MOX plant and the espoo convention: Can member state disputes concerning mixed environmental agreements be resolved outside EC law?

Review of European Community and International Environmental Law

Volumn 18, Issue 3, 2009, Pages 312-327

  Marsden, Simon ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL IMPACT ASSESSMENT; ENVIRONMENTAL JUSTICE; ENVIRONMENTAL LEGISLATION; EUROPEAN COMMISSION; LEGAL SYSTEM; LEGISLATIVE IMPLEMENTATION; TRANSBOUNDARY POLLUTION;

IRELAND; UNITED KINGDOM;

EID: 75649133943     PISSN: 09628797     EISSN: 14679388     Source Type: Journal    
DOI: 10.1111/j.1467-9388.2009.00652.x     Document Type: Article

References (130)

1. ECJ 30 May 2006, Case C-459/03, Commission v. Ireland, [2006] ECR I-4635, available at 〈 http://curia.europa.eu/jcms/jcms/Jo1-6308/ecran-d-accueil 〉. The first proceedings were begun before the Arbitral Tribunal established under the Convention for the Protection of the Marine Environment of the North-East Atlantic (Paris, 22 September 1992); the second were before the International Tribunal for the Law of the Sea (ITLOS); and the third before the Annex VII Arbitral Tribunal - both the second and third were under the United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982) (UNCLOS). The ECJ case was begun by the Commission in response to the third proceedings, but it has relevance for all.
2. N. Lavranos in the following articles and case note Protecting its Exclusive Jurisdiction: The MOX Plant Judgment of the ECJ 5 The Law and Practice of International Courts and Tribunals (2006 479
3. ' The MOX Plant and Ijzeren Rijn Disputes: Which Court is the Supreme Arbiter?, 19 Leiden Journal of International Law (2006 223
4. ' MOX Plant Dispute - Court of Justice of the European Communities 2 European Constitutional Law Review (2006 456
5. P.J. Cardwell D. French Who Decides? The ECJ's Judgment on Jurisdiction in the MOX Plant Dispute 19 : 1 Journal of Environmental Law (2007 121
6. C.P.R. Romano Commission of the European Communities v. Ireland, Case C-459/03, Judgment 101 : 1 The American Journal of International Law (2007 171
7. G. Jianjun Comments on Commission of the European Communities v Ireland 7 : 2 Chinese Journal of International Law (2008 417.
8. B. Simma D. Pulkowski Of Planets and the Universe: Self-Contained Regimes in International Law 17 : 3 European Journal of International Law (2006 483
9. R. Higgins The ICJ, ECJ and the Integrity of International Law 52 International and Comparative Law Quarterly (2003 1
10. T. Stephens, International Courts and Environmental Protection (Cambridge University Press, 2009), at 295-301;
11. N. Craik, The International Law of Environmental Impact Assessment (Cambridge University Press, 2008), at 115-116 and 127.
12. For readings from the non-English literature, the ECJ website has an 'Annotation of judgments' section to the case law, which lists several articles on the MOX Plant case in French, German, Spanish and Russian as well as in English (latest edition 17 February 2009). These are found in Part 2 under the case number (in French). See CJCE-Système MINIDOC, Notes aux arrêts de la Cour de justice (Édition du 17/02/2009), 924-925, available at 〈 http://curia.europa.eu/jcms/jcms/Jo2-7083/annotation-of-judgments 〉.
13. Directive 90/313 on the freedom of access to information on the environment, [1990] OJ L158/56 (repealed by Directive 2003/4 on public access to environmental information, [2003] OJ L41/26).
14. Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, [1985] OJ L175/40 (as amended by Directives 97/11, [1997] OJ L73/5 and 2003/35, [2003] OJ L156/17).
15. R. Churchill J. Scott The MOX Plant Litigation: The First Half-Life 53 International and Comparative Law Quarterly (2004 Tanaka Lessons from the Protracted MOX Plant Dispute: A Proposed Protocol on Marine Environmental Impact Assessment to the United Nations Convention on the Law of the Sea 25 Michigan Journal of Environmental Law (2004 337.
16. Convention on Environmental Impact Assessment in a Transboundary Context (Espoo, 25 February 1991).
17. For a recent overview of TEIA, including a chapter on the Espoo Convention by W. Schrage, see K. Bastmeijer and T. Koivurova (eds), Theory and Practice of Transboundary Environmental Impact Assessment (Martinus Nijhoff, 2008), at 29-51.
