MOX Plant and the Espoo Convention: Can Member State Disputes Concerning Mixed Environmental Agreements be Resolved Outside EC Law?
| Published date | 01 November 2009 |
| DOI | http://doi.org/10.1111/j.1467-9388.2009.00652.x |
| Author | Simon Marsden |
| Date | 01 November 2009 |
MOX Plant and the Espoo Convention: Can
Member State Disputes Concerning Mixed
Environmental Agreements be Resolved
Outside EC Law?reel_652312..327
Simon Marsden
This article examines implications of the MOX Plant
European Court of Justice (ECJ) case for dispute
settlement between Member States that are parties to
mixed environmental agreements. In 2006, the ECJ
held Ireland in breach of EC law for failing to consult
the Commission about its dispute with the UK and for
instituting proceedings under an international treaty
rather than through EC law; this was held necessary
because it concerned two Member States and EC law
which the ECJ was competent to determine. The com-
pleted litigation illustrates the operation of autono-
mous legal systems in public international law and the
proliferation of overlapping courts and tribunals.
Although it clarifies the relationship between interna-
tional and EC law, it leaves some questions unan-
swered, in particular regarding dispute settlement by
Member States that are parties to mixed agreements
outside EC law. Is non-EC dispute settlement still
possible, and if so how? Is this limited to judicial
processes? Viewing the dispute primarily as relating
to transboundary environmental impact assessement
(EIA), the article examines the role of the Espoo Con-
vention, in particular the Inquiry Commission. The
failure of Ireland to challenge the UK under the EIA
Directive implementing the Convention was noted by
the ECJ and some commentators. What is not clear is
whether the Inquiry Procedure, which is a scientific
process for determining effect significance when
parties dispute this, can still be used. It has not been
incorporated into the EIA Directive and there is
nothing comparable under EC law. Its recent applica-
tion in the Danube Delta case is considered and the
options for Member States outlined. It is concluded
that EC Member States that use this procedure against
other Member States are likely to be found in breach
of EC law.
INTRODUCTION
In 2006, the European Court of Justice (ECJ) effec-
tively brought an end to a trio of proceedings begun in
2001 by Ireland against the UK1pursuant to two trea-
ties they were parties to.2It concluded that since both
were EC Member States, disputes concerning treaties to
which the EC was also a party should be determined by
the ECJ, not arbitral tribunals.3The proceedings high-
lighted the complexities of self-contained regimes in
international law,4emphasized the proliferation and
1ECJ 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.
2Since the 2006 decision, the OSPAR, UNCLOS and ECJ proceed-
ings have been extensively discussed by 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; ‘The MOX Plant and
Ijzeren Rijn Disputes: Which Court is the Supreme Arbiter?, 19
Leiden Journal of International Law (2006), 223; ‘MOX Plant Dispute
– Court of Justice of the European Communities’, 2 European Con-
stitutional Law Review (2006), 456; and ‘The Epilogue in the MOX
Plant Dispute: An End Without Findings’, European Energy and Envi-
ronmental Law Review (2009), 180.
3P.J. Cardwell and D. French, ‘Who Decides? The ECJ’s Judgment
on Jurisdiction in the MOX Plant Dispute’, 19:1 Journal of Environ-
mental Law (2007), 121; C.P.R. Romano, ‘Commission of the Euro-
pean Communities v. Ireland, Case C-459/03, Judgment’, 101:1 The
American Journal of International Law (2007), 171; C. Semmelmann,
‘Forum Shopping between UNCLOS Arbitration and EC Adjudica-
tion – And the Winner...should be...the ECJ!’ European Law
Reporter (2006), 234; G. Jianjun, ‘Comments on Commission
of the European Communities v Ireland’, 7:2 Chinese Journal of
International Law (2008), 417.
