1982 UNITED NATIONS 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
VOLUME I
26 JULY 2002 ii iii
MEMORIAL OF IRELAND
CONTENTS
List of Colour Plates in Volume I ...... xi
PART I: THE FACTUAL AND HISTORICAL BACKGROUND ...... 1
CHAPTER 1: INTRODUCTION...... 3 A. Geography and Oceanography...... 6 B. The Irish Sea and its Importance to Ireland ...... 8 Radioactivity in the Irish Sea...... 9 OSPAR Reports...... 10 Other Reports...... 14 Conclusions ...... 15 C. The Sellafield Site (MOX, THORP and Related Facilities) ...... 16 Operational Activities...... 18 Radioactive Waste Management...... 20 Transport Activities...... 22 Transfer of MOX and THORP from BNFL to the New Liabilities Management Authority ...... 22 D. The General Concerns of the Irish People, the Irish Government and Third Governments...... 23
CHAPTER 2: THE MOX PLANT...... 27 A. The Manufacture of MOX fuel, and Related Activities...... 27 The Nuclear Fuel Cycle...... 28 Step 1: Reprocessing of Spent Nuclear Fuel ...... 29 The THORP Reprocessing Plant...... 30 Step 2: The Manufacture of MOX Fuel ...... 31 B. International Shipments of Radioactive Materials through the Irish Sea...... 34 Transports of Spent Fuel into the United Kingdom ...... 34 Transport of MOX fuel from the United Kingdom...... 34 Transport of MOX fuel to the United Kingdom...... 35 Opposition to the Transport of Radioactive Materials by Sea...... 35 Vessels Used for Transportation ...... 37 C. MOX Economics – Its Market, and Competition ...... 38 D. Ownership and Management of the Sellafield Site: BNFL and the Proposed Liabilities Management Authority...... 39 iv
The MOX Plant and the LMA...... 39 BNFL’s Compliance Record...... 41 E. Regulatory Background and the Decision-making Process ...... 44 Planning Permission and the 1993 Environmental Statement...... 45 The Justification Process and the Discharge Authorisations...... 45 The Decision of 3 October 2001 ...... 47
CHAPTER 3: ENVIRONMENTAL IMPLICATIONS OF THE MOX AUTHORISATION...... 51 Introduction...... 51 A. Pollution Arising as a Result of the Authorisation of the MOX Plant...... 52 (1) The MOX Plant and THORP Are Inextricably Linked...... 52 (2) The Overall Amounts of the Discharges from Sellafield ...... 54 (3) The Effects of the MOX Development on the Amounts of the Discharges from Sellafield ...... 56 Planned Discharges of Radioactive Isotopes from MOX Production...... 56 Planned Discharges of Radioactive Isotopes from THORP and Other Associated Facilities ...... 58 Consequences for Liquid and Aerial Discharges From Sellafield for Three Different Operational Scenarios...... 59 Unplanned Discharges from MOX, THORP and Associated Facilities, and Other Factors That Could Affect Discharges from Sellafield...... 61 B. Radiation Pathways from the MOX Plant and Associated Facilities and Shipments, and Impacts upon Humans and the Environment...... 62 (1) Radiation Pathways...... 62 (2) The Effects of Discharges into the Irish Sea ...... 63 Effects upon Marine Life...... 63 Effects on Humans ...... 64 (3) The Effects of Radiation...... 65 C. Use of Abatement Technologies ...... 66
CHAPTER 4: THE DISPUTE...... 69 A. The THORP Plant: 1977-1984...... 70 B. The MOX Environmental Statement: 1993 ...... 70 C. The Discharge Authorisations...... 71 D. “Justification” and the OSPAR Dispute: 1997-2001 ...... 71 The Consultation Process...... 72 The Justification Decision of 3 October 2001...... 75 Ireland’s Efforts to Obtain Information...... 75 UNCLOS...... 79 v
Proceedings before the International Tribunal for the Law of the Sea and the Order of Tribunal Dated 3 December 2001 ...... 82 Developments Subsequent to the ITLOS Order...... 83 Exchange of Information between the Parties...... 84 Transportation of Radioactive Materials to and from Sellafield in the Light of the United Kingdom’s Assurances to the ITLOS and Ireland...... 85
PART II: THE LAW ...... 93
CHAPTER 5: JURISDICTION...... 95
CHAPTER 6: THE APPLICABLE LAW...... 99 Introduction...... 99 A. The Relationship between the Rules of the 1982 UNCLOS and Other Rules of International Law...... 99 B. The Application of the Rules in UNCLOS ...... 101 C. The Application of Other Rules of International Law Not Incompatible with the Convention...... 102 (1) International Treaties...... 102 (2) Customary International Law...... 105 Precautionary Principle ...... 105 Sustainable Development and the Obligation to Apply Current Norms and Standards of Environmental Protection ...... 107 (3) Internationally Agreed Standards and Recommended Practices and Procedures ...... 109 Summary and Conclusions ...... 110
CHAPTER 7: ENVIRONMENTAL IMPACT ASSESSMENT...... 111 Introduction...... 111 A. The Rationale for Environmental Assessment...... 112 B. The Law...... 113 The Source of the Legal Obligations...... 113 The Duties under UNCLOS ...... 113 Other International Instruments...... 115 (a) Overview of Relevant Instruments (in Chronological Order) ...... 116 (b) Environmental Impact Statement: Common Requirements ...... 118 (c) Environmental Impact Assessment: The Need to Update ...... 120 C. The Facts...... 122 The 1993 Environmental Statement ...... 122 Ireland’s Concerns about the 1993 Environmental Statement (1993-2001)...... 126 The 1997 EURATOM Opinion...... 128 The 55 Questions...... 128 vi
The Inadequacies of the 1993 Environmental Statement: an Independent Report ...... 129 Other UK Environmental Statements in the Early 1990s...... 131 The 1996 NIREX Environmental Statement and Its Rejection by the UK Inspector and the UK Government ...... 132 The 2000 US MOX Plant Environmental Report...... 133 D. Conclusions: the United Kingdom Has Violated Article 206 of UNCLOS...... 136
CHAPTER 8: CO-OPERATION ...... 139 Introduction...... 139 A. The Irish Sea as a Semi-enclosed Sea and the Duty to Co-operate...... 140 UNCLOS Article 123: Semi-enclosed Seas...... 140 Definition of Semi-enclosed Seas ...... 141 The Duty to Take Account of Special Characteristics of Semi- enclosed Seas...... 141 The Duty of Co-operation under Article 123 ...... 143 The Juridical Nature of the Obligation under Article 123...... 143 (i) Article 123 and the Interpretation of UNCLOS ...... 144 (ii) Article 123 and the Principle of Good Faith...... 144 (iii) Article 123 and the Principle of the Abuse of Rights...... 145 Conclusion Regarding Article 123...... 146 B. The General Duty to Co-operate under UNCLOS Article 197...... 147 (1) The Duty to Inform ...... 152 (2) The Duty to Consult ...... 158 (3) The Duty to Co-ordinate ...... 160 C. Implementation of the Duties to Inform, to Consult and to Co-ordinate in the Present Case ...... 162 The History of Non-cooperation ...... 163 The Failure to Provide Information...... 164 Non-cooperation on MOX Start-up...... 165 Non-cooperation over Environmental Impact Assessments...... 165 Non-cooperation over Protection and Preservation of the Marine Environment...... 169 Non-cooperation in Bilateral Dealings ...... 170 Non-cooperation in the Context of the Present Legal Proceedings...... 173 The Terrorist Threat...... 174 International Concern at the Terrorist Threat ...... 175 The Duty to Co-operate over Nuclear Security...... 176 Duties under UNCLOS...... 177 Duties under Other International Instruments ...... 178 The 1994 Convention on Nuclear Safety ...... 178 vii