18. See also 'Special Issue on Environmental Assessment and Transboundary Impact Assessment', W. Schrage and N. Bonvoisin (eds), 26:4 Impact Assessment and Project Appraisal (2008), 234.
19. M. Koyano The Significance of the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) in International Environmental Law: Examining the Implications of the Danube Delta Case 26 : 4 Impact Assessment and Project Appraisal (2008 299.
20. E. Albrecht Implementing the Espoo Convention in Transboundary EIA between Germany and Poland 28 Environmental Impact Assessment Review (2008 359
21. For a list of EC Member States, see Europa, European Countries (undated), available at 〈 http://europa.eu/abc/european-countries/index-en.htm 〉.
22. For a list of the parties to the Espoo Convention, see United Nations Treaty Collection, Status of Treaties, Chapter XXVII Environment - 4. Convention on Environmental Impact Assessment in a Transboundary Context (United Nations, undated), available at 〈 http://treaties.un.org/Pages/ViewDetails.aspx?src= TREATY&mtdsg-no=XXVII-4&chapter=27&lang=en 〉. There are therefore 16 non-EC Member State parties to the Espoo Convention; Iceland, Russia and the USA are signatories but have not ratified.
23. For comprehensive background to the dispute, see M. Tanaka, n. 10 above, at 358-370.
24. See the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, which implemented the 1985 EIA Directive, and which were triggered by the planning application to Copeland Borough Council in October 1992, and a related application for authorization from Her Majesty's Nuclear Installations Inspectorate.
25. Although the Regulations may have been complied with, they failed to implement the EIA Directive as even the original Article 7 in the 1985 EIA Directive required the latter. This states: 'Where a Member State is aware that a project is likely to have significant effects on the environment in another Member State or where a Member State likely to be significantly affected so requests, the Member State in whose territory the project is intended to be carried out shall forward the information gathered pursuant to Article 5 to the other Member State at the same time as it makes it available to its own nationals. Such information shall serve as a basis for any consultations necessary in the framework of the bilateral relations between two Member States on a reciprocal and equivalent basis'. The amended 1997 EIA Directive, which contains the detailed Article 7 provision intended to comply with the Espoo Convention, was to have been implemented into Member State domestic law by 14 March 1999, and should therefore have been implemented by the UK regardless of the requirements of the 1988 Regulations.
26. Treaty Establishing the European Atomic Energy Community (Rome, 25 March 1957), as amended.
27. J. Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the EC and its Member States (Kluwer, 2001).
28. See Directive 90/313, n. 7 above.
29. T.L. McDorman Access to Information under Article 9 of the OSPAR Convention (Ireland v. United Kingdom) 98 : 2 The American Journal of International Law (2004 330
30. Y. Shany The First MOX Plant Award: The Need to Harmonize Competing Environmental Regimes and Dispute Settlement Procedures 17 Leiden Journal of International Law (2004 815
31. B. Kwiatkowska The Ireland v. United Kingdom (Mox Plant) Case: Applying the Doctrine of Treaty Parallelism 18 : 1 The International Journal of Marine and Coastal Law (2003 1
32. C. Brown Provisional Measures before the ITLOS: the MOX Plant Case 17 : 2 International Journal of Marine and Coastal Law (2002 267
33. M.J.C. Forster The Mox Plant Case - Provisional Measures in the International Tribunal for the Law of the Sea 16 : 3 Leiden Journal of International Law (2003 611.
34. Although pursuant to Article 287(1) a party may by declaration choose one of the dispute-settlement options set out (ITLOS, ICJ, Annex VII or Annex VIII Tribunal) it was open to EC Member States to make a reservation in favour of the ECJ as part of this process.
35. V. Röben The Order of the UNCLOS Annex VII Arbitral Tribunal to Suspend Proceedings in the Case of the MOX Plant at Sellafield: How Much Jurisdictional Subsidiarity? 73 Nordic Journal of International Law (2004 223.
36. Opinion of Advocate-General Poiares Maduro delivered on 18 January 2006: Case C-459/03, Commission of the European Communities v. Ireland, [2006] ECR I-4635, available at 〈 http://curia.europa.eu/jcms/jcms/Jo1-6308/ecran-d- accueil 〉.
37. ECJ 19 March 2002, Case C-13/00, Commission v. Ireland, [2001] ECR I-2943.
38. See the references in n. 3 above.
39. J. Harrison Significant International Environmental Law Cases: International Arbitrations; Iron Rhine Railway Arbitration 18 : 3 Journal of Environmental Law (2006 505.
