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Chapter 8 Co-Operation

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Chapter 8 Co-Operation 139 CHAPTER 8 CO-OPERATION INTRODUCTION 8.1. Ireland believes that its population, its natural resources, and its interests are at risk of being detrimentally affected by various aspects of the operation of the Sellafield plant and the associated shipments of nuclear materials. Particular aspects of their concern are identified elsewhere in this Memorial. Ireland appreciates, however, that it is not possible for the protection of all of a State’s interests in these matters to be secured entirely by detailed legal regulations. The issues are too complicated, and too changeable, to be dealt with comprehensively by such legal means. It is necessary for there to be a practical and effective co-operation between the States concerned, so that the rights and interests of each of them can be taken into account by any State that is proposing to take steps that might affect those rights and interests. As is explained below, particular importance is placed on the obligation to co-operate in the UNCLOS. 8.2. Ireland’s concerns relating to the failure of the United Kingdom to conduct an adequate environmental impact assessment were described in the previous chapter. That failure might be termed a “procedural” failure, in as much as it does not itself directly cause physical or economic harm. Rather, the failure cuts out a safety mechanism that is built into the UNCLOS in order to ensure, so far as is possible, that physical or economic harm is not caused by the implementation of projects such as the MOX plant. 8.3. The second of Ireland’s principal concerns in this case is also procedural. It is that the United Kingdom has failed to co-operate with Ireland as the obligations assumed by the United Kingdom under UNCLOS require, and that the United Kingdom continues to manifest an unwillingness to co-operate in a meaningful manner. 8.4. The obligation to co-operate is distinct from the obligation to carry out an adequate environmental impact assessment. Such an assessment might, in theory, be carried out unilaterally by a State. UNCLOS Article 206 does not itself explicitly impose a legal obligation upon the State planning the activity to involve other, potentially affected States in the assessment process, although it does require the assessment report to be made available to other States. ( An obligation to involve other States might be argued to be implicit in Article 206. It is hard to see that any one State can ever have such complete knowledge of the interests of its neighbours and other potentially affected States as to enable it to produce a satisfactory assessment without consulting them. Nonetheless, the duty is analytically distinct.) 8.5. The obligation to co-operate is also distinct from the obligation under UNCLOS to take adequate steps to protect and preserve the marine environment, which is the third of Ireland’s principal concerns and is addressed in the following chapter. That obligation relates to the substantive steps taken in order to protect and preserve the marine environment, whereas the obligation to co-operate is concerned with the procedure by which decisions on, inter alia, such steps are taken. 140 8.6. This chapter sets out the basis upon which Ireland considers the United Kingdom to have violated UNCLOS requirements on co-operation. The chapter is divided into four main sections. Section 1 describes the nature and scope of the duty under UNCLOS Article 123 to co-operate. Section 2 describes the obligations arising under Article 197 of UNCLOS. Those obligations include (i) the duty to inform; (ii) the duty to consult; and (iii) the duty to co-ordinate. Section 3 considers the implementation of the duty to co- operate in the circumstances of present case, and the failures by the United Kingdom to fulfil that duty. It does so by reference to (i) the failure to co-operate in relation to the assessment of the environmental implications of the MOX plant; (ii) the failure to co- operate in relation to the protection and preservation of the marine environment from risks associated with the MOX plant; and (iii), more specifically, the failure to co-operate in relation to the shipments of nuclear material associated with the MOX plant. Section 4 addresses the question whether the United Kingdom’s determinations that it has complied with its international obligations can be reviewed by the Tribunal. A. THE IRISH SEA AS A SEMI-ENCLOSED SEA AND THE DUTY TO CO-OPERATE 8.7. UNCLOS imposes upon the United Kingdom a