Public international law

The mox plant case

(Ireland v. United Kingdom)

Table of contents
Sl. NO Contents Page No.
01 Abstract 03
02 introduction 04
03 Facts of the case 05
04 Ireland’s Allegations On United 06
Kingdom
05 Significance of the case 07
06 Judgment 07
07 Analysis of the case 08
08 Conclusion 09
09 Bibliography 10
 Abstract

The International Tribunal for the Law of the Sea's ninth case was the MOX Plant Case.
The MOX factory was situated near the Irish Sea town of Sellafield, Cumbria. The plan was to
"reprocess spent nuclear fuel, which contains a blend of plutonium dioxide and uranium dioxide,
into a new fuel known as mixed oxide fuel, or MOX". Ireland's concern for the safety and
defence of their territory grew fast once the power plant was installed and put into service. The
Irish government lodged a formal protest with the Tribunal as a result of the distribution of
radioactive materials and the contamination of their waters. filing date: November 9, 2001. This
assignment examines the conflict between Ireland and the UK around the running of the
Sellafield nuclear power plant. And also the concurrent jurisdiction which is overlapping
between International Tribunals and ECJ.

Key Words: MOX plant, International Tribunal, Ireland.

2
Introduction

The matters concerning the rarity of international dispute settlement were once frequently
voiced. More nations were rejecting the ICJ's mandatory jurisdiction than were adopting it. For
decades, propositions for an international criminal court had been ignored. International dispute
settlement was uncommon, saved for a few regional courts like the European Commission and
Court of Human Rights and a few specialised fields like investment arbitrations.

How much has changed since then. Concerns about the proliferation of tribunals and the
potential fragmentation of international law are now more frequently voiced in light of the
creation of the International Criminal Court, the International Tribunal for the Law of the Sea
(ITLOS), and the WTO Dispute Settlement Body, as well as the revival of arbitration under the
supervision of the Permanent Court of Arbitration and the emergence of numerous new
specialised international dispute settlement bodies. Few international environmental issues have
yet to be resolved through conventional procedures, but cases are often taken into consideration
by more recent, quasi-legal noncompliance mechanisms1.

The MOX lawsuit has served as the face of the developing problem of segmentation in
international law. Four different forums have been involved in the proceedings: an arbitral
tribunal established in accordance with Article 21 of the OSPAR Convention for the
Environmental protection of the North-East Atlantic, ITLOS, an arbitral panel established in
accordance with Annex VII of the UN Convention on the Law of the Sea (UNCLOS), and the

3
European Court of Justice (ECJ). The conflict relates to the Irish Sea's potential radioactive
contamination by Sellafield, an English manufacturing facility for mixed oxides (MOX).

1.
Jan.Klabbers, “Compliance.Procedures,” in Bodansky, et al, Oxford Handbook, 4, at 995.

Facts of the case

A nuclear facility is owned and run by British Nuclear Fuel, ltd (BNFL), a public limited
company that is entirely owned by the United Kingdom, in Sellafield in Cumbria, in North-West
England. The biggest and leading civilian nuclear station in the UK is Sellafield, and controversy
has long surrounded its operations. In 1993, BNFL submitted an application to the local
authorities seeking permission to construct and run a MOX Plant that would recycle the
plutonium created during the refining of nuclear fuel to recover the uranium it contained.

This particular uranium is used to make "mox" fuel, a mixture of uranium dioxide and
plutonium dioxide that is utilised as fuel in nuclear reactors2. The essential permissions to
construct the plant were granted by the UK's competent authorities in 1994, and work on it was
finished in 1996. A decision reached on October 3, 2001, permitted the production of Mox in this
specific plant. There are numerous legal processes stemming from this ruling. This issue has
involved, and continues to involve, numerous jurisdictions.

Ireland has long been apprehensive about the radioactive emissions from the Sellafield,
United Kingdom,-based Mox Plant that are released into the Irish Sea. Ireland started legal action
against the U.K. by bringing two distinct claims after failing to get the U.K. to provide
information on the discharges from the Mox Plant3.

4
 M. J.C. FORSTER,. “The Mox.Plant case.– Provisional.Measures in.the International.Tribunal for the.Law of.the
2.

Sea”, Leiden Journal of.International Law, vol. 16, number 3, October 2003, pg. 612-613.
3.
Y. Shany., The First MOX.Plant Award: The.Need to Harmonize. Competing Environmental Regimes.and
Dispute.Settlement. Procedures, 17 Leiden Journal.of International Law.815, 815-828 (2004).

Ireland’s Allegations On United Kingdom

In its Statement of Case, Ireland claimed that the United Kingdom had violated numerous
UNCLOS clauses by approving the Mox Plant. These included the overarching principles
outlined in Articles 1924, and 1935, as well as the duty to take all necessary steps to ensure that
activities carried out under British jurisdiction and control do not harm the marine environment 6,
as well as the obligation to prevent, reduce, and reduce emissions from land-based sources,
vessels, and other sources.

Ireland specifically claimed that the UK had not taken all appropriate precautions to stop,
minimise, or mitigate its effects of the Irish Sea from pollution that comes from the Mox Plant,
from accidental releases from the Mox Plant, or during transportation;

-had not given enough thought to the potential effects of a terrorist attack; and

-had, by refusing to release relevant data about the Plant,

Ireland requested a court ruling for a range of preventative measures, including that of the
freezing of the authorisation.

4.
‘States have the obligation to protect and preserve themarine environment.’