40. See T. Stephens, n. 5 above, who identifies three types, giving examples: two or more dispute-settlement systems with similar general jurisdiction (International Court of Justice and Permanent Court of Arbitration, yet to occur); two systems with partially overlapping jurisdiction, Southern Bluefin Tuna (UNCLOS and Commission for the Conservation of Southern Bluefin Tuna) and MOX Plant (OSPAR, UNCLOS and TEC/Euratom); common facts giving rise to litigation under two specialized systems (World Trade Organization and a Multilateral Environmental Agreement, with trade restrictions imposed to achieve environmental objectives). It is argued in the last instance that there is no true overlap because parallel issues are dealt with.
41. See n. 8 above.
42. It is surprising that Ireland did not pursue the UK directly for breaching EIA obligations in EC law, since it had originally raised this with the UK by letter in 1999, alongside other EIA obligations that it believed the UK was in breach of (such as under the Espoo Convention). Ireland's Memorial, Part II: The Law to the UNCLOS Annex VII Tribunal, refers indirectly to the EIA Directive, see n. 38 below, para., 6.19, at 104; Ireland's Memorial to the OSPAR Arbitral Tribunal refers indirectly to the Information Directive and ECJ interpretation of it, see n. 38 below, para., 102, at 31. See also B. Kwiatkowska, n. 24 above, at 9-10, and note her view that the legitimacy of the ITLOS Order could have been increased had it defined the dispute as an 'EU-law centered dispute', which would have also brought the precautionary principle into play operationally (at 29 and 55).
43. G. Conway Breaches of EC law and the International Responsibility of Member States 13 : 1 European Journal of International Law (2002 679
44. G. Betlem A. Nollkaemper Giving Effect to Public International Law and European Community Law before Domestic Courts: A Comparative Analysis of the Practice of Consistent Interpretation 14 : 3 European Journal of International Law (2003 569
45. This is however extremely unlikely given the comments made by the European Commissioner for the Environment concerning the Nordstream Pipeline Project, which is discussed at n. 107 below. Indeed, the response of the Commission to a question raised in the Parliament in May 2003 indicates this was unlikely even when it was aware of the dispute at that time. See V. Röben, n. 26 above, at 228, and n. 13. What is also extremely unlikely is that Article 292 will be modified to allow for more flexibility for other dispute-settlement fora as suggested by Lavranos. He argues that Article 292 could be changed 'in the sense that the ECJ would be required to take decisions of arbitral tribunals into account - at least when one of the parties involved is an EC member state'. See N. Lavranos, 'The MOX Plant and Ijzeren Rijn Disputes, n. 2 above, at 246. The autonomy of the EC legal order would be compromised by such an approach if there were a requirement for this, although there is no reason why the TEC cannot be interpreted as Article 31(3)(c) of the Vienna Convention requires as it is an international treaty between the EC Member States (see n. 39 below).
46. See N. Lavranos, 'The MOX Plant and Ijzeren Rijn Disputes, n. 2 above, at 232-233; V. Röben, n. 26 above, at 242; and J. Wouters et al., n. 34 above.
47. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus, 25 June 1998). The Aarhus Convention had therefore just come into force prior to the commencement of Ireland's OSPAR litigation, and although the revised Information Directive was not in force at the time, the same arguments about direct effect applied to it as to the Espoo Convention, which is closely related.
48. Memorial before OSPAR Arbitral Tribunal, paras 100-101 (at 30-31) cites the Aarhus Convention; Memorial before UNCLOS Annex VII Tribunal, para. 6.19 (at 104) cites the Espoo Convention; EIA as customary international law is also argued in para. 6.29 of the latter memorial. See 1992 Convention on the Protection of the Marine Environment of the North-East Atlantic in the Dispute Concerning Access to Information under Article 9 of the OSPAR Convention and the MOX Plant, Ireland v. United Kingdom, Memorial of Ireland (7 March 2002); and see 1982 Convention on the Law of the Sea before an Arbitral Tribunal Established Under Annex VII, in the Dispute Concerning the MOX Plant, International Movements of Radioactive Materials, and the Protection of the Marine Environment of the Irish Sea, Ireland v. United Kingdom, Memorial of Ireland (26 July 2002), Part II - The Law, available at 〈 http://www.pca-cpa.org 〉. For the ITLOS decision, see International Tribunal for the Law of the Sea, Year 2001, 3 December 2001, List of Cases, No 10, The MOX Plant Case, Ireland v. United Kingdom, Request for Provisional Measures, Order, available at 〈 http://www.itlos.org/ 〉.