4See, e.g., B. Simma and D. Pulkowski, ‘Of Planets and the Uni-
verse: Self-Contained Regimes in International Law’, 17:3 European
Journal of International Law (2006), 483; R. Higgins, ‘The ICJ, ECJ
and the Integrity of International Law’, 52 International and Compara-
tive Law Quarterly (2003), 1; N. Lavranos, ‘Concurrence of Jurisdic-
tion between the ECJ and other International Courts and Tribunals’,
August/September European Environmental Law Review (2005),
213, at 240; J. Pauwelyn, Conflict of Norms in Public International
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overlapping nature of courts and tribunals, and clari-
fied the relationship between international and EC law.5
While these issues have received the most attention in
the literature,6there has been no detailed analysis of
whether Ireland’s choice of these treaties was the most
appropriate litigation strategy. Suggestions have been
made that EC directives on access to environmental
information7and environmental impact assessment
(EIA)8should have been utilized,9yet there has been no
discussion concerning the broader application of the
underlying international law to the latter directive.
Indeed, while one author has proposed a protocol on
marine EIA to the UN Convention on the Law of the Sea
(UNCLOS) as a means of preventing disputes of this
kind again,10 it is somewhat surprising that the Espoo
Convention has not been discussed,11 since it deals with
many of the matters that featured in the proceedings,
notably procedures for transboundary environmental
impact assessment (TEIA) including access to informa-
tion, consultation and participation of ‘affected parties’
in relation to proposals being considered by the ‘party
of origin’.12
The object of this article is therefore to consider the
MOX Plant dispute in the light of the Espoo Conven-
tion, making specific reference to relevant provisions
including the Inquiry Procedure, which is used to deter-
mine effect significance when disputed by the parties. It
will first summarize the dispute and the litigation that
ensued, highlighting the implications for those unfa-
miliar with it. It will, second, examine the provisions in
the EIA Directive that were relevant to the dispute, and
since it only partly implements the Espoo Convention,
will, third, outline the Inquiry Procedure, which was
relevant to the dispute and was recently used in the
Danube Delta case.13 Although there are examples of
the Espoo Convention being applied directly between
EC Member States,14 other than where non-EC Member
States are also involved15 (as in the example of the appli-
cation to the Cernavoda nuclear power development,
described below), it is doubted whether this remains a
viable option. The article concludes that since the ECJ
decision in 2006, disputes between Member States are
now clearly matters for the Commission and ECJ rather
than arbitral tribunals and other institutions. While
this may further the autonomy of the European legal
order, without comparable procedures for determining
disputes over effect significance it may not be the best
outcome for the environment.
BACKGROUND TO
THE DISPUTE
Sellafield is the largest, oldest civilian nuclear complex
in the UK, situated on the English coast 112 miles away
from Ireland across the Irish Sea. Since the 1950s, it has
been the UK centre for reprocessing spent fuel rods
from nuclear power stations. At the time of the dispute,
the site contained a number of facilities, including a
mixed oxide fuel (MOX) Demonstration Facility.16 The
owner/operator, British Nuclear Fuels Limited (BNFL),
a UK company owned by the government, wanted to
Law: How WTO Law Relates to other Rules of International Law
(Cambridge University Press, 2003); Y. Shany, The Competing Juris-
dictions of International Courts and Tribunals (Oxford University
Press, 2003).
5T. Stephens, International Courts and Environmental Protection
(Cambridge University Press, 2009), at 295–301; N. Craik, The Inter-
national Law of Environmental Impact Assessment (Cambridge Uni-
versity Press, 2008), at 115–116 and 127.
6For 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〉.
7Directive 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).
8Directive 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).
9R. Churchill and J. Scott, ‘The MOX Plant Litigation: The First
Half-Life’, 53 International and Comparative Law Quarterly (2004), at
667, 675 and 676.
10 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’, 25 Michigan
Journal of Environmental Law (2004), 337.
11 Convention on Environmental Impact Assessment in a Trans-
boundary Context (Espoo, 25 February 1991).
12 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. 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.
13 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.
14 See E. Albrecht, ‘Implementing the Espoo Convention in Trans-
boundary EIA between Germany and Poland’, 28 Environmental
Impact Assessment Review (2008), 359, note in particular the section
on dispute settlement at 364.
15 For a list of EC Member States, see Europa, European Countries
(undated), available at 〈http://europa.eu/abc/european_countries/
index_en.htm〉. 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.
16 For comprehensive background to the dispute, see M. Tanaka, n.
10 above, at 358–370.
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