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3286 KLI EEELR 18-3 jun 2009 6/5/09 18:02 Page 2
The Epilogue in the MOX Plant Dispute
The Epilogue in the MOX Plant
Dispute: An End Without
Findings
Nikolaos Lavranos*
I. Introduction
Recently, the UN Law of the Sea (UNCLOS) Arbitral
Tribunal terminated the proceedings in the MOX plant
dispute between Ireland and the United Kingdom
(UK) concerning the possible radioactive emissions of
the MOX plant situated in Sellafield, UK.1 This
decision, which did not adjudicate on the substantive
issues of the case, marks the end of the dispute
between both EC Member States that started in 2001.
Accordingly, it is a good moment to evaluate the
outcomes of this dispute. However, before doing so, it
is appropriate to shortly summarize the various stages
of the dispute.2
For many years Ireland has been concerned about
the radioactive emissions of the MOX plant, which
leak into the Irish Sea contaminating the Irish coast as
well as causing an increase in cancer cases in the
population living there. In order to properly assess the
problem and deal with it accordingly, Ireland had been
requesting for years from the UK all relevant data
about the emissions and accidents of the MOX plant.
Having been unsuccessful, Ireland initiated two
proceedings against the UK. The first proceeding
was initiated within the framework of the Convention
for the Protection of the Marine Environment of the
North-East Atlantic 1992 (OSPAR) by arguing that
the UK is obliged to make available the data requested
by Ireland; the second, within the framework of
UNCLOS 1982, claiming that the UK violated
UNCLOS provisions by polluting the Irish Sea. As a
result, both parts of the dispute were brought before
two different international ad hoc arbitral tribunals
for adjudicating the claims of Ireland.
The OSPAR Arbitral Tribunal decided that the UK
had not violated its obligations under OSPAR and
thus was not required to make available to Ireland the
requested data.3 Since this dispute was between two
EC Member States and potentially involved EC
legislation, thereby triggering the exclusive jurisdiction
of the ECJ, the OSPAR Arbitral Tribunal could have
considered taking EC law into account or even
abstaining from exercizing its jurisdiction. However,
the OSPAR Arbitral Tribunal neither considered itself
competent to take other sources than OSPAR provisions
into account, nor found it necessary to abstain
from exercizing its jurisdiction for the benefit of the
ECJ.4
The UNCLOS Arbitral Tribunal, before proceeding
to the substance of the case, was faced with an
objection raised by the UK arguing that the UNCLOS
Arbitral Tribunal does not have jurisdiction to decide
this dispute. Instead, the UK argued that since this
dispute also touches on EC environmental legislation,
the ECJ has exclusive jurisdiction according to Article
292 EC5 and therefore should decide this dispute. The
UNCLOS Arbitral Tribunal found this objection ±
prima facie ± valid and thus suspended the proceedings
of the case and ordered the parties to first find out
whether the ECJ indeed has jurisdiction in this case.6
At more or less the same time, the European
Commission initiated an infringement procedure
(Article 226 EC) against Ireland before the ECJ
arguing that Ireland had violated Article 292 EC by
bringing the case before the UNCLOS Arbitral
Tribunal, since the ECJ has exclusive jurisdiction to
rule on EC law. In view of this development, the
UNCLOS Arbitral Tribunal suspended the proceedings
and ordered the parties to regularly report to it
about the developments regarding the dispute before
the ECJ.
In 2006, the ECJ, following the Opinion7 of
Advocate General Maduro, indeed found that Ireland
had violated Article 292 EC by bringing the case
before the UNCLOS Arbitral Tribunal. The ECJ, in
particular, emphasized that only the ECJ is competent
to rule on EC law, including UNCLOS provisions that
have become integral part of the Community legal
order, and thereby is able to protect the autonomy and
consistency of EC law.8
However, it should be noted in this context that the
ECJ did not adjudicate on the substantive issues of the
* Dr. jur., LL.M., Max Weber Fellow, EUI. All websites
last visited on 30 January 2009. The author can be contacted
at: nlavranos@yahoo.com.
1
UNCLOS Arbitral Tribunal (MOX plant) Order No. 6, 6
June 2008, available at: http://www.pca-cpa.org/upload/
files/MOX%20Plant%20Order%20No.%206.pdf.
2
See for an analysis: N. Lavranos, The MOX plantjudgment
of the ECJ: How exclusive is the jurisdiction of
the ECJ?, European Environmental Law Review 2006, pp.
291±296.
3
OPSAR Arbitral Tribunal (MOX plant) Final Award, 2
July 2003, available at: http://www.pca-cpa.org/upload/
files/OSPAR%20Award.pdf.