49. C. McLachlan The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention 54 : 2 International and Comparative Law Quarterly (2005 279.
50. It ratified the Espoo Convention on 25 July 2002; the UK ratified on 10 October 1997. Ireland has still not ratified the Aarhus Convention although it signed on 25 June 1998; the UK ratified on 23 February 2005.
51. The Implementation Committee of the Espoo Convention was established by the Meeting of the Parties in February 2001 (MOP-2) so was in place at the time of Ireland's dispute with the UK.
52. See M. Tanaka, n. 10 above, at 394, n. 321.
53. Directive 2003/35/EC providing for public participation in respect of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, [2003] OJ L156/17.
54. See N. Craik, n. 5 above, at 55-59.
55. See n. 9 above, at 674-675.
56. For commentaries on the original directive, see: R. Hallo (ed.), Access to Environmental Information in Europe: The Implementation and Implications of Directive 90/313/EEC (Kluwer, 1996);
57. J. Janssen, 'Recent Developments on Access to Environmental Information: Transparency in Decision Making', October European Environmental Law Review (1998), 268;
58. C. Kimber, 'Understanding Access to Environmental Information: The European Experience', in T. Jewell and J. Steele (eds), Law in Environmental Decision Making (Clarendon, 1998).
59. Despite the original directive being applicable, Shany indicates that the ECJ had, however, adopted a broad concept of the scope of the information covered by it, and held that information pertaining to consent proceedings of development projects with environmental implications should be disclosed. See n. 23 above, at 822, where ECJ Case C-321/98, Mecklenburg v. Kreis Pinneberg der Landrat, [1998] ECR I-3809, is cited. This case was in fact referred to by Ireland in its Memorial to the OSPAR Arbitral Tribunal. See n. 38 above, para. 102, at 31.
60. See ECJ 26 June 2003, Case C-233/00, Commission v. France, [2003] ECR I-6625.
61. A. Ryall Implementation of the Aarhus Convention through Community Environmental Law 6 Environmental Law Review (2004 274.
62. See ECJ 21 April 2005, Case C-186/04, Pierre Housieaux v. Délégués du conseil de la Region de Bruxelles-Capitale, [2005] ECR I-3299.
63. See Directive 85/337, n. 8 above.
64. Commission of the European Communities, Report on the Implementation of Directive 85/337/EEC on the Assessment of the Effect of Certain Public and Private Projects on the Environment, COM (93) 28 final.
65. The EC made the following Declaration upon signature to the Espoo Convention, which was confirmed upon ratification, indicating that Directive 85/337/EEC was not at the time compliant with it and that it did not cover treaty obligations between Member States and non-Member States. See United Nations Treaty Collection, n. 15 above, which includes the following EU declaration: 'It is understood, that the Community Member States, in their mutual relations, will apply the Convention in accordance with the Community's internal rules, including those of the EURATOM Treaty, and without prejudice to appropriate amendments being made to those rules. The European Community considers that, if the information of the public of the Party of origin takes place when the environmental impact assessment documentation is available, the information of the affected Party by the Party of origin must be implemented simultaneously at the latest. The Community considers that the Convention implies that each Party must assure, on its territory that the public is provided with the environmental impact assessment documentation, that it is informed and that its observations are collected. In the field covered by the Espoo Convention, Council Directive 85/337/EEC of 27 June 1985, annexed to this Declaration, applies. It enables the Community to comply with most of the obligations under the Espoo Convention. Member States are responsible for the performance of those obligations resulting from the Espoo Convention not currently covered by Community law and more specifically by Directive 85/337/EEC. The Community underlines that Directive 85/337/EEC does not cover the application of the Espoo Convention between the Community on the one hand and non-Member States Party to the Espoo Convention on the other hand. The Community will inform the depositary of any future amendment to Directive 85/337/EEC. From this, it follows that the Community, within the limits indicated above, is competent to enter into binding commitments on its own behalf with non-members countries which are Contracting Parties to the Espoo Convention'.
66. Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, [2003] OJ L156/17.
67. Guidance has recently been released on these categories, with reference to the ECJ case law. See European Commission, Directive 85/337/EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment (EIA Directive) - Interpretation of Definitions of Certain Project Categories of Annex I and II of the EIA Directive (European Communities, 2008), available at 〈 http://ec.europa.eu/environment/eia/pdf/interpretation-eia. pdf 〉.
