The First MOX Plant Award: The Need to Harmonize Competing Environmental Regimes and Dispute Settlement Procedures

Leiden Journal of International Law

Volumn 17, Issue 4, 2004, Pages 815-827

  Shany, Yuval ^a  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

Author keywords

arbitration; environmental law; international courts and tribunals; jurisdiction; self contained regimes

Indexed keywords

EID: 85009619152     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156504002237     Document Type: Article

References (47)

1. Convention for the Protection of the Marine Environment of the North-East Atlantic, 22 Sept. 1992, (1992)
2. MOX Plant (Ireland v. UK), (2003) 42 ILM 1187 (hereafter OSPAR Award).
3. Directive 90/313/EEC on the Freedom of Access to Information on the Environment, 1990 OJ (L158) 56.
4. Directive 2003/4/EC on Public Access to Environmental Information, 2003 OJ (L 41) 26.
5. 1998 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in EnvironmentalMatters, (1999) 38 ILM 517. At the time of the OSPAR arbitration proceedings, Ireland and the United Kingdom have signed but not ratified the Aarhus Convention.
6. The term ‘self-contained regime’ was coined by the ICJ in the Teheran Hostages case, with regard to the exclusive nature of the remedies developed under international diplomatic law to respond to violations of that law by diplomatic agents. United States Diplomatic and Consular Staff in Teheran (US v. Iran), Judgement of 24 May 1980, [1980] ICJ Rep. 3, at 41. See also Prosecutor v. Tadić, Interlocutory Appeal on Jurisdiction, Case IT-94-1-AR72, ICTY Appeals Chamber, 2 Oct. 1995, (1996) 35 ILM 32, at 39 ('In international law, every tribunal is a self-contained system (unless otherwise provided)'). For discussion of the self-contained regimes theory seeB.Simma,'Self-ContainedRegimes’, (1985)XVINetherlandsYearBook of InternationalLaw111, at 117; G. Abi-Saab, ‘Fragmentation orUnification: SomeConcludingRemarks’, (1999) 31NYUJournal of International Law and Politics 919, at 926; Y. Shany, The Competing Jurisdictions of International Courts and Tribunals (2003), 99-100.
7. 1982 United Nations Convention on the Law of the Sea, (1982) 21 ILM 1261 (hereafter UNCLOS).
8. Case C-469/03, Commission v. Ireland, Notice of Action of 30 October 2003, 2004 OJ (C7) 24.
9. 1957 Treaty Establishing the European Atomic Energy Community (Euratom), 298 UNTS 167 (hereafter Euratom Treaty).
10. Euratom Directive 96/29, 1996 OJ (L159) 1.
11. UK Environmental Information Regulations 1992, SI No. 1992/3240.
12. MOX Plant (Ireland v. UK), Request for Provisional Measures by the Republic of Ireland of 9 Nov. 2001, http://www.itlos.org/case documents/2001/document en 191.pdf.
13. 1957 Treaty Establishing the European Community (Consolidated Version), Art. 292, 2002 OJ (C325) 1; Euratom Treaty, Art. 193.
14. OSPAR, Art. 2.Theprinciplesof international environmental lawembracedbytheOSPARConvention largely correspond to the Principles adopted by the 1992 RioDeclaration. 1992 RioDeclaration on Environment and Development, (1992) 31 ILM 874 (hereafter Rio Declaration).
15. OSPAR, Arts. 10-13.
16. OSPAR., Art. 32.
17. Rio Declaration, Principle 10 ('Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided').
18. Guerra v. Italy, Judgement of 19 February 1998, 1998-I Eur.Ct.H.R. 2101.
19. Case C-321/98, Mecklenburg v. Kreis Pinneberg der Landrat, [1998] ECR I-3809; R. v. Secretary of State for the Environment, Transport and the Regions, ex parte Alliance Against the Birmingham Northern Relief Road, [1999] JPL 231.
20. OSPAR Award, at para. 136.
21. OSPAR Award., at para. 143.
22. OSPAR Award., at para. 127.
