn these provisions to the attention of the Parties without comment from either, considers that
it is also competent to prescribe provisional measures other than those sought by any Party.
Procedure,

The position of theParties on theprovisionalmeasures requested

44.

In accordance

with article 290, paragraph

3, of the Convention,

both Parties made

extensive

submissions

concerningtheRequest, inhearingson 17, 18,20 and 21 June2003.

45.

Ireland argues that discharges

from theMOX

plant (as well

as increased discharges

from THORP

resulting

fromtheoperationof theMOX plant),particularlybecause of theirradioactivecharacterand thevery longhalf-life

ofmany of theradionuclidesinvolved,not only constituteseriousharm to themarine environment
of theIrishSea,

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

it sees as a number of specific failures by theUnited Kingdom

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

small" and do not constitute or threaten serious harm to thatmarine

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

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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

Order, and there is therefore no basis

In a letterto theAgent of Irelanddated 13 June2003 (whichwas copied to theTribunal) theAgent of the

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

atTHORP would be takenwithout consultationinwhich Irelandwould be invitedtoparticipate."The Agent of the

United Kingdom

certain statements, on a confidential

also made

basis, relating to shipments ofMOX

fuel.

In oral argument, theAttorney-General

for theUnited Kingdom also drew attention to theUnited Kingdom's
for intergovernmental co-operation
in
earlier offer to engage in a general review with Ireland of themechanisms

48.

respectof theconcernsof Irelandas to theSellafieldplant, includingthosepartsof itcomprisedinthepresentdispute.

49.

The Tribunal

notes, and places on record, the statements made

47 and 48 above.

on behalf of theUnited Kingdom,

which

are

referred to in paragraphs

On the final day of oral argument on itsRequest,

in the following terms:

50.

The Governments

of theUnited Kingdom

Ireland tabled a revised text of paragraph

(C) of theRequest,

and Ireland should each of them ensure that no action of

anykind is takenwhichmight prejudice therightsof theotherParty in respectof thecarryingout

of whatever decision theTribunalmay render in the case, including in relation toArticle 206
UNCLOS.
For its part theUnited Kingdom,

51.

while

denying

the need for any further provisional

measures,

seeks from

theTribunal a direction thatIreland "takeall stepswithin itspower to expedite theresolutionof theoutstanding

under European

questions

The Tribunars

Community

law, and to inform it, and the Tribunal,

on provisional

conclusions

of developments.

measures

if these are appropriate, in the

noted already, the Tribunal may only prescribe provisional measures
in
of
"to
the
and
the
the
information
circumstances
available,
preserve
respective rights of the parties
light
prevailing
"
or
to
to prevent serious harm
to the dispute
themarine environment. Furthermore, the relevant period for this purpose
is the period "pending the final decision." Harm which may be caused thereafter is a matter to be considered in the
52.

As

context of the case on themerits.

A.
53.

harm

to the marine

environment

the Convention clearly identifies the prevention

of provisional measures,
environment as a special consideration, and it is appropriate to deal with that first.

For the purposes

to themarine

54.

Serious

of serious harm

As theTribunalhas alreadynoted, theliquidwastes dischargedfromthe

MOX plant intotheIrishSea contain

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.

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environment by virtue of the operation of theMOX

this threshold test.

B.
56.

1197

PCA:Mox Plant Case (Ireland v. U.K.)

2003]

plant, pending

the determination of this case on themerits, meets

Protection of the rightsof theParties

Ireland also argues

that provisional measures

were necessary

to protect its rights under the Convention

(a)

inrespectofdischarges intotheIrishSea with potentialeffectson Irishwaters, (b) inrespectof co-operationwith the

UnitedKingdom tominimize harm to themarine environment
and (c) inrespectof itsclaimedrightthat,thepotential
effects of theMOX

plant not having been adequately

assessed,

either in themselves or in terms of increased discharges

resultingfromTHORP, itwas a violationof Ireland'srightsinparticularunderarticle206 of theConvention forthe

discharges

to continue, even in the period before the final decision.

The United Kingdom,

in opposing these measures, notes that some of them at least are capable of having a
on
serious impact
its own rights, in particular to the continued lawful operation of theMOX
plant in the period
a
or
stresses
the
to
final
and
it
that
interests
of
both
have
be
taken
into account in any
decision,
pending
rights
parties
57.