68. J. Woodliffe, 'Environmental Damage and Environmental Impact Assessment', in M. Bowman and A. Boyle (eds), Environmental Damage in International and Comparative Law: Problems of Definition and Valuation (Oxford University Press, 2002), 133, at 144.
69. European Commission, Report from the Commission to the European Parliament and the Council on the Application and Effectiveness of the EIA Directive (Directive 85/337/EEC as amended by Directive 97/11/EC) - How Successful are the Member States in Implementing the EIA Directive? (European Commission, 2003). Section 4.5 deals with transboundary impacts, at 78-82, available at 〈 http://ec.europa.eu/environment/eia/pdf/report-en.pdf 〉
70. Table 15 in the report outlines the treaties and agreements that were in place at the time between a number of the Member States and Table 16 indicates the number and types of transboundary projects that had been subject to the procedure. Several of these have concerned nuclear plants, uranium enrichment and nuclear re-processing, including apparently in relation to the UK. See ibid., at 80-82. It is also interesting to note the following comment (at 82, para. 4.5.7) in relation to disputes, which most likely related to Ireland's specific concerns at the time: 'Questionnaire responses do not often mention problems of disagreement over the final decision, although Ireland sees a need for a more formal arrangement to be developed in due course, particularly in the context of nuclear energy-related developments...'.
71. See E. Albrecht, n. 14 above, at 361.
72. A. Ryall, 'Access to Justice and the EIA Directive: The Implications of the Aarhus Convention', in J. Holder and D. McGillivray (eds), Taking Stock of Environmental Assessment: Law, Policy and Practice (Routledge-Cavendish, 2007), 191, at 197-198.
73. A. Ryall EIA and Public Participation: Determining the Limits of Member State Discretion 19 : 2 Journal of Environmental Law (2007 247
74. S. Drake Twenty Years After Von Colson: The Impact of "Indirect Effect" on the Protection of the Individual's Community Rights 30 European Law Review (2005 329.
75. See A. Ryall, n. 60 above, at 199.
76. See European Court of Justice, Table Alphabétique des Matières (Alphabetical Table of Subject Matter), Volumes 1985-2009, at 456-459, which provides a comprehensive list of cases (only in French).
77. ECJ 24 October 1996, Case C-72/95, Kraaijeveld BV v. Gedeputeerde Staten van Zuid-Holland, [1996] ECR I-5403. For a more recent consideration, see ECJ 10 July 2008, Case C-156/07, Salvatore Aiello and Others v. Comune di Milano etc, [2008] ECR I-5215, which held that where a Member States chooses to determine on a case-by-case basis which of the projects listed in Annex I or II must be subject to EIA, it must ensure that the criteria in Annex III are clearly referred to in the decision-making process, and that, if one is considered, they must all be considered.
78. J. de Mulder The Institutional Context for Transboundary Environmental Impact Assessment in Belgium: Multi-Level Setting - A Matter of Smooth Governance? 26 : 4 Impact Assessment and Project Appraisal (2008 277.
79. ECJ 2 May 1996, Case C-133/94, Commission v. Belgium, [1996] ECR I-2323.
80. Ibid., at para. 53.
81. ECJ 9 November 2006, Case C-216/05, Commission v. Ireland, [2006] ECR I-10787.
82. ECJ 16 March 2006, Case C-332/04, Commission v. Spain, [2006] ECR I-40.
83. See references in n. 34 above.
84. Koyano comments: 'An inquiry mechanism is extremely useful for environmental issues of which effective management is often impeded by conflicting views on scientific and technological matters between the Parties concerned'. See M. Koyano, n. 13 above, at 301.
85. This indicates that other causes of action that may be available to States, such as any customary rules of international law relating to environmental harm, international cooperation or liability, and/or other treaty obligations, remain.
86. P. Sands, Principles of International Environmental Law I: Frameworks, Standards and Implementation (Cambridge University Press, 1995), at 588.
87. W. Schrage, 'The Convention on Environmental Impact Assessment in a Transboundary Context', in J. Petts (ed.), Handbook of Environmental Impact Assessment, Vol. 2 (Blackwell Science, 1999), at 88.