duty to co-operate with Ireland in respect of the environmental implications of the development and operation of the MOX plant and associated facilities at Sellafield. This duty is imposed by several UNCLOS Articles. UNCLOS Article 123 imposes specific duties upon States that border semi- enclosed seas. Article 197, in contrast, imposes a general duty, applicable in respect of all seas. It is supplemented by obligations applicable by virtue of the terms of various UNCLOS Articles including Articles 192, 193, 194, 206, 207, 211, 212, 213 and 217, which are similarly applicable to all sea areas. These provisions are discussed in turn. UNCLOS ARTICLE 123: SEMI-ENCLOSED SEAS 8.8. Article 123 sets out specific principles applicable to enclosed and semi-enclosed seas. Almost uniquely in the UNCLOS1 enclosed and semi-enclosed seas are singled out from among the world’s seas and made the subject of special provisions. The legal obligations imposed by UNCLOS Article 123 on States bordering semi-enclosed seas are specific, and are not applied to States that do not border semi-enclosed seas. 8.9. UNCLOS Article 123 reads as follows: “Article 123 Co-operation of States bordering enclosed or semi-enclosed seas States bordering an enclosed or semi-enclosed sea should co-operate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end they shall endeavour, directly or through an appropriate regional organization: (a) to co-ordinate the management, conservation, exploration and exploitation of the living resources of the sea; 1 The other examples being straits governed by long-standing regimes, under Article 35(c), and especially vulnerable sea areas, under Articles 211(6) and 234. 141 (b) to co-ordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment; (c) to co-ordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area; (d) to invite, as appropriate, other interested States or international organizations to co-operate with them in furtherance of the provisions of this article.” DEFINITION OF SEMI-ENCLOSED SEAS 8.10. The Irish Sea is unquestionably a semi-enclosed sea within the meaning of UNCLOS Article 123. UNCLOS Article 122 defines a semi-enclosed sea as: “a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States” The Irish Sea is encircled by the United Kingdom and Ireland, and is connected to the North Atlantic by the North Channel (approximately 20 kms wide) in the north, and by St George’s Channel (approximately 80 kms wide) in the south. The whole of the Irish Sea falls within the 200-mile zones that have been claimed both by Ireland2 and by the United Kingdom since 1976. It is not in dispute that the Irish Sea is a semi-enclosed sea within the meaning of UNCLOS.3 8.11. There are two sets of duties that are applied by UNCLOS to the littoral States of semi-enclosed seas. The first is the duty to take into account the particular characteristics of the sea in question. The second is the duty of co-operation. THE DUTY TO TAKE ACCOUNT OF SPECIAL CHARACTERISTICS OF SEMI-ENCLOSED SEAS 8.12. The drafting history of Article 123 makes it clear that the States participating in UNCLOS III considered the duty to have regard for the “special characteristics” of those areas to be a key element of the concept of enclosed and semi-enclosed seas. Thus, an early Iranian proposal stipulated that “[T]he general rules set out in this Convention shall apply to an enclosed or semi-enclosed sea in a manner consistent with the special characteristics of these seas and the needs and interests of their coastal States.”4 Similar provisions were included in a number of other drafts of what became Article 123.5 8.13. The insistence upon regard for the particular characteristics of semi-enclosed seas is reflected in Article 15 of the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to 2 The Irish claim appears in the Maritime Jurisdiction Act (Exclusive Fishery Limits) Order 1976. 3 See Chapter 1, paragraphs 6-9. 4 A/CONF.62/C.2/L.72, 21 August 1974, UNCLOS III, Official Records, vol III, p 237. 5 See S. N. Nandan, S. Rosenne and N. R. Grandy, United Nations Convention on the Law of the Sea 1982: A Commentary (the “Virginia Commentary’), vol III, (1995), pp 358-65. 142 the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (the “Straddling Stocks Agreement”).6 Article 15 reads as follows:- “In implementing this Agreement in an enclosed or semi-enclosed sea, States shall take into account the natural characteristics of that sea and shall also act in a manner consistent with Part IX of the Convention and other relevant provisions thereof.” 8.14.
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