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

toprotecttherightsof theParties is thatthereneeds tobe a showingboth of urgencyand of irreparable

harm to the

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

focusing on improved co-operation

between

the Parties and the provision

of information.

notes thatin theperiod since itwas constituted,

The Tribunalfurther
60.
Irelandcouldhave soughtamodification
of the ITLOS Order if ithad been dissatisfiedwith itsoperation,or it could have soughtadditionalprovisional
measures ifevidence available to ithad indicatedan urgentneed for themin termsof thecriteriain article290,
paragraph

61.

1.

Turningfirstto thequestionof discharges (paragraph(A) of theRequest), theTribunalhas before itamuch

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

arisingby reasonof theMOX plant and fallingwithin the scope of thepresentproceedings.

62.

For these reasons, the Tribunal

is not satisfied that in the present circumstances

there is an urgent and serious

riskof irreparable
harm toIreland'sclaimedrights,whichwould justifyitinprescribingprovisionalmeasures relating
to discharges

63.

from theMOX

plant.

As to thequestionof assessment (paragraph(C) of theRequest), theTribunalnotes thatthisispresentedas

a key part of Ireland's case on themerits. In this respect, Ireland

emphasised
Convention. The Tribunal would also draw attention to article 204, paragraph

the provisions of article 206 of the

2. But the Tribunal does not believe

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

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1198
context theTribunal

64.

does not consider

thatparagraph (C) of theRequest, in either of its versions, would

of what conduct is required of itpending a final decision.

to theUnited Kingdom

guidance

Turning

[Vol. 42:

Legal Materials

International

to the question

of co-operation

between

the Parties

in relation to the preservation

give any clear

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

Order requires the Parties

and to enter into consultations

forthwith for the purposes

specifiedin theITLOS Order. In itsReply Irelandacknowledged thatsince theITLOS Order, therehad been some
improvement

of co-operation

in the processes

and the provision

of information; but it pointed

to a number of

The United Kingdom provideddetailed responses to individualpoints raisedby Ireland.

continuingdifficulties.
66.

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

2001, there has been an increased measure of co-operation and consultation, as

On
the
other hand, the Tribunal is concerned that such co-operation and consultation
the
ITLOS
Order.
required by
may not always have been as timely or effective as it could have been. In particular, problems have sometimes arisen,
both before and since the ITLOS Order, from the absence of secure arrangements, at a suitable inter-governmental
level, for coordination of all of the various agencies and bodies involved. The United Kingdom's
paragraph 48 above, to review with Ireland thewhole system of intergovernmental notification
this context should once again be recalled.

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.

with thepracticeof ITLOS thateach Party should submitreports

The Tribunalnotes also thatit is consistent

and information on compliance

with the Tribunal's

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

and the expenses

of Procedure, the Tribunal

of the Tribunal.

reserves until its final Award

any decision

as to the costs of the Parties

The Tribunars Order

For the foregoing reasons
THE

TRIBUNAL,
Convention, makes

unanimously, pursuant
the following Order:

to articles

1 and 8 of its Rules

of Procedure

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and article 290

of the

1199

PCA:Mox Plant Case (Ireland v. U.K.)

2003]
1.

Decides thatfurther
proceedings in thecase are suspendeduntilnot laterthan 1December 2003;

2.

Affirmstheprovisionalmeasure prescribedby ITLOS in itsOrder of 3December 2001 ;

3.

Rejects

Ireland's Request

in so far as concerns paragraphs

for Provisional Measures

(A) and (C) of

the Request;
4.

Decides,

insofar as concerns

paragraph (B) of the Request, having regard to the considerations

64 to 67 above, that no further order is required as to co-operation and the provision

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

tonotifytheTribunal and each otherof all relevantdevelopments;

7.

Decides,

thatno laterthan12 September2003, Irelandand theUnitedKingdom shalleach submitto

on compliancewith the
theTribunal and to theotherPartyan initialreportand information

(a)

provi donai measure

affirmed, and the recommendations

in paragraph 67 above, by the

made

Tribunal in thepresentOrder;

thatsubjecttoany further
orderof theTribunal,not laterthan17November 2003, a further

(b)

report and information on compliance

to keep under review the possible

(c)

Instructs the Registrar

8.
Done

at The Hague

need for furthermeasures

to provide a copy of this Order

to the European

in this connection;

and

Commission.

this twenty-fourth day of June two thousand and three.

/s/
Thomas

shall be submitted; and

A. Mensah

President

A/
Anne

Joyce

Registrar

ENDNOTES
1.

2.

For

the declaration

texts, see <http://www.un.org/Depts/los/convention_agreement/convention_declarations.htm>.

European ParliamentPlenary Session, Oral question by Proinsias De Rossa (H-0256/03), SittingofThursday, 15May 2003.

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