The 1997 Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, 1997 ...... 179 The Terrorist Threat Raised in Ireland-UK Meetings ...... 180 D. Non-cooperation over the Shipments of Nuclear Materials Associated with the MOX Plant ...... 183 International Concern over Nuclear Shipments ...... 183 Duties under UNCLOS ...... 184 Duties under Other International Instruments ...... 184 The 1980 Convention on the Physical Protection of Nuclear Material...... 185 The IAEA Guidelines on Physical Protection of Nuclear Material and Nuclear Facilities...... 187 IMO Instruments ...... 189 Other Indications of International Concern ...... 190 The Failures Regarding the Associated Shipments...... 191 E. The United Kingdom’s Determinations Are Reviewable ...... 197 F. Conclusions...... 199
CHAPTER 9: PREVENTION OF POLLUTION...... 201 Introduction...... 201 A. The UNCLOS obligations to prevent radioactive pollution of the Irish Sea ...... 203 Introduction: The General Obligations...... 203 The specific obligations to prevent pollution from land-based sources...... 206 The obligation to prevent pollution from vessels...... 207 The obligation to prevent pollution through the atmosphere ...... 208 B. International law and the prevention of radioactive pollution of the marine environment ...... 210 General Background...... 210 Specific legal instruments and obligations imposing rules and standards and recommending practices and procedures...... 214 Summary on International Rules and Standards ...... 220 C. The discharge and release of radioactive substances associated with the authorisation of the MOX plant Is “pollution” and constitute “toxic, harmful and persistent substances” ...... 221 Pollution ...... 221 Radioactive substances are “toxic”, “harmful” and “persistent”...... 223 D. The United Kingdom has violated UNCLOS ...... 224 Environmental Impact Assessment ...... 224 Precautionary Principle ...... 225 Violations of the General Obligation to Prevent Pollution ...... 229 viii
1. The United Kingdom has failed to “take all measures consistent with UNCLOS that are necessary” to prevent, reduce and control pollution of the Irish Sea...... 229 2. The United Kingdom has failed to take “all measures necessary” to ensure that MOX plant does not cause damage by pollution to Ireland and its environment...... 231 3. The United Kingdom has failed to take “all measures necessary” to ensure that pollution from the MOX plant “does not spread beyond the areas” where it exercises sovereign rights ...... 232 Violations of the obligations to prevent pollution from land- based sources...... 233 4. The United Kingdom has failed to take measures “designed to minimize to the fullest possible extent” the release of radioactive substances arising from the authorisation of the MOX plant...... 233 5. The United Kingdom has failed to implement applicable international rules and standards to prevent, reduce and control pollution of the Irish Sea arising from the authorisation of the MOX plant...... 238 Violations of the obligation to prevent pollution from vessels ...... 242 6. The United Kingdom has failed to take “all measures necessary” to “minimize to the fullest possible extent” pollution from vessels involved in transports of radioactive substances associated with the MOX plant ...... 242 7. The United Kingdom has failed to ensure compliance by vessels flying its flag or of its registry with applicable international rules and standards, and has failed to ensure that vessels associated with MOX transports are prohibited from sailing were not in compliance with those rules and standards...... 244 Violations of the obligation to prevent pollution through the atmosphere ...... 244 8. The United Kingdom has failed to take measures “designed to minimize to the fullest possible extent” the release into the atmosphere of radioactive substances arising from the authorisation of the MOX plant...... 244 9. The United Kingdom has failed to adopt laws and regulations and take other measures necessary “to implement applicable international rules and standards” to prevent, reduce and control pollution of the Irish Sea from or through the atmosphere ...... 246 E. Summary and Conclusions...... 247 ix
PART III: THE RELIEF SOUGHT ...... 249
CHAPTER 10: THE ROLE OF THE TRIBUNAL AND THE RELIEF SOUGHT BY IRELAND...... 251 The Retrospective Determinations...... 252 The Prospective Order ...... 253 The Relief Sought ...... 253
LIST OF ANNEXES...... 257
VOLUME II: REPORTS AND STATEMENTS COMMISSIONED BY THE RPII...... 259
VOLUME III: ANNEXES...... 261 A. Documents related to UNCLOS Proceedings...... 261 B. Correspondence between the Parties...... 261 C. Ireland’s submission to the OSPAR Tribunal...... 265 D. Legal instruments...... 265 E. United Kingdom Government documents ...... 266 F. Documents prepared for or by United Kingdom Government Departments ...... 266 G. BNFL’s Reports and documents ...... 267 H. Independent Studies ...... 267 I. Press Releases and Other Documents ...... 268 J. Miscellaneous Documents ...... 268
VOLUME IV: THE MOFFF REPORT ...... 270 x xi
LIST OF COLOUR PLATES IN VOLUME I
All maps and figures are for illustrative purposes and are shown for the purposes of the present proceedings only
Plate 1: General Location Map – Ireland and the United Kingdom Plate 2: The Irish Sea Area Plate 3: Location of Sellafield in the United Kingdom Plate 4: Aerial Photograph of Sellafield Site, River Calder and Irish Sea Plate 5: Region III and the other OSPAR Maritime Regions from, OSPAR Commission QSR 2000 for Region III Plate 6: Transportation Routes for Nuclear Shipments to and from Sellafield Plate 7: Designated Bathing Areas and Marine Sports Plate 8: Search and Rescue Zones of Responsibility Plate 9: Irish Pollution Response Zone, Marpol 73/78 and Search and Rescue Area Plate 10: East Coast Fishing Ports, Aquaculture and Fish Processing Plate 11: Foreign Fishing Rights in the 6 to 12 Mile zones Plate 12: Maritime Zones Plate 13: MOX Fabrication Process Plate 14: Mean Caesium-137 Activity Concentrations in Coastal Marine Sediments and Sea-Water (Source: Radioactivity Monitoring of the Irish Marine Environment, 1998-99, September 2000. (RPII) xii
PART I:
THE FACTUAL AND HISTORICAL BACKGROUND 2
3
CHAPTER 1
INTRODUCTION
1.1. This Memorial is submitted pursuant to the Rules adopted by the Arbitral Tribunal fixing 26 July 2002 as the date by which Ireland is to submit its Memorial in this arbitration. The Memorial addresses all factual and legal matters relating to Ireland’s claim as set out in its Amended Statement of Claim of 21 January 2002.1
1.2. On 3 October 2001 the Government of the United Kingdom adopted a Decision2 that the Mixed Oxide fuel plant at Sellafield (“the MOX plant”) was “justified”, that its benefits outweighed its costs. The October 2001 Decision opened the way for the commissioning and operation of the MOX plant. The Decision was taken notwithstanding the following facts, none of which are in dispute. The Irish Sea is a semi-enclosed sea. It is already amongst the most radioactively polluted seas in the world. The MOX plant itself will cause further radioactive wastes to be discharged directly and indirectly into the Irish Sea. The operation of the MOX plant will result in even larger amounts of new and additional discharges of radioactive wastes to be discharged directly and indirectly into the Irish Sea from the THORP reprocessing plant, which will reprocess spent nuclear fuel into plutonium oxides for use in the manufacture of MOX fuel. The operation of the MOX plant will also lead to a significant increase in international transports of radioactive substances through the Irish Sea, in close proximity to Ireland. And the operation of the MOX plant will cause significant new and additional volumes of radioactive wastes to be stored at the Sellafield site.