23. Art. 2(1)(e) of Directive 2003/4 includes within the scope of the information subject to freedom of access: ‘cost-benefit and other economic analyses and assumptions usedwithin the framework of themeasures and activities referred to in (c) [measures and activities likely to affect or designed to protect the environment]’.
24. OSPAR Award, at para. 172.
25. It has been argued that this approach facilitates manipulation on the part of states engaged in activities with potentially adverse effects, since they may divide their activities into different segments and require a showing of adverse effects for each and every segment. M. 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’, (2004) 25 Michigan Journal of International Law 337, at 388.
26. See, e.g., Rio Declaration, Principle 15; OSPAR Convention, Art. 2(2)(a).
27. See OSPAR Award, Dissenting Opinion of Dr Griffith, at para. 92. Griffith also suggests that application of the precautionary principle should have lowered the threshold of evidence needed to demonstrate environmental harm.
28. OSPAR Convention, Preamble, at para. 11.
29. OSPAR Award, at para. 142 (emphasis added).
30. OSPAR Award., at para. 143; see also para. 85.
31. OSPAR Award., at para. 101.
32. Mecklenburg, OSPAR Award note 19, at paras. 19-21.
33. The tribunal also noted minor textual differences between the two instruments. Whereas OSPAR Convention, Art. 9(2), covers ‘information. on the state of the maritime area’, Directive 90/313 uses in Art. 2 the phrase ‘information relating to the environment’. See OSPAR Award, at para. 178. For another minor difference, see Mecklenburg., at note 124.
34. OSPAR Award, at para. 143.
35. OSPAR Award., at para. 141.
36. MOX Plant, Order of 3 Dec. 2001, ITLOS, at para. 49-51 (emphasis added), available at http://www.itlos.org/ case documents/2001/document en 197.pdf.
37. See generally J. Pauwelyn, Conflict of Norms in Public International Law: HowWTO Law Relates to Other Rules of International Law (2003).
38. In fact, the OSPAR Convention refers on a few occasions to standards derived from general international law. OSPAR Convention, Arts. 9(3), 32(6). This seems to indicate an integrative rather than a self-contained approach on the part of the drafters of theConvention towards the relations between OSPAR and non-OSPAR law.
39. Southern Bluefin Tuna (Australia and New Zealand v. Japan), Award on Jurisdiction and Admissibility of 4 August 2000, UNCLOS arbitration, at para. 54 (emphasis added), (2000) 39 ILM 1359.
40. MOX Plant (Ireland v. UK), Order No. 3 of 24 June 2003, UNCLOS arbitration, at para. 26, http://www.pcacpa. org/PDF/MOX%20Order%20no3.pdf.
41. See also ‘US-Standards for Reformulated and Conventional Gasoline’, WTO Appellate Body Report of 20May 1996, (1996) 35 ILM 603, at 621 ('[T]he General Agreement is not to be read in clinical isolation from public international law').
42. P. Sands, ‘Treaty, Custom and the Cross-fertilization of International Law’, (1998) 1 Yale Human Rights and Development Law Journal 85.
43. OSPAR Award, Dissenting Opinion of Dr Griffith, at para. 23.
44. OSPAR Award., at para. 16.
45. See, e.g., Czech Republic v. CME, SVEA Court of Appeals, (2003) 42 ILM 919, at 953-4; Southern Bluefin Tuna (Australia and New Zealand v. Japan), ITLOS Order of 27 August 1999, available at http://www.itlos.org/ case documents/2001/document en 116.pdf.
46. E.g, the final outcome of the CME case (Czech Republic v. CME note 45) might encourage investors to structure complex investments in a way which falls within the terms of more than one bilateral investment treaty (BIT). This could allow them to institute, in the event of a dispute,multiple proceedings against the host state.
47. MOX Plant (UNCLOS arbitration), the final outcome of the CME case (Czech Republic v. CME note 45) might encourage investors to structure complex investments in a way which falls within the terms of more than one bilateral investment treaty (BIT) note 40, at para. 28.