88. J. Ebbesson Innovative Elements and Expected Effectiveness of the 1991 EIA Convention 19 Environmental Impact Assessment Review (1999 47
89. J. Knox The Myth and Reality of Transboundary Environmental Impact Assessment 96 : 2 American Journal of International Law (2002 291
90. K.R. Gray International Environmental Impact Assessment: Potential for a Multilateral Environmental Agreement 11 : 1 Colorado Journal of International Environmental Law and Policy (2000 83
91. See J. Knox, n. 77 above, at 303.
92. See J. Ebbesson, n. 76 above, at 50.
93. See W. Schrage, n. 75 above, at 96-97.
94. See ibid.
95. For the first review, see Decision III/1, Review of Implementation, found in Convention on Environmental Impact Assessment in a Transboundary Context, Review of Implementation 2003 (ECE/MP.EIA/6, 30 August 2004), Annex I, Decision III/1, Review of Implementation, available at 〈 http://www.unece.org/env/ documents/2004/eia/decision.III.1.e.pdf 〉. Note that although Ireland had ratified the Convention on 25 July 2002 and the questionnaire was issued in late 2002 and following some amendments in mid-2003, Ireland did not respond. Bearing in mind the substance and timing of its dispute with the UK, which ironically was the lead country for the review, this is somewhat of a surprise. The relationship between EC law and international law is considered in more detail in the Implementation Report submitted by the EC to the UNECE in relation to the Aarhus Convention, which refers to the binding nature of treaties for EC institutions as well as Member States and the primacy of international treaties over EC secondary law. In relation to the latter, the Commission states: 'The primacy of international agreements concluded by the Community over provisions of secondary Community legislation also means that such provisions must, so far as is possible, be interpreted and applied in a manner that is consistent with those agreements'. The direct effect of treaties concluded with non-EC Member States is also considered, despite the absence of case law on the Aarhus Convention in particular. See United Nations Economic and Social Council, Economic Commission for Europe, Meeting of the Parties to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Third Meeting Riga, 11-13 June 2008, Implementation Report Submitted by the European Community (ECE/MP.PP/IR/2008/EC, 6 June 2008), at 2, available at 〈 http://www.unece.org/env/documents/ 2008/pp/mop3/ece-mp-pp-ir-2008-ec-e.pdf 〉
96. UN Economic Commission for Europe, Review of Implementation of the Espoo Convention (United Nations, 2008), available at 〈 http://www.unece.org/env/ documents/2008/eia/ece.mp.eia.11.pdf 〉. The EC responded to this survey in part only, taking the view that the obligations contained within the Convention were for States, with its role merely to adopt framework legislation for its implementation. No mention is made of the potential direct effect of the Espoo Convention and no mention of the role of the Commission or ECJ in relation to it.
97. See European Community Response to the Questionnaire on Implementation of the Espoo Convention prepared pursuant to Decision II/11 of the Second Meeting of Parties to the Convention (23 July 2003), available at 〈 http://www.unece.org/env/eia/documents/Review%202003-2005/Questionnaire%20- %202003%20-%20EC.pdf 〉;
98. and see Report of the European Community for 2003-2005 on the Implementation of the Espoo Convention on Environmental Impact Assessment in a Transboundary Context (undated), available at 〈 http://www.unece.org/env/ eia/documents/Review%202003-2005/Questionnaire%20-%202003-2005%20-%20EU%20- %20annex.pdf 〉. For the completed responses (with date received) by the UK (18 August 2006) and Ireland (7 February 2008) (the latter which, because of its lateness, was not taken into account in the ECE Report)
99. see K. Chowns, Questionnaire for the Report of the United Kingdom of Great Britain and Northern Ireland for 2003-2005 on the Implementation of the Espoo Convention on Environmental Impact Assessment in a Transboundary Context for the Period mid-2003 to end of 2005 (24 August 2006), available at 〈 http://www.unece.org/env/eia/documents/Review%202003-2005/Questionnaire%20- %202003-2005%20-%20United%20Kingdom.pdf 〉;
100. and see B. O'Neill, Questionnaire for the Report of Ireland for 2003-2005 on the Implementation of the Espoo Convention on Environmental Impact Assessment in a Transboundary Context for the Period mid-2003 to end of 2005 (6 February 2008), available at 〈 http://www.unece.org/env/eia/documents/ Review%202003-2005/Questionnaire%20-%202003-2005%20-%20Ireland.pdf 〉.
101. J. de Mulder The Expansion of Environmental Assessment in International Law: The Protocol on Strategic Environmental Assessment to the Espoo Convention 18 Environmental Law and Management, 269
102. See European Commission, nn. 57 and 58 above. On Table 16 of the report, Finland, Germany, the Netherlands, Sweden and the UK had all identified nuclear plants, uranium enrichment or nuclear re-processing as transboundary projects in their own countries.