1.3. This case is not a dispute over science. It is in essence a dispute over the failure of the United Kingdom to fulfil three categories of legal obligation under UNCLOS: (1) The obligation to carry out a proper assessment of the likely impact of the MOX development upon the marine environment of the Irish Sea before authorising that development. Ireland considers that the United Kingdom has violated Article 206 of UNCLOS by not having caused to have been prepared a proper environmental impact assessment which assessed all the environmental consequences of the authorisation of the MOX plant. The environmental consequences of the MOX plant itself were inadequately assessed, and there has never been an assessment of the environmental consequences of the THORP plant, the additional waste to be stored at Sellafield, and the international transports of radioactive materials associated with the authorization of the MOX plant, including security-related issues. (2) The obligation to co-operate with Ireland, as co-riparian of the semi-enclosed Irish Sea, in taking the steps necessary to protect and preserve the marine
1 See Order No 1, Annex VII Tribunal, 2 July 2002, vol 3(1), Annex 6. See also Ireland’s Amended Statement of Claim, 21 January 2002 and the explanatory note on the Amended Statement, vol 3(1), Annexes 1 & 2. 2 Vol 3(2), Annex 92. 4
environment of that sea. Ireland considers that the United Kingdom has violated Article 123 and 197 UNCLOS, in particular by having failed to provide Ireland with adequate information of the environmental consequences arising from the MOX project, including in respect of security issues. It has failed to engage properly in consultations with Ireland, and to take into account Ireland’s rights and interests, when deciding whether and how to proceed with the implementation of the MOX project. It has not co-operated with Ireland in the development of strategies for coping with the pollution and the risk of pollution arising from the MOX project. (3) The obligation placed directly upon the United Kingdom itself to take all the steps necessary to protect and preserve the marine environment of the Irish Sea. Ireland considers that the United Kingdom has violated various provisions of UNCLOS, including in relation to environmental impact assessment and co- operation with Ireland. The provisions violated include Articles 192, 193, 194, 207, 211, 212, 213, 217 and 222, as well as obligations to apply a precautionary approach and make use of “best available technologies” and “best environmental practices”. In particular, the United Kingdom has failed to take all measures necessary to prevent, reduce and control pollution of the Irish Sea, to avoid causing pollution to Ireland and its environment, and to ensure that pollution from the MOX plant “does not spread beyond the areas” where it exercises sovereign rights. The United Kingdom has also failed to take the measures designed to minimize “to the fullest extent possible” the release of radioactive substances arising from the authorisation of the MOX plant (including from vessels), and to adopt or implement international rules and standards to prevent, reduce and control pollution of the Irish Sea arising from the authorisation of the MOX plant.
1.4. This Memorial comprises this Volume and 4 volumes of appendices and annexes. This Volume 1 is divided into 3 Parts. Part 1 addresses the factual and historical background of the dispute. Chapter 1 addresses geographical issues, the state of the Irish Sea, the Sellafield site and Ireland’s general concerns. Chapter 2 addresses the MOX plant itself, including the manufacturing process, the transports, the economics, and the regulatory background. Chapter 3 identifies the environmental implications of the authorisation of the MOX plant, including from the MOX and THORP plants, international transports and waste storage issues. Chapter 4 summarises the history of the dispute, from the authorisation of the THORP plant through to the justification of the MOX plant, and subsequent developments. Part 2 addresses the law, in relation to both jurisdiction and the merits. Chapter 5 addresses the jurisdiction of the Annex VII Tribunal. Chapter 6 deals with the law to be applied by the Annex VII Tribunal. Chapter 7 is concerned with environmental impact assessment. Chapter 8 deals with Co-operation. Chapter 9 deals with pollution. The Memorial concludes with Part 3: Chapter 10 indicates the role of the Tribunal and restates the relief sought by Ireland. Volume 2 comprises a set of appendices, namely independent reports (opinions of experts and scientific reports) which have been commissioned by Ireland for the purposes of these proceedings, Volume 3, made up of three parts, contains general annexes, and Volume 4 comprises the whole of the Environmental Report prepared in 2000 for a non-commercial United States MOX facility. In Volume 1 a number of paragraphs (and certain annexes) relating to material, which may be considered by one or both States to be subject to a possible requirement of confidentiality on grounds of security, have been blacked out. They are included in a confidential folder provided to the Tribunal as Volume 5. 5
1.5. This Chapter is divided into four sections. • Section A sets out the introductory factual background, describing in brief the geographical context of the dispute. It describes the physical qualities of the Irish Sea (including oceanography and bathymetry), and identifies those of its principal features which are unique and which are particularly relevant to this case, in particular the propensity to retain radionuclides which are discharged into it; • Section B explains the importance of the Irish Sea for Ireland, in terms of its ecological, recreational and economic functions. This Section also describes the quality of the Irish Sea, which has been significantly diminished by the radioactive pollution that result from the nuclear activities carried out at the Sellafield site by the United Kingdom since the 1950s; • Section C describes the Sellafield site and the historical and ongoing nuclear activities carried out there. In particular it sets out Ireland’s concerns with regard to the MOX plant and its implications for the continued and extended operation of the THORP nuclear reprocessing plant. It also briefly describes the other related activities in Sellafield, including facilities for clean up, storage and disposal of radioactive wastes on site; • Section D summarises the history of concerns in Ireland regarding the operation of the new MOX plant and its implications for the continued and extended operation of the THORP plant, as well as for the Sellafield site as a whole. These concerns have been voiced by the Government of Ireland and many of its citizens. Ireland’s concerns are shared by many third states in the North East Atlantic region, as well as states which are located in proximity to the transport routes by which MOX and other radioactive material is transported to and from the Sellafield site in relation to the MOX plant.