4
Ibid.
5
Article 292 EC reads as follows:
Member States undertake not to submit a dispute
concerning the interpretation or application of this
Treaty to any method of settlement other than those
provided for therein.
6
UNCLOS Arbitral Tribunal, Order No. 3, Suspension of
Proceedings on Jurisdiction and Merits, 24 June 2003,
available at: http://www.pca-cpa.org/upload/files/
MOX%20Order%20no3.pdf.
7
Opinion in case C-459/03 (MOX plant) [2006] ECR I-
4635.
8
ECJ case C-459/03 (MOX plant) [2006] ECR I-4635.
180 European Energy and Environmental Law Review June 2009
The Epilogue in the MOX Plant Dispute
dispute, i.e. on the possible violation by the UK of EC
environmental legislation or UNCLOS provisions. The
dispute before the ECJ solely focused on the question
whether or not the exclusive jurisdiction of the ECJ had
been violated by the fact that the dispute had been
brought before another international arbitral tribunal.
After the judgment of the ECJ, the parties turned
again to the UNCLOS Arbitral Tribunal to consider
the next steps. In a first step, the parties suggested to the
UNCLOS Arbitral Tribunal that their obligation of
periodic reporting was not appropriate anymore and
therefore should be suspended. The UNCLOS Arbitral
Tribunal accepted this request by issuing Order No. 5.9
In a second step, Ireland withdrew the claim against
the UK, which the UNCLOS Arbitral Tribunal
accepted by formally terminating the case by Order
No. 6 of June 2008.10
Thus, as a result of the ECJ's exercize of its
exclusive jurisdiction, the UNCLOS Arbitral Tribunal
refrained from exercising its own jurisdiction in this
dispute. Consequently and similar to the proceedings
before the ECJ, the UNCLOS Arbitral Tribunal did
not reach the stage of discussing the substantive
aspects of the dispute.
Hence, the question arises: what are the consequences
of this outcome without substantive findings?
Is it an efficient and effective way of dispute
resolution, when two courts are called upon to decide
the case and both avoid rendering judgments on the
substantive issues? In other words, has justice been
served well?
These issues will be discussed under two headings.
First, what are the implications regarding the overlapping
jurisdictions between the ECJ and the other
international (arbitral) tribunals? Second, what are the
consequences for the substantive aspects of the case?
Finally, an outlook will wrap up this contribution.
II. Jurisdictional implications
The jurisdictional implications of this dispute can be
discussed from the point of view of the ECJ as well as
from the point of view of international (ad hoc)
arbitral tribunals.
The ECJ's point of view
From the point of view of the ECJ, the case raised the
fundamental issue of the scope of its exclusive
competence, which in the past was raised only once.
In its Advisory Opinion concerning the question
whether or not the proposed establishment of the
EFTA court would be compatible with the EC Treaty,
the ECJ opined that the jurisdiction of the EFTA
court as envisaged by the EEA would endanger the
autonomy of the Community legal order and affect the
exclusive jurisdiction of the ECJ.11 Hence, the ECJ did
not accept the scope of jurisdiction as envisaged by the
first EEA treaty.
In the same vein and even more strongly, the ECJ
made crystal clear in its MOX plant-judgment12 that its
exclusive jurisdiction is to be understood very broadly
and that EC Member States may not bring a dispute
between them before another international court or
tribunal if Community law is potentially at issue. Only
after the ECJ satisfied itself that EC law and its
jurisdiction is not at stake, may EC Member States
bring a dispute before another court or tribunal.
In short, the ECJ reacted to the continuing
proliferation of international courts and tribunals
combined with the expansion of EC law into international
law issues by asserting to the maximum its
exclusive jurisdiction.13 In this way the ECJ apparently
hopes to prevent that international courts and
tribunals start interpreting and applying EC law ±
potentially in a way that is inconsistent with ECJ
jurisprudence. Moreover, the ECJ signaled to the EC
Member States that they are not allowed to circumvent
the ECJ when resolving their disputes that may
involve Community law. In this way, the ECJ hopes to
protect the uniformity, consistency and autonomy of
the Community legal order.
Hence, the MOX plant dispute enabled the ECJ to
explicitly define and assert for the first time its
jurisdiction vis-aÁ -vis other international courts and
tribunals.
The International courts and tribunals' point of view
Obviously, the international courts and tribunals must
feel the expanding scope of exclusive jurisdiction of the
ECJ as a limitation of the exercise of their jurisdiction.
Although, the MOX plant dispute also illustrates that
their attitude towards the ECJ varies.