‘States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in
5.

accordance with their duty to protect and preserve the marine environment ’ (emphasis added).
6.
UNCLOS, Art. 194.

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Significance of the case

A number of significant developments in global environmental law are addressed and

brought to light by the Mox Plant Case. First of all, it shows how sophisticated a system may be
when the same concerns are covered by numerous agreements between the same parties. Because
of this, at least four separate international jurisdictions are currently interested in this issue,
which presents procedural difficulties.

Secondly, the Mox Plant Case exemplifies the diversity of perspectives on the meaning
and character of the concept of "availability of information" and its connection to other related
and contemporaneous notions, such as "collaboration," "coexistence," "participation," etc., by
and among nations, that exist in the area of international environmental law. The definition of
this term changes depending on who is disputing it.

Judgment of the case

In accordance with Article 32 of the Convention for the Protection of the Marine
Environment of the North-East Atlantic, Ireland proposed the establishment of an arbitral
tribunal in June 2001. (the OSPAR Convention). According to its argument, Article 9 of the
OSPAR Convention required the UK to make information on the proposed Mox Plant available.
The UK steadfastly declined to comply. In July 2003, the Arbitral Tribunal issued its definitive
Award. It declined to comply with Ireland's request since the information requested, which

6
concerned more "economic" than "environmental" aspects of the plant, did not fall within Article
9(2) of the OSPAR Convention.

Ireland established an arbitration process in accordance with Article 287 of the UN

Convention on the Law of the Sea in October 2001. (UNCLOS). The choice has not yet been
made. The Arbitral Tribunal determined that "further hearings in the case shall be postponed till
the European Court of Justice has issued judgement or the Tribunal otherwise determines" in an
Order issued in November 2003.

Ireland similarly requested temporary measures from the International Tribunal for the
Law of the Sea in November 2001. (ITLOS). Due to the urgency of the procedure, the decision
was made in December 2001, one month later. The parties were required by the ITLOS to
cooperate and start talks right away, which included exchanging information7.

The European jurisdiction also is interested in this matter, to sum up. The European
Commission filed a complaint against Ireland with the European Court of Justice (ECJ) in 2003,
supporting the United Kingdom's stance before the Arbitral Tribunal established by the
UNCLOS.

Analysis of the case

The first case to draw attention to potential issues with the exclusive jurisdiction of the
ECJ and the proliferation of international courts and tribunals was the Mox Plant dispute. The
ECJ made it plain that it would vigorously maintain its exclusive jurisdiction over any conflicts
between EC states parties that might entail EC law. The ECJ accomplished this by significantly
restricting the ability of EC member states to choose a dispute resolution forum.

The ECJ seeks to safeguard the consistent implementation of European union law in all
EC individual countries in this manner. The OSPAR and UNCLOS arbitral courts, however, took
very different methods, demonstrating that the ECJ cannot compel them to consider EC law or,
for that matter, the ECJ's jurisdiction. The UNCLOS arbitral tribunal displayed goodwill by
asking the parties to first determine if the ECJ's jurisdiction is activated in this matter and by
ordering a stay of the proceedings. The OSPAR arbitral panel, in contrast, exhibited no courtesy
toward the ECJ.

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 ITLOS, The Mox Plant case (Ireland vs United Kingdom), Request for. provisional measures, Order.dated
7.

December.3, 2OO1, Case number 10.

The Mox Plant case also demonstrated the ECJ's weakness in maintaining its exclusive
jurisdiction, particularly its inability to stop member states from turning to a different court. If
the Commission decides it is necessary and appropriate, it is the only entity that can intervene. In
conclusion, the Mox Plant case shows fracturing effects with regard to the OSPAR Convention
and EC access to information legislation while also exhibiting unifying effects by maintaining
the uniform implementation of EC environmental law with regard to UNCLOS law.

Conclusion

In terms of substance, the case's contribution to the evolving notion of cooperation and
collaboration in international environmental law may very well be what people remember it for
the longest. The Mox Plant Case analysis highlights the strong connection between both the
principle of cooperation and the right to access environmental information, with the former
requiring the latter to be effective, in the context of the development of international law in
general and international environmental law in particular. The transition from a rigorous
application of the idea of state sovereignty to a more integrated perspective, which is now
entrenched in international environmental law and governance, is the second key factor. An
interdependent governance and management of environmental concerns is required due to the
interconnected nature of the environment.

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 Bibliography

Jan.Klabbers, “Compliance.Procedures,” in Bodansky, et al, Oxford Handbook, 4, at 995.

1.

2.
M. J.C. FORSTER,. “The Mox.Plant case.– Provisional.Measures in.the International.Tribunal
for the.Law of.the Sea”, Leiden Journal of.International Law, vol. 16, number 3, October 2003,
pg. 612-613.

3.
Y. Shany., The First MOX.Plant Award: The.Need to Harmonize. Competing Environmental
Regimes.and Dispute.Settlement. Procedures, 17 Leiden Journal.of International Law.815, 815-
828 (2004).

4.
‘States have the obligation to protect and preserve themarine environment.’

‘States have the sovereign right to exploit their natural resources pursuant to their
5.

environmental policies and in accordance with their duty to protect and preserve the marine
environment ’ (emphasis added).

UNCLOS, Art. 194.

6.

ITLOS, The Mox Plant case (Ireland vs United Kingdom), Request for. provisional measures,
7.

Order.dated December.3, 2OO1, Case number 10.

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