This Chapter therefore sets the scene, explaining the reasons for Ireland’s longstanding, continuing and growing concerns about the impact on the Irish Sea of nuclear activities at Sellafield. The authorisation of the MOX plant – with all that it implies for the extension of other activities at Sellafield – signals a further intensification of nuclear activities at the Sellafield site, including an extension of the life of the THORP plant and the generation of additional quantities of radioactive wastes. As the later parts of this Memorial will show, the authorisation of the MOX plant is difficult to reconcile with the United Kingdom’s obligations under the 1982 UN Convention on the Law of the Sea (“UNCLOS”), including the related subsequent commitments which the United Kingdom undertook in 1992 not to allow or promote activities of this kind in or near the marine environment, and the even more specific commitments undertaken in 1998 to significantly and progressively reduce discharges of radioactive substances into the marine environment and to reduce concentrations of radionuclides in the Irish Sea to “close to zero” by 2020. 6
A. GEOGRAPHY AND OCEANOGRAPHY
1.6. Ireland is situated in the north west of Europe between 51.5° and 55.5° north latitude and between 5.5° and 10.5° west longitude. Ireland’s land area covers 70,282 square kilometres, and consists of Munster, Leinster, Connacht and three counties of Ulster. It has a population of 3,840,000 with a density of 171 per square mile. Along the Irish coastline, southwards from Northern Ireland, lie around fifty significant communities, including Ireland’s capital Dublin. These cities, towns and villages, comprise a regular coastal population of some 1.5 million people and increases significantly during holiday periods. See Plates 1 and 2 which set out a general location map and a map of the Irish Sea region.
1.7. The Irish Sea lies to the east coast of Ireland. It is a relatively small, semi-enclosed sea3 which is a part of the North-west European continental shelf located approximately between latitudes 520 and 550 N and longitudes 30 and 60 W. It is situated within Region III of the waters covered by the 1992 Convention on the Protection of the Marine Environment of the North East Atlantic (1992 OSPAR Convention).4 Plate 5 sets out the Region III area covered by the 1992 OSPAR Convention. It has a water surface area of approximately 47,000km2 and over 4,000km of coastline. West of about 4.50W the sea bottom forms a deep channel 300km in length and 30-50km in width, with a minimum depth of 80m and a maximum depth of over 275m.5 It is connected to the Atlantic Ocean by narrow entrances in the north and south through the North Channel and the St. George’s Channel. The total volume of the Irish Sea is about 2,400 km. Approximately 80% of this volume lies in the region to the west of the Isle of Man.
1.8. The pattern of water circulation in the Irish Sea is closely related to the semi- enclosed character of the sea, and is highly seasonal in nature. During the summer period, the solar heating together with the density driven currents create a stable gyre to the west of the Isle of Man. The effect of the gyre is caused by warmer water circulating about a dome of colder denser water, creating the closed circulation feature. The density fronts around the dome are strong and prevent complete mixing of water. This in turn reduces the effective amount of water for dilution within the Irish Sea and tends to cause elevated levels of radionuclides to be drawn towards the vicinity of the western Irish Sea gyre. This increases the likelihood of retaining, for many years in that area, radionuclides from Sellafield in both solute and sediment form.6 Figures of the effects of the gyre as well as illustrations of tidal lines of the Irish Sea are set out in a Report on the Oceanography of the Irish Sea.7
1.9. This gyre was unknown during the planning stages of the original plants at the Sellafield site; and has only recently become known and better understood.8 The gyre was not considered when the decision to construct the MOX plant was taken. Without adequately understanding important processes such as the gyre, it is impossible to accurately predict the impacts of radioactive discharges on the Irish Sea. Recent studies indicate that our understanding of the Irish Sea water circulation is incomplete. This has
3 See Chapter 8, para 8.1. 4 The 1992 OSPAR Convention, vol 3(1), Annex 74. 5 A Review of the Oceanography of the Irish Sea, Michael Hartnett, vol 2, Appendix 7. 6 Ibid, p 375 et seq. 7 Ibid, p 383 et seq. 8 Ibid, p 376 et seq. 7 potentially serious implications for the management of hazardous discharges such as radionuclides.9
1.10. The water circulation in the Irish Sea is highly dependent on tidal action. Within the OSPAR region, the Irish Sea is quite unusual in that tides enter it from two directions. This reduces flushing, and consequently, the dilution of pollutants. In other words, once radionuclides are discharged into the Irish Sea, they tend to stay there. Many of the radionuclides discharged from Sellafield end up in the sediments at the bottom of the Irish Sea. The major features of sediment distribution in the Irish Sea largely mirror the distribution of tidal current speeds with gravels where the currents are strongest, and muds where they are weakest.10 According to the Hartnett Report there are three significant mud patches in the Irish Sea.11 These mud patches contain many of the radionuclides including significant quantities of plutonium.12
1.11. According to the Report of Professor Salbu, radionuclides in the Irish Sea are inhomogeneously distributed in the sediments.13 Localised areas with activity concentrations significantly higher than the surroundings (hot spots) are situated close to the Cumbrian coast (Sellafield mudpatch) and an area between Isle of Man and the east coast of Ireland. These hot spots represent major potential sources to radioactive contamination in the future, especially if exposed to heavy storm events increasing the water erosion.14 About 60 % of total discharged plutonium and about 5 % of discharged caesium are contained in subtidal sediments, and radioactive particles are still present in the Sellafield mudpatch. Remobilisation of actinides – Plutonium (Pu-239, 240) and Caesium (Cs-137) from sediments in the eastern Irish Sea is evident, and transport via the North Channel to the North Sea as well as to the western Irish Sea takes place. The Salbu Report also states that contaminated sediments in the Irish Sea will continue to act as a diffuse source for at least the coming century.15
1.12. With regard to radionuclides in seawater, the Salbu Report indicates that the activity concentration of mobile radionuclides in seawater varies according to the discharges. About 1% of the Irish Sea inventory for plutonium is contained in seawater.16 The rest is in the sediments of the Irish Sea, or unaccounted for.