The OSPAR Arbitral Tribunal did not care at all
about the fact that relevant EC legislation and thus
exclusive jurisdiction of the ECJ may have been
applicable. Consequently, the OSPAR Arbitral Tribunal
did not consider the possibility of either refusing to
exercise its jurisdiction for the benefit of the ECJ or to
interpret the OSPAR provisions in the light of relevant
EC law and ECJ jurisprudence, so as to ensure
maximum consistency between the international law
and Community law obligations of the Member
States.14
9
UNCLOS Arbitral Tribunal, Suspension of periodic
reports by the Parties, Order No. 5, 22 January 2007,
available at: http://www.pca-cpa.org/upload/files/
MOX%20Order%20No5.pdf.
10
UNCLOS Arbitral Tribunal, Order No. 6, supra note 1.
11
ECJ Opinion 1/91 (EEA), [1991] ECR I-6079.
12
ECJ (MOX plant), supra note 8.
13
Regarding the proliferation of international courts and
tribunals, see further: Y. Shany, The competing jurisdiction
of International Courts and Tribunals, Oxford 2003.
14
N. Lavranos, The MOX plant and IJzeren Rijn disputes:
Which court is the supreme arbiter?, Leiden Journal of
International Law 2006, pp. 223±246.
European Energy and Environmental Law Review June 2009 181
The Epilogue in the MOX Plant Dispute
In contrast, the UNCLOS Arbitral Tribunal
recognized that in the present case an overlap between
its jurisdiction and the ECJ's jurisdiction is very likely
and therefore was prepared to resolve this issue first
before proceeding with the substance of case. In other
words, the UNCLOS Arbitral Tribunal showed
judicial comity towards the ECJ.15 Indeed, by giving
the ECJ the opportunity to define its jurisdiction in
this case, the UNCLOS Arbitral Tribunal avoided a
jurisdictional conflict and ensured that the uniformity
and consistency of Community law could be preserved
by the ECJ. The question, however, arises whether the
UNCLOS Arbitral Tribunal can really be happy about
the manner in which the ECJ defined its jurisdiction.
The ECJ essentially precluded future UNCLOS
Arbitral Tribunals as well as the ITLOS and the ICJ
to decide disputes between two EC Member States,
which may potentially involve EC law issues next to
UNCLOS issues.
Clearly, the ECJ was deeply alarmed by the
situation created by the OSPAR Arbitral Tribunal,
which rendered its award as if relevant EC legislation
and ECJ jurisprudence did not exist. That would in
itself not have been terribly bad, had the OSPAR
Arbitral Tribunal interpreted the OSPAR provision in
question in line with the relevant EC legislation,
thereby creating an equivalency between the OSPAR
and EC law obligations. Instead the OSPAR Arbitral
Tribunal defined the obligations of the UK to make
environmental law-related information available much
more narrowly than the relevant ECJ jurisprudence
suggests.16 In other words, whereas the UK most likely
would be required under EC law to make all
information regarding the emissions of the MOX
plant available to Ireland, the OSPAR Arbitral
Tribunal decided that under OSPAR the UK is not
required to do so.
In short, the different attitude of the various
international arbitral tribunals towards the expanding
exclusive jurisdiction of the ECJ illustrates the limits of
the ECJ's ability to control other international courts
and tribunals. Indeed, the IJzeren Rijn dispute
between Belgium and the Netherlands concerning the
reactivation of an old cargo railway track and its
impact on a protected natural habitat, which took
place around the same time when the MOX plant case
started, proved that the ECJ's strategy could not
prevent the circumvention of its exclusive jurisdiction.17
So, it remains to be seen whether this strategy
will be more successful in the future.
III. Substantive implications
The UNCLOS part
While the MOX plant dispute at least partly clarified
the jurisdictional issues between the ECJ and other
international courts and tribunals, this cannot be said
for the substantive aspects.
As regards UNCLOS, neither the ECJ nor the
UNCLOS Arbitral Tribunal reached the stage of
discussing the crucial question of this dispute, namely,
whether or not the UK violated its UNCLOS
obligations by continuing to release radioactive emissions
from the MOX plant into the Irish Sea.
This is an unsatisfactory result, in particular
because both ± the ECJ as well as the UNCLOS
Arbitral Tribunal ± could ± and in my view should ±
have discussed the substantive issues of this case.
As far as the ECJ is concerned, after it had asserted
its exclusive jurisdiction, there were no reasons not to
deal with the substantive aspects of the case ± despite
the fact that the Commission based its claim mainly on
a violation of Article 292 EC, i.e. an infringement of
the exclusive jurisdiction of the ECJ when it brought
the case against Ireland before the ECJ. However,
after having established such a violation, as the ECJ in
fact did, it could ± and indeed should ± have examined
further whether or not `communitarized' UNCLOS
provisions were infringed by the UK.