103. This is reported on the Espoo website as a case study by C. Pulbere, Applying the Espoo Convention on NPP Cernovoda Units 3-4, Panel Discussion on Energy Related Projects, Fourth Meeting of the Parties, Bucharest, Romania, 19-21 May 2008 (undated), available at 〈 http://www.unece.org/env/eia/ documents/bucharest/Pulbere.pdf 〉.
104. It is also of note (although beyond the scope of this article to comment further) that the ICJ considered the environmental obligations of Slovakia and Hungary for the Danube in ICJ 25 September 1997, Hungary v. Sovakia (Gabčíkovo-Nagymaros Case), [1997] ICJ Rep. 7, which in the Separate Opinion of VP Weeramantry included the concept of sustainable development and the principle of 'continuing EIA'. He viewed EIA obligations as built into the treaty under consideration, with his focus on the need for ongoing monitoring of environmental effects (at 111-113). For a summary, with reference to the relevant literature, see T. Stephens, n. 5 above, at 173-187.
105. This provision would also have triggered an assessment for the MOX Plant. It reads: 'LIST OF ACTIVITIES 2. (a) Thermal power stations and other combustion installations with a heat output of 300 megawatts or more, and (b) Nuclear power stations and other nuclear reactors, including the dismantling or decommissioning of such power stations or reactors 1/ (except research installations for the production and conversion of fissionable and fertile materials, whose maximum power does not exceed 1 kilowatt continuous thermal load). 3. (a) Installations for the reprocessing of irradiated nuclear fuel; (b) Installations designed: - For the production or enrichment of nuclear fuel; - For the processing of irradiated nuclear fuel or high-level radioactive waste; - For the final disposal of irradiated nuclear fuel; - Solely for the final disposal of radioactive waste; or - Solely for the storage (planned for more than 10 years) of irradiated nuclear fuels or radioactive waste in a different site than the production site'. See Espoo Convention, n. 11 above, Appendix 1.
106. It is not clear from the Ministry website if the process is yet complete. See Ministry of Environment, Cernovoda Nuclear Power Plant Units 3 and 4 (undated), available at 〈 http://www.mmediu.ro/departament-mediu-en/ cernavoda-power-station.htm 〉.
107. It is of course possible for more than one party to dispute the significance of the environmental effects, which is not apparently provided for in Appendix IV.
108. Decision IV/3 (Inquiry Procedure) (ECE/MP.EIA/10, 28 July 2008) was made by the MOP and follows the report of the first inquiry commission (n. 93 below). It provides for Secretariat support if requested among other incidental matters.
109. See UN Economic Commission for Europe, Working Group on Environmental Impact Assessment, Inquiry Procedure - Review of the First Inquiry Procedure, Note by the Secretariat, Meeting of the Parties to the Convention on Environmental Impact Assessment in a Transboundary Context, Tenth Meeting, Geneva, 21-23 May 2007. See also Report on the Espoo Inquiry Commission: Danube Delta, May 2007, available at 〈 http://www.unece.org/env/eia/documents/ WG10-may2007/Presentation-InqCie.pdf 〉.
110. Convention on Wetlands of International Importance, Especially as Waterfowl Habitat (Ramsar, 2 February 1971).
111. Convention Concerning the Protection of the World Cultural and Natural Heritage (Paris, 16 November 1972).
112. Sixteenth Session of General Conference of UNESCO, Programme on Man and the Biosphere (1970).
113. See M. Koyano, n. 13 above, at 304-305. Koyano (at 305) credits its success with the fact that the parties were cooperative, non-governmental organizations and external experts were involved, the conclusion was unanimous and its work also covered mediation through the recommendations. See also W. Schrage, n. 12 above, at 46-47.
114. The documentation submitted to Romania is available on the Ministry website. See Ministry of Environment, Bâstroe Channel (26 February 2009), available at 〈 http://www.mmediu.ro/departament-mediu-en/bastroe-channel. htm 〉.
115. Information on the latest situation can be found at UN Economic and Social Council, Economic Commission for Europe, Meeting of the Parties to the Convention on Environmental Impact Assessment in a Transboundary Context, Implementation Committee, Seventeenth Session, Geneva, 14-18 September 2009, Annotated Provisional Agenda for the Seventeenth Session (ECE/MP.EIA/IC/2009/3, 19 May 2009), available at 〈 http://www.unece.org/env/eia/implementation/ implementation-committee-meetings.htm 〉.