9 Ibid. 10 Ibid, p 379. 11 Ibid. 12 Ibid. 13 Radionuclides discharged into the Irish Sea: sources, distributions and long-term ecosystem behaviour, Professor Brit Salbu, vol 2, Appendix 2, p 122 et seq. 14 Ibid, p 126 et seq. 15 Ibid, p 113.. 16 Ibid, p 127. 8
B. THE IRISH SEA AND ITS IMPORTANCE TO IRELAND
1.13. The impact of radionuclides in the Irish Sea is significant, given the importance of the Irish Sea for Ireland. It is exploited for fishing, transport, recreation, gravel extraction, renewable energy and other uses. The impact on the marine environment of discharges from Sellafield is – or could be – felt on the quality of the waters and on marine life. Lobsters and seaweeds, in particular, are known to contain radioisotopes arising from Sellafield operations.17 The radioactivity arising from Sellafield has the potential to contaminate beaches, and may have an impact on the tourist trade (including recreational fishing and water sports), on fisheries and on marine wildlife. Although there has been some research on the impacts of radionuclides (including at low-levels) on human health, their impacts on wildlife have not been assessed.18
1.14. Ireland has a special concern for its marine environment, not least since a significant proportion of its economy relates to fishing activities in the Irish Sea, some of which take place in close proximity to the Sellafield site and the areas in which international movements of plutonium and other radioactive substances are to occur.19 There are several Irish fishing ports along the Irish Sea. The main ports are at Clogherhead and Howth. Plate 10 sets out the east coast fishing ports of Ireland.
1.15. The formal boundary for fishery control purposes is the median line between Ireland and the United Kingdom. Both States claimed a 200-mile exclusive fishing zone in 1977. Plate 12 sets out the maritime zones. See also Plate 8 which sets out the Search and Rescue zones of responsibility and Plate 9 sets out the Irish pollution response zone.
1.16. The Connolly Report sets out the importance of the fisheries industry to Ireland’s economy. It confirms the importance to Ireland of maintaining the quality of the Irish Sea. In 1998, an estimated 42,600 tonnes of fish species (including shellfisheries) were landed from commercial fishing operations the Irish Sea. These had an estimated landed value of €72 million. These figures exclude aquaculture production. The main commercial fisheries operating in the Irish Sea are the mixed fisheries for cod, whiting, haddock, plaice, sole, herring and Nephrops (Dublin Bay Prawn).20 In 1998, 29,574 tonnes were landed by all international vessels, with an estimated value of €60 million. There are smaller inshore fisheries for whelk, scallops, queens and ray species and in 1998, 13,000 tonnes of these species were landed by all international vessels with an estimated value of €12 million.21
1.17. The main countries involved in the fisheries are Ireland and the UK, with Belgium and France also participating. The Irish trawl fleet targets Nephrops and mixed fisheries for cod, whiting haddock, plaice and sole, mainly in the northwestern Irish Sea. Plate 11 sets out the foreign fishing rights in the 6 to 12 mile zone. It confirms Irelands extensive geographic interest in the waters and the interests of several third states.
1.18. Tourism also makes an important contribution to Ireland’s economy. A considerable portion of that tourism is related to the Irish Sea. Foreign exchange earnings from tourism amount to approximately £3 billion per annum, domestic tourism earnings of
17 The OSPAR Quality Status Report 2000 for the North-East Atlantic, (QSR 2000),Para 6.6. Artificial radioactivity from Sellafield can be detected in almost all flora and fauna from the Irish Sea. 18 QSR 2000, Para 5.3.13 et seq. 19 Irish Sea Fisheries – Dr. Paul Connolly, vol 2, Appendix 1. 20 Ibid, p 19. 21 Ibid. 9 over £1 billion and sustaining close to 150,000 in employment. In recent years the Irish tourism industry has developed in maturity and importance in the Irish economy. A significant factor for this increase has been its pristine environment and landscapes which are well known and widely appreciated. More recently visitors have also travelled to Ireland to avail themselves of the wide range of sporting and recreational facilities including sailing, scuba diving and fishing. Plate 7 is a map of designated bathing areas and marine sports areas on the east coast of the Irish Sea.
RADIOACTIVITY IN THE IRISH SEA
1.19. Today, the Irish Sea is one of the most radioactively polluted seas in the world. According to the OSPAR Quality Status Report 2000 there is an estimated 200 kgs of plutonium in the Irish Sea.22 This has largely resulted from the fact that routine (planned) and accidental discharges of artificial radionuclides into the Irish Sea from Sellafield have occurred since the early 1950s. These discharges increased significantly in the 1970s, resulting in severe pollution that directly affects Ireland, including its waters. The United Kingdom’s Secretary of State for Trade and Industry recently stated in the House of Commons that: ‘In the earlier years of the nuclear programme, the standards of environmental care and regard for long-term safety were not as stringent as those we apply today. Only limited and often superficial records of what the facilities contained were kept. Indeed, the clean-up challenges involved were not recognised as such until well into the 1980s.’23
1.20. There have been many independent scientific assessments of the state of the Irish Sea. As described below they have concluded that as a result of radioactive pollution from Sellafield, the Irish Sea is amongst the most radioactively polluted seas in the world.24
1.21. For the purposes of these proceedings Ireland has commissioned an independent report from Dr Hartmut Nies, on Artificial Radioactivity in the Marine Environment.25 The Nies Report identifies four main sources of artificial radioactivity in the European marine environment of which the most significant are discharges from European nuclear reprocessing plants primarily at Sellafield and La Hague, and the former dumping of radioactive wastes at sea. The Report compares the radioactive pollution of various seas, and with regard to the Irish Sea states that the main radioactive pollution of Sellafield derived radionuclides is found on the eastern part of the Irish Sea. The Report notes also that the influence of the discharges from Sellafield are obvious in the western and southern
22 QSR 2000, Para 4.9.3. See also vol 3(3), Annex 105. Earlier, in 1985, the United Kingdom’s Environment Committee, of the House of Commons noted that as a result of the “discharge of huge volumes of low level liquid waste from the Sellafield pipeline” at least “1/4 of a tonne of plutonium has been deposited in the Irish Sea which has become the most radioactive sea in the world.” According to the minutes, the plutonium and americium in the Irish Sea was found to be at least 15 times the North Atlantic fallout levels: First Report from the Environment Committee, Session 1985-86, Radioactive Waste, House of Commons. 23 House of Commons Hansard Debates for 28 Nov 2001, col. 990 et seq, vol 3(2), Annex 93. 24 See Ireland’s letter in response to questions from the ITLOS and its Annex 1, 21 November 2001, vol 3(1), Annex 42, p 183 at 186, 187. 25 Artificial Radioactivity in the Marine Environment – Burden of Various Seas Regions -Hartmut Nies, vol 2, Appendix 4. 10 part of the Irish Sea, because the levels are significantly above the expected levels of Atlantic surface water.26
1.22. The Nies Report states that sediments conserve historical discharge deposition over long periods and therefore the levels in the seabed reflect a completely different situation than the sea water. In this respect the sediments in the eastern part of the Irish Sea can be considered to contain the highest levels of artificial radioactivity in any of the world’s oceans.27
1.23. In its conclusions, the Nies Report states inter alia that the discharges from reprocessing plants at La Hague and Sellafield have dominated the levels of radionuclides in northern European Seas and the discharges from Sellafield have generally been significantly higher than those from La Hague.28
OSPAR REPORTS