The adjudication on the substance of the MOX
plant dispute by the ECJ was particularly necessary
because the claim of exclusive jurisdiction by the ECJ
implied that the UNCLOS Arbitral Tribunal was not
competent to deal with this dispute any longer. Of
course, the ECJ could rely on judicial economy by
arguing that since it found a violation of Community
law on the procedural side, there was no need anymore
for looking into the substantive issues. But one could
counter this efficiency argument with Ireland's right to
justice. After all Ireland started the proceedings
against the UK because it believed that the UK has
been violating its UNCLOS obligations and because it
wanted to obtain a judicial decision on this crucial
point.
It is submitted that if the ECJ claims exclusive
jurisdiction but at the same time fails to address the
real issues of this dispute, Ireland's right to justice is
clearly violated.
Besides, since the ECJ did not look into the
substantive issues of the case, the UNCLOS Arbitral
Tribunal was not prevented from examining the
substantive issues, despite the fact that the ECJ
exercized its jurisdiction. In other words, the
UNCLOS Arbitral Tribunal rather than simply
15
Y. Shany, The First MOX Plant Award: The need to
harmonize competing environmental regimes and dispute
settlement procedures, Leiden Journal of International Law
2004, pp. 815±827.
16
See eg: ECJ case C-186/04 (Housieaux), [2005] ECR I-
3299; case C-233/00 (Commission v. France) [2003] ECR I-
6625; case C-316/01 (Glawischnig) [2003] ECR I-5995; case
C-217/97 (Commission v. Germany) [1999] ECR I-5087;
case C-321/96 (WilhelmMecklenburg v. Kreis Pinneberg ±
Der Landrat) [1998] ECR I-3809.
17
See on the IJzeren Rijn case: N. Lavranos, supra note 14.
182 European Energy and Environmental Law Review June 2009
The Epilogue in the MOX Plant Dispute
terminating the proceedings could have exercized its
jurisdiction and adjudicated on the substantive
UNCLOS aspects. Since the ECJ did not discuss these
aspects, there would have been no risk of divergent or
conflicting judgments regarding the UNCLOS provisions.
In this way, Ireland's right to justice and quest
for an answer to its question whether or not the UK
has violated its UNCLOS obligations would have been
served well. For this reason, it seems very odd that it
was Ireland that requested the termination of the
UNCLOS proceedings. One can only guess the
reasons for Ireland's decision, but probably Ireland
considers the use of diplomatic means to be more apt
for finding an amicable solution. Be that as it may, the
fact remains that after several years of proceedings
before the UNCLOS Arbitral Tribunal and the ECJ, it
still remains unclear whether, and if so, to what extent
the MOX plant is contaminating the Irish Sea.
The OSPAR part
In contrast to the UNCLOS issues, the OSPAR
Arbitral Tribunal clarified that under the OSPAR
the UK was not obliged to hand over to Ireland any
data or information regarding the emissions of the
MOX plant. As such, the OSPAR Arbitral Tribunal
must be praised for not circumventing the substantive
aspects of the dispute. However and at the same time,
it is a pity that the OSPAR Arbitral Tribunal did not
take into account the stricter obligations for making
the relevant data or information accessible, which are
imposed on the EC Member States by virtue of EC
legislation, ECJ jurisprudence and other international
treaties such as the Aarhus Convention that has been
ratified by all EC Member States and the EC itself.
While the OSPAR Arbitral Tribunal is, obviously,
not obliged to automatically apply or follow these
`foreign' sources, it could have taken them into
account in its decision. Indeed, it is argued that for
the sake of avoiding divergent or even conflicting
jurisprudence regarding similar OSPAR and EC law
obligations, the OSPAR Arbitral Tribunal should
have issued its award in line with those other `foreign'
sources.
Thus, at the end of the day, as the OSPAR Arbitral
Tribunal did not care much about the Community law
implications, it has created divergent rights and
obligations for the UK and Ireland compared to what
EC law prescribes in the same situation. This is
considered to be unfortunate because it does not serve
the consistent interpretation and development of the
relevant law, but instead adds to the fragmentation of
international and European law.
