The MOX Plant Case (Ireland v. United Kingdom)

The MOX Plant dispute has a long procedural and complicated history.  The dispute may be viewed as a case of forum shopping by Ireland.  However, that characterization may be unduly harsh, as the applicant sought a particular type of remedy.  The case was initially litigated in 1992 under the Convention for the Protection of the Marine Environment of the North-East Atlantic (“OSPAR Convention”).  Ten years later the dispute was filed before the ITLOS, (filing date November 9, 2001), wherein Ireland requested provisional measures: a cessation of the building and operation of the MOX plant.  As is discussed in more detail below, the ITLOS Tribunal did not provide Ireland with the relief it sought, and subsequently the dispute was arbitrated at the Permanent Court of Arbitration, (filing date July 26, 2002), and then the European Commission filed a case against Ireland, in the European Court of Justice (filing date May 15, 2003).

The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, was a dispute, between Ireland and the United Kingdom, which was filed with the ITLOS, by Ireland, on November 9, 2001.  The dispute involved the construction and operation of a plant by the U.K. that would recycle/reprocess plutonium, the by-product of nuclear fuel.  The Plant, known as the MOX (“Mixed Oxide Fuel Fabrication Facility”) plant, is located in the northwestern part of the country, across the Irish Sea from Belfast.  As noted above, the dispute dated back to 1993, when Ireland requested the United Kingdom not to build the reprocessing facility.  Ireland’s opposition to the MOX plant rested on the country’s concern that the nuclear material would spill into the Irish Sea, thereby damaging or destroying Irish fisheries and the marine environment.

Indeed, at oral argument the Irish Government asserted that it “is gravely concerned about the proposed MOX plant and its implications, either direct or indirect, for the Irish Sea.” [6]  Ireland also noted that it was quite troubled about “the proposed operation of the MOX plant and international movements of radioactive materials associated with the plant, [as well as] the fact that these concerns are widely shared by other states.” [7]  Accordingly, its agent asserted that

two incontrovertible facts are of particular significance.  The first is that the Irish Sea is amongst the most radioactively polluted seas in the world.  The second is that the main source of that radioactive pollution is the United Kingdom and that the overwhelming majority of that pollution comes from the Sellafield site on the coast of the Irish Sea where the MOX plant is intended to be brought into operation.[8]

In contrast, the United Kingdom’s initial argument rested upon its view that pursuant to UNCLOS’ the ITLOS lacked the competence to prescribe provisional measures since, the essential elements of the dispute were controlled by a number of regional accords, including European Conventions, which specified binding means of resolving contests.  The Tribunal disagreed.  It held that the Convention on the Law of the Sea, and no other law applied.

The U.K. similarly claimed that Ireland had not met UNCLOS’ prerequisites regarding the requirement of exchanging views concerning settlement of their dispute, prior to the latter’s submission of the dispute to the ITLOS.[9]  The Tribunal’s main focus was its jurisdiction.  It found that it had the competence to adjudicate Ireland’s request.  Thereafter, the Tribunal found that a State Party is not obligated to carry on an exchange of views, once it concludes that an agreement cannot be reached.

The Tribunal next considered whether provisional measures were mandatory, prior to the formation of an ad hoc arbitral tribunal, under UNCLOS’ Annex VII.  With regards to what type of adjudication should take place, the judges noted that where a party has not prescribed a preference respecting the means of adjudication, the default mechanism is ad hoc arbitration.  The Tribunal likewise noted the presence of two other dynamics that ultimately led to the denial of the remedy of provisional measures.  The first of these was the lack of an imminent or urgent reason to impose an interim remedy.  As for the second, the Tribunal observed that the United Kingdom provided its assurances that it will refrain from undertaking marine transport of radioactive materials to or from the MOX plant prior to the summer of 2002.

Finally, the Tribunal prescribed other remedies pending a decision by an ad hoc arbitral tribunal.  These included a duty by both parties to cooperate and to enter into consultations so that they could (a) exchange information concerning the possible consequences for the Irish Sea, which may arise out of the commissioning of the MOX plant; (b) monitor the risks or the consequences for the Irish Sea, from the plant’s operation; (c) and to formulate appropriate measures for the prevention of spills into the Irish Sea from the MOX plant, among others.

The Irish Government, unsatisfied with these results, sought relief at the Permanent Court of Arbitration.  The ITLOS ad hoc arbitration was pending until years later, when the Tribunal relinquished jurisdiction.  Although the ITLOS Tribunal issued a set of interim measures, all within its competence, and each of which involved cooperation and consultation, Ireland apparently still concerned that these remedies would be ineffective, declined to engage the U.K. in pursuing them.  Of course, there is the possibility that the Tribunal could have fashioned another remedy that would have better satisfied Ireland’s concerns.  However, Ireland’s rush to another forum in pursuance of its own remedy – next before the Permanent Court of Arbitration – one wonders whether Ireland was too rash in not least giving the Tribunal’s remedy a chance, or whether the ITLOS itself was not attuned to Ireland’s concerns.

[1]           See generally, International Tribunal for the Law of the Sea, Cases (2015), https://www. itlos.org/en/cases/.

[2]           Ibid. at List of Case, https://www.itlos.org/en/cases/list-of-cases.

[3]           Ibid.

[4]           Article 27, Conduct of Case, provides in pertinent part that “[t]he Tribunal shall make orders for the conduct of the case, decide the form and time in which each party must conclude its arguments, and make all arrangements connected with the taking of evidence.”  See Statute of the International Tribunal for the Law of the Sea (undated), https://www.itlos.org/fileadmin/ itlos/documents/basic_texts/statute_en.pdf.

[5]           Order at ¶ 28.1 (c) – (e) (Aug. 27, 1999), https://www.itlos.org/fileadmin/itlos/ documents/cases/case_no_3_4/Order.27.08.99.E.pdf.  (Emphasis added).

[6]           International Tribunal for the Law of the Sea, Verbatim Record, Public Sitting Held on Monday, 19 November 2001, at the International Tribunal for the Law of the Sea, Hamburg, The “MOX Plant” Case (Request for provisional measures) (Ireland v. United Kingdom), ITLOS/PV.01/06, p. 8, Lines 38-9, available at https://www.itlos.org/fileadmin/itlos/ documents/cases/case_no_10/vre1911.06.pdf.

[7]           Ibid. p. 6 at lines 33-36.

[8]           Ibid. p. 8 at lines 32-36.

[9]           Article 283 Obligation to Exchange Views

  1. When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.

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