1.24. In 2000, the OSPAR Commission (established under the 1992 OSPAR Convention) prepared its first Quality Status Report for the whole North-East Atlantic (the “QSR 2000”).29 In its overall assessment of radioactive substances, the Report states that: “Nuclear weapons testing, the dumping of wastes in deep water, the foundering of a nuclear submarine, accidents during transportation and discharges from coastal installations have all added to the radionuclides present in the marine environment. The majority of these inputs have been drastically reduced. Remaining inputs are largely due to ongoing releases from nuclear-fuel reprocessing plants. The greatest threats in the future are accidents in the civilian and military nuclear sectors. Releases from dumpsites are considered to pose negligible radiological risk to man, although it is difficult to draw firm conclusions about environmental impacts. The question of radioactive contamination, particularly that arising from the Cap la Hague and Sellafield nuclear-fuel reprocessing plants, is a matter of public concern. This stems from the higher levels of radioactivity discharged in the past and from recent increases in the discharge of certain less radiologically significant radionuclides, particularly technetium-99. There are now more sophisticated detection systems and there have been substantial net reductions in the levels of some more harmful radionuclides over the last decade. Low concentrations of some man-made radionuclides are found in seaweeds, shellfish and wildlife far from the sources. Impacts of radionuclides on wildlife have not been assessed. There are no internationally agreed standards for the assessment of the impact of man-made radionuclides on wildlife.”30
26 Ibid, p 184. 27 Ibid, p 188. 28 Ibid, p 187. 29 The OSPAR Report sets out details of the Geography; Hydrography and Climate; Human Activities; Chemistry; Biology and an overall assessment of the entire region covered by it. This is followed by specific reports on each of the 5 OSPAR Regions. The Report is available at http://www.ospar.org/eng/html/welcome.html. 30 QSR 2000, Para 6.6 (emphasis added). 11
1.25. The 2000 OSPAR Quality Status Report discusses the effectiveness of existing measures including the 1998 OSPAR Strategy with regard to Radioactive Substances.31 That Strategy sets out, inter alia, the objective of “prevent[ing] pollution of the maritime area from ionising radiation through progressive and substantial reductions of discharges, emissions and losses of radioactive substances, with the ultimate aim of concentrations in the environment near background values for naturally occurring radioactive substances and close to zero for artificial radioactive substances.” It sets a time frame of “ensur[ing] that discharges, emissions and losses of radioactive substances are reduced to levels where the additional concentrations in the marine environment above historic levels, resulting from such discharges, emissions and losses, are close to zero by 2020”.
1.26. The OSPAR Quality Status Report 2000 for the North-East Atlantic makes several relevant observations. It confirms the presence of radionuclides in measurable and significant quantities. On seawater, it states inter alia that: “Traces of man-made radionuclides are found with a decreasing gradient with increasing distance from the reprocessing facility. The level of caesium-137 ranges from approximately 500 Bq/m3 in the vicinity of the outlets of reprocessing plants down to 2 Bq/m3 in the open ocean. The trend has been steadily downward in the Irish Sea since 1988, however the signal is still present in the Irish Sea and as far afield as the Norwegian west coast and in the Arctic. At Sellafield, releases of the actinides and ruthenium have decreased, but there were consequential increases of the less radiologically significant technetium-99 in 1994 and 1995 and the level of technetium-99 in the Irish Sea close to Sellafield outfalls were approximately 350 Bq/m3. This has resulted in the rapid spread and detection of technetium-99 in the North Sea and along the Norwegian west coast at very low concentrations.”32
1.27. On the issue of sediments, the OSPAR Quality Status Report concludes: “Concentrations of artificial and natural radionuclides in sediments are in generally low except near outlets from the reprocessing industry and from phosphate fertiliser production. […] The accumulation of sediments in both sub- tidal and inter-tidal areas of the Irish Sea act as a long-term sink for plutonium and other long-lived particle reactive elements. These sediments contain substantial amounts of artificial radionuclides, particularly caesium, plutonium and americium, the redistribution of which is now being observed in the Irish Sea. Sub-tidal sediments contain the highest proportion of the estimated inventory of plutonium in the Irish Sea (c. 200 kg in the total sediment of the area). It is however the inter-tidal sediment that is more critical in terms of human contact”.33
1.28. On human exposure it states inter alia that: “With regard to individual exposure from artificial radionuclides, generally caesium-137 has by far the greatest significance. […] For areas in the proximity of discharges, other radionuclides such as technetium-99, plutonium-239,
31 The 1998 OSPAR Strategy with regard to Radioactive Substances, vol 3(1), Annex 75. See also Chapter 9, para 9.50. 32 QSR 2000, Para 4.9.2. 33 QSR 2000, Para 4.9.3. 12
plutonium-240 and americium-241 may be a more significant contribution to the doses to the local critical group.”34
1.29. In relation to the ecological impacts of radioactivity it is apparent that there exists very great uncertainty, since this matter has been the subject of very little study. As the 2000 OSPAR QSR Report states:
“the interest in the behaviour of radionuclides in the marine environment has, until now, been driven by the objective of protecting human health from ionising radiation through the food chain. While the system of human radiological protection has been well developed through the adoption of internationally recognised guidelines and standards, there are currently no internationally accepted radiological criteria for the protection of marine flora and fauna. The assumption has been that man is the most radiosensitive organism and that if man is adequately protected, then other living things are also likely to be sufficiently protected. The International Commission on Radiological Protection states that: ‘the standard of environmental control needed to protect man to the degree currently thought desirable will ensure that other species are not put at risk. Occasionally, individual members of non-human species might be harmed, but not to the extent of endangering whole species or creating imbalance between species’ (ICRP, 1991).”35
1.30. More recently, however, there has been an increased recognition of the potential harmful impacts of radiological releases on the environment itself, as opposed to the consequential impacts on human health.36 In 1994 the OSPAR Convention parties agreed that more emphasis should be put on assessing biological and ecological effects in the marine environment (including the vulnerability of marine organisms and communities) arising from existing and foreseen future discharges of radioactive substances (PARCOM Decision 94/8). There is now a growing recognition that protection of the environment merits attention in its own right. The International Atomic Energy Agency acknowledges that:
“there is a growing need to examine methods to explicitly address the protection of the environment from radiation. The concept of sustainable development places environmental protection on an equal footing with human protection, on the basis that it is necessary first to protect the environment in order to protect human populations.” (IAEA, 1999).37
The 1998 OSPAR Strategy with Regard to Radioactive Substances reflects the shift in the approach, concerned as it primarily is with reducing concentrations of radionuclides in the marine environment and hence protecting the marine environment itself; the issue of doses to man are no longer the primary consideration. The Strategy requires the OSPAR Commission to undertake the development of environmental quality criteria for protection of the marine environment from adverse effects of radioactive substances and to report on progress by 2003.38 Notwithstanding these developments, the United Kingdom has – in
34 QSR 2000, Para 4.9.5. 35 QSR 2000, Para 5.3.13 et seq (emphasis added). 36 For this view, as expressed by the UK’s National Radiological Protection Board, see Chapter 9, para 9.66. 37 Cf. QSR 2000, Para 5.3.13 et seq. 38 Ibid. 13
Irelands view – authorised the MOX plant without proper – if any – consideration of the ecological impacts of discharges from the MOX, THORP and other plants at Sellafield which will arise as a result of the MOX authorisation.
1.31. In addition to the main OSPAR QSR Report, in 2000 the OSPAR Commission prepared five regional Quality Status Reports. The western part of the United Kingdom, (including Northern Ireland) and Ireland and the Irish Sea lie within OSPAR Region III. The QSR 2000 for Region III confirms that over the last 40 years inputs of artificial radionuclides have been dominated by discharges from the nuclear reprocessing at Sellafield.39 In analysing trends in discharges from Sellafield, this Report notes that:
• Discharges of various radionuclides have increased as a result of the starting of reprocessing at THORP;
• The subtidal sediments of the Irish Sea contain substantial amounts (ten to hundreds of kilograms) of artificial radionuclides, particularly caesium, plutonium and americium, and that the estimated total quantity of plutonium in sediments is about 200 Kg; and
• As the concentrations in the sediments slowly accumulate, they act as a long- term sink for plutonium and other long-lived and particle reactive radionuclides.40
1.32. With respect to levels of radionuclides in biota, the OSPAR QSR Report confirms the presence of radionuclides in biota (including seaweed, fish and shellfish) in areas of Irish sovereignty and over which Ireland exercises sovereign rights and recognises that their presence results from discharges at Sellafield. It also indicates uncertainty as to trends in levels of concentrations, including recent increases in concentrations of certain levels of radionuclides. The OSPAR Report states:
“Concentrations of caesium-137 in bladder wrack [a seaweed] diminish with increasing distance from Sellafield and have fallen in response to reductions in the discharge. On the east coast of Ireland they decreased by approximately 20% per annum during the period 1983 to 1986, and although the downward trend continues, it is now less pronounced. […]Concentrations of technetium-99 in seaweeds and the edible tissues of lobsters rose rapidly in response to increased discharges after 1994. As with caesium, the concentrations decrease with increasing distance from Sellafield. Monitoring of seaweeds around Ireland during 1997 showed concentrations of technetium-99 at sites on the east coast to be almost 30 times higher than the pre 1994 level. […]In general, the concentrations of plutonium and americium are higher in shellfish than in fish. The most recent monitoring shows that their concentrations in fish and shellfish from routinely monitored sites in the Irish Sea are relatively stable.”41
1.33. In its Overall Assessment, the OSPAR Report further recognises and confirms, “the radioactive contamination, particularly that arising from the Sellafield nuclear fuel
39 The OSPAR Quality Status Report 2000: Region III – Celtic Seas, (Extracts), Paras 4.8 et seq, vol 3(2), Annex 85. 40 Ibid, para 4.8.6. 41 Ibid, para 4.8.7. 14 reprocessing plant, is a matter of concern to the public.”42 None of these conclusions or statements appear to have been challenged by the United Kingdom. A further point of note in the Quality Status Report for Region III is the confirmation that there are a number of important subjects in relation to which “… [our] understanding is relatively poor.” This includes information on the passage of ships carrying cargoes of hazardous material, and the difficulty of establishing trends in contaminant concentrations.43 In its conclusions, the OSPAR Region III Report recognises that the west coast of Ireland is relatively unimpacted by the contamination arising from within the region, indicating (in comparative terms) the degree of impact on the east coast of Ireland which is closest to Sellafield.44
OTHER REPORTS
1.34. Other reports confirm the impact of radionuclide discharges from Sellafield on the Irish Sea. One recent report is the Report on “Possible Toxic Effects from the Nuclear Reprocessing Plants at Sellafield (UK) and Cap de La Hague (France)” which was commissioned by the European Parliament’s Directory General for Research, under the auspices of its Panel on Scientific and Technological Office Assessment (STOA) (“2001 STOA Report”).45 It was prepared by 10 independent experts and published by the European Parliament in November 2001. The General Conclusions set out in the Executive Summary include: • “Marine discharges at Sellafield have led to significant concentrations of radionuclides in foodstuffs, sediments and biota”; • “The deposition of plutonium within 20km of Sellafield attributable to aerial emissions has been estimated at 16-280 GBq (billion becquerels), that is two or three times the plutonium fallout from all atmospheric nuclear weapons testing”; • “It has been estimated that over 40,000 TBq (trillion becquerels) of caesium- 137, 113,000 TBq of beta emitters and 1600 TBq of alpha emitters have been discharged into the Irish Sea since the inception of reprocessing at Sellafield” (which means that “between 250 and 500 kilograms of plutonium from Sellafield is now absorbed on sediments on the bed of the Irish Sea”); • “In the UK, about 90% of nuclide emissions and discharges from the UK nuclear programme result from reprocessing activities” (at Sellafield).46
According to the 2001 STOA Report, the reprocessing of spent nuclear fuel at Sellafield and at La Hague results in the largest man-made release of radioactivity into the environment anywhere in the world.
1.35. Some of the conclusions of the STOA Report have been challenged, including by the United Kingdom.47 Ireland notes in this respect that in March 2002 the EC
42 QSR 2000, para 6.6. 43 Ibid, para 6.3. 44 supra n 38, p 63. See also Plate 14 which shows the differences in the levels of radionuclide concentrations between the east and west coast of Ireland. 45 Possible Toxic Effects from the Nuclear Reprocessing Plants at Sellafield (UK) and Cap de La Hague (France), WISE-Paris, August 2001, vol 3(3), Annex 105. 46 Ibid, p 140-149. 15
Commissioner for the Environment told the European Parliament Assembly that the analysis of the discharge data of the Report was “consistent” with the data collected by the Commission.48
CONCLUSIONS
1.36. The Reports and studies identified above confirm that nuclear reprocessing at Sellafield generates large quantities of radioactive waste. A significant part of this radioactive waste is deliberately discharged, either directly or indirectly into the Irish Sea. These discharges have led to significant concentrations of radionuclides in the waters, sediments and biota of the Irish Sea. As described in Chapters 6 and 9, as a consequence of increased concern about the current situation the United Kingdom, Ireland and other parties to the OSPAR Convention undertook commitments to significantly and progressively reduce discharges of radionuclides and to reduce concentrations in the Irish Sea to “close to zero” by 2020.49
1.37. The presence of nuclear activities at Sellafield, including in particular the storage of large quantities of radioactive waste, also gives rise to a significant risk of unplanned releases of radioactive materials, whether in a liquid or aerial form, which would pose a significant threat to the Irish Sea. Ireland considers that the current state of knowledge makes it difficult to prepare accurate evaluations of risk arising from such storage. Nevertheless, it is clear that the consequences for human health and the terrestrial and marine environment of an accidental atmospheric or other release from the high-level radioactive waste tanks at Sellafield would be far greater than the consequences of the Chernobyl accident in April 1986. Concerns about accidental releases are further compounded by renewed concerns about terrorist attacks on the Sellafield site or on international transports associated with transports to and from the Sellafield site, including the MOX plant. This aspect is addressed in more detail in Chapter 8.
1.38. In conclusion, the present situation with respect to radioactive contamination of the Irish Sea may be summarised as follows: • the Irish Sea has become significantly polluted by radionuclides; • such pollution arises principally as a result of activities at Sellafield which commenced in the 1950’s, which have been authorised by the United Kingdom; • this pollution has caused the Irish Sea to be considered as the most radioactively-contaminated semi-enclosed sea in the world; • such pollution has an impact on living resources and marine life, marine activities, and could have an impact on human health;
47 See for example the Verbatim Record of the proceedings of ITLOS, 20 November 2001, 9.30 a.m,,p 5, line 46 et seq, where the Attorney General of the UK stated inter alia: “It is a report, apparently leaked to the press, that has been widely criticised as unscientific. It has led, according to those reports, the Chairman of the very Committee, STOA, to say that the behaviour of WISE has not been “in line with the long standing tradition of STOA which always endeavoured to associate its work with the highest scientific and ethical standards”. 48 See vol 3(3), Annex 115. 49 See Chapter 9, paras 9.42-51 et seq. 16
• whilst discharges of radioactive substances from the Sellafield site have generally decreased since the 1970’s the discharge of some radionuclides, including from the THORP plant, have increased in the mid-1990’s; • the impact of radioactive pollution on the marine environment has not been well-studied and is therefore generally unknown; • there is recognised concern about the radioactive pollution of the Irish Sea, as a result of which States have undertaken to significantly and progressively reduce discharges of radioactive substances with the object of reducing concentrations of artificial radionuclides in the Irish Sea to “close to zero” by 2020.
C. THE SELLAFIELD SITE (MOX, THORP AND RELATED FACILITIES)
1.39. It is against this background that the Sellafield site assumes a central importance. Sellafield is a 480-acre nuclear site located in Cumbria, in the North West of England. It is in very close proximity to the Irish Sea. The Sellafield site is approximately 112 miles from the Irish coast at its closest point (at Clogher Head). See Plate 3 for the location of Sellafield in the United Kingdom and Plate 4 for an aerial photograph of the Sellafield site.
1.40. Sellafield was a former Royal Ordnance factory site where work on the plutonium production piles (i.e. reactors) for defence purposes began in September 1947. At that time the site was called Windscale, after the bluff overlooking the River Calder on the seaward side of the site. The first plutonium production pile began to operate in October 1950. Pile No.2 commenced operation in June 1951. In January 1952 the first irradiated fuel rods were taken out of the piles and fed into a reprocessing plant.50 This marked the commencement of nuclear reprocessing at Sellafield, and the resulting direct discharges of radioactive substances into the Irish Sea from Sellafield, by way of pipeline and aerial emissions.51 This was not the only source of radioactive pollution of the Irish Sea; between the late 1940s and 1982 much of Britain’s low-level radioactive waste was disposed of in the English Channel and Atlantic Ocean.
1.41. The two plutonium piles did not operate for long. In October 1957, seven years after it was built, Pile No. 1 caught fire and caused a plume of radiation. It is still not known precisely what caused the fire, which went on for two days: the fire is generally assumed to have been caused by heating due to the release of Wigner energy into the graphite. It was the first major accident in the history of nuclear power, and remains amongst the most significant (with Chernobyl and Three Mile Island). No one was evacuated or told to stay indoors during the 1957 Sellafield (Windscale) fire, and there was little restriction or safety instruction of any kind, beyond a somewhat belated decision to destroy locally produced milk after it was found to be contaminated. The effects of radiation from released radioisotopes and the degree of contamination are still not known
50 For a brief history of the Sellafield site and its activities see Harold Bolter, Inside Sellafield, Quartet Books, 1996. 51 “Reprocessing” involves a chemical separation process by which plutonium and uranium are separated from fission products. It is described more fully in Liquid and Aerial Discharges from the Sellafield Mixed Oxide Plant, Dr. Frank Barnaby, vol 2, Appendix 8. 17 with any degree of certainty. Hence the impact on human health and the environment – in the United Kingdom and Ireland – remains unknown as the whole incident was covered up and little information made publicly available (The best estimate is that the accident gave a collective dose of 2,000 man-sieverts, producing about 100 fatal cancers).52 Moreover, the authorities in the United Kingdom are still not certain of the total amount of radioactivity that was released during the fire. Over the years the estimates have varied between some 800 MBq and 2 GBq. The 1957 Windscale fire was a very serious event by any normal standards of industrial safety.53
1.42. The Windscale fire did not deter the United Kingdom from pressing ahead with the development of civil nuclear power. In October 1956 Britain’s first commercial power reactor, Calder Hall on the Sellafield site, started generating electricity. It was fuelled by natural uranium metal encased in cladding made from magnesium oxide (and therefore referred to as a “Magnox” plant). Calder Hall was intended primarily to produce plutonium for the weapons programme and remains Britain’s longest operating nuclear power plant. In June 2002 BNFL announced that the Plant will close in March 2003.54
1.43. Over the next twenty years after 1956, nine further Magnox type reactor plants, 14 Advanced Gas Cooled Reactors (AGRs) and one Pressurised Water Reactor (PWR) were built in the United Kingdom. Planning for a small prototype AGR fuelled by using enriched uranium began within a year of the opening of Calder Hall. Sellafield was once again chosen as the site where the new reactor was to be tested. The Windscale AGR (WAGR) began to supply electricity to the national grid in 1963. It was shut down in 1982.
1.44. In the 1970’s responsibility for nuclear weapons passed from the United Kingdom Atomic Energy Authority (UKAEA) to the Ministry of Defence, leaving UKAEA to focus on the civilian nuclear industry. At this time, British Nuclear Fuels Limited (BNFL) was formed by the United Kingdom to take responsibility for nuclear fuel manufacture and for the management of spent nuclear fuel and wastes. BNFL reprocesses both British spent nuclear fuel and spent fuel from overseas. The activities carried out by BNFL at the Sellafield site can be broadly divided into three categories: • Operational activities: including reprocessing of spent nuclear fuel in the Magnox and Thermal Oxide Reprocessing Plant (THORP) plants, the operation of the Calder Hall nuclear power station and MOX manufacture and • Waste management and clean-up activities: including the management of historical accumulations of radioactive wastes and the clean up and decommissioning of plants that have ceased operation. In this regard it is important to mention the United Kingdom’s recent White Paper on “Managing the Nuclear Legacy”, which sets out the United Kingdom’s latest
52 For a critical account of the way the fire was handled by the Sellafield management see Harold Bolter, Inside Sellafield, Quartet Books, 1996