IV. Outlook
The MOX plant dispute is an illustration of the
negative effects associated with the proliferation of
international courts and tribunals and the resulting
overlapping jurisdictions among those dispute settlement
bodies.18 In particular, the MOX plant dispute
underlines the urgent need to establish formal and
informal ways of coordinating the judgments of the
various courts and tribunals so as to achieve better
consistency and harmony of law.19 This in turn would
be beneficial for better compliance by states and for
enhancing the authority of all dispute settlements
bodies. Obviously, the ECJ can play an important role
towards achieving this aim. Unfortunately, the more
recent jurisprudence of the ECJ, subsequent to its
MOX plant-judgment, indicates that the ECJ is not
very much inclined to adjudicate cases involving
UNCLOS or other international marine/environmental
protection agreements.
For example, in the recent Intertanko case the ECJ
concluded that the provisions of UNCLOS do not
enjoy direct effect, that is, cannot be relied upon by
individuals before a court.20 Moreover, the ECJ also
found that the EC could not be considered to be
bound by the International Convention for the
Prevention of Pollution from Ships of 1973 (MARPOL)
in view of the fact that the EC is not a
Contracting Party to MARPOL and in the absence of
a full transfer of the powers previously exercized by
the Member States in the policy areas covered by
MARPOL.21 Also, the ECJ argued that the fact that
all EC Member States are parties to MARPOL does
not bind the EC.22 In this context, reference must be
made to the opposite conclusions of AG Kokott who
convincingly demonstrated in her opinion that neither
is there a reason for denying in general terms any
direct effect of UNCLOS provisions nor is it
impossible to construct by meaningful interpretation
a binding effect of MARPOL on the EC.23
Similarly, in the recent Commune de Mesquer case the
ECJ noted, first, that because the EC had not acceded to
the relevant international agreements (i.e. International
Convention on Civil Liability for Oil Pollution Damage,
International Oil Pollution Compensation Fund), and
18
See eg: G. Hafner, Pros and Cons ensuing from
Fragmentation, Michigan Journal of International Law
2004, pp. 849±863.
19
See for a more detailed discussion: N. Lavranos,
Regulating Competing Jurisdictions among International
Courts and Tribunals, Zeitschrift fuÈr auslaÈndisches oÈffentliches
Recht und VoÈlkerrecht 2008, pp. 575±621.
20
ECJ case C-308/06 (Intertanko), paras. 64-65, judgment
of 3 June 2008, available at: http://curia.europa.eu/jurisp/
cgi-bin/form.pl?lang=en. See further: R. Pereira, On the
legality of the Ship-source Pollution 2005/35/EC Directive ±
The Intertanko case and selected others, European Energy
and Environmental Law Review 2008, pp. 372±383.
21
ECJ case C-308/06 (Intertanko), para. 48.
22
Ibid., para. 49.
23
Opinion Advocate General Kokott, case C-308/06
(Intertanko) of 20 November 2007, available at: http://
curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en.
European Energy and Environmental Law Review June 2009 183
The Epilogue in the MOX Plant Dispute
second, since not all EC Member States were party to
these agreements, the EC could not be regarded as
having replaced the Member States and thus be bound
by these treaties.24 In her Opinion Advocate General
Kokott, even though having concluded that the
Community is not bound by those agreements, at the
same time pointed out that the ECJ may, nonetheless,
examine the extent to which those treaties can preclude
the application of the EC Directive in question.25
In other words, this recent jurisprudence of the ECJ
illustrates that the ECJ is not particularly eager to
strengthen the legal status and effect of these international
marine/environmental protection agreements
within the Community legal order by considering the
EC to be bound by them and by enhancing their
enforcement by granting them direct effect. This, it is
argued, is a missed opportunity for the ECJ to actively
develop and enhance ± together with the other
international courts and tribunals ± the level of
protection of international environmental law within
Europe and beyond.26
In sum, it can only be concluded that the MOX
plant dispute has been put to end without any
substantive findings. Moreover, this dispute has been
a huge waste of precious resources in terms of
manpower and money. This unsatisfactory result
clearly does not do justice to the inhabitants living
around the Irish Sea who arguably have been suffering
most from the radioactive emissions of the MOX
plant.
24
ECJ case C-188/07 (Commune de Mesquer) para. 85,
judgment of 24 June 2008, available at: http://curia.eur-
opa.eu/jurisp/cgi-bin/form.pl?lang=en.
25
Opinion Advocate General Kokott, case C-188/07 (Commune
de Mesquer), para. 84, of 13 March 2008, available at:
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en.
26
See generally on the EC's environmental policy: P.
Wenneras, Towards an ever greener Union? Competence
in the field of the environment and beyond, Common
Market Law Review 2008, pp. 1645-1685; D. Benson/A.
Jordan, A grand bargain or an `incomplete contract'?
European Union Environmental Policy after the Lisbon
Treaty, European Energy and Environmental Law Review
2008, pp. 280±290.
184 European Energy and Environmental Law Review June 2009