116. UN Economic Commission for Europe, Working Group on Environmental Impact Assessment, Large-Scale Transboundary Projects - Application of the Convention to Complex Activities, Note by the Secretariat, (ECE/MP.EIA/WG.1/2009/4, 2 March 2009), available at 〈 http://www.unece.org/env/documents/2009/eia/wg.1/ ece.mp.eia.wg.1.2009.4.e.pdf 〉.
117. This is of course also the subject of the Kiev Protocol to the Espoo Convention (not in force), which concerns Strategic Environmental Assessment (SEA). See S. Marsden, Strategic Environmental Assessment in International and European Law (Earthscan, 2008).
118. With respect to the UK and the future of its own nuclear power programme since the conclusion of the MOX Plant case, it is also of note that the Planning Act 2008 has introduced provisions for 'national policy statements' including for nuclear power, the assessment of which is to be a key part of the new procedures. See Planning Act 2008 (UK), Section 5. Potentially the application of the SEA Directive will also be triggered.
119. Decision II/4 (Review of Compliance) (ECE/MP.EIA/4, 7 August 2001), Annex 1V of MOP-2, revised as Decision III/2 (Review of Compliance) (ECE/MP.EIA/6, 13 September 2004), Annex I of MOP-3, which provides the structure and functions of the Implementation Committee and procedures for review of compliance. Paragraphs 14 and 15 of Decision III/2 deal with the relationship between dispute settlement and the inquiry procedure. The first states that the Implementation Committee NCP is 'a non-adversarial and assistance-oriented procedure', which is 'without prejudice to the settlement of disputes provisions in Article 15 of the Convention'. The second that 'Where a matter is being considered under an inquiry procedure', it cannot be referred to the Implementation Committee.
120. UN Economic Commission for Europe, Meeting of the Parties to the Convention on Environmental Impact Assessment in a Transboundary Context: Review of the Work Done by the Working Group on Environmental Impact Assessment and Adoption of Decisions - Review of Compliance with the Convention, Report by the Implementation Committee, Fourth Meeting, Bucharest, 19-21 May 2008.
121. Note also T. Koivurova, 'The Convention on Environmental Impact Assessment in a Transboundary Context', in G. Ulfstein et al. (eds), Making Treaties Work: Human Rights, Environment and Arms Control (Cambridge University Press, 2007), 218, at 229-234.
122. M.A. Fitzmaurice, 'Environmental Dispute Avoidance and Settlement', in International Protection of the Environment, Recueil de Cours, Vol. 293 (Hague Academy of International Law, 2001), 336.
123. Only four parties have to date done this: Austria, Bulgaria, Liechtenstein and the Netherlands. Other than Liechtenstein, these are all EC Member States which, in disputes with other EC Member States, would therefore fall foul of the ECJ's 2006 ruling.
124. Note the Opinion of the Environment Commissioner in relation to the Nordstream Pipeline Project, which involves the construction of an offshore gas pipeline from Russia through the Baltic Sea to Germany. See S. Dimas, Environmental Aspects of the 'Nordstream Pipeline', Hearing on 'Nordstream' by the Committee of Petitions, in association with the Committee on Foreign Affairs, and the Committee on Industry, Research and Energy of the European Parliament (Speech/08/43, 29 January 2008), available at 〈 http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/08/43 〉.
125. There are nine affected parties, and although Russia is only a signatory to the Espoo Convention and is not an EC Member State, it has agreed to be bound by the Espoo requirements. See also N. Grishin, Environmental Impact Assessment of the Nord Stream Project Within the Framework of the Espoo Convention, Tenth Meeting of the EIA Working Group, UNECE, Geneva, 21-23 May 2007 (undated), available at 〈 http://www.unece.org/env/eia/documents/WG10-may2007/ Presentation-NordStream.pdf 〉.
126. For a summary of the correct procedure to follow, see N. Lavranos, 'MOX Plant Dispute - Court of Justice of the European Communities', n. 2 above, at 463.
127. Note the discussion in N. Lavranos, 'The Epilogue in the MOX Plant Dispute', n. 2 above, at 183-184, concerning the reluctance of the ECJ to give direct effect to provisions in international agreements including UNCLOS.
128. See The Epilogue in the MOX Plant Dispute ibid.
129. See UNECE, n. 84 above.
130. See E. Albrecht, n. 14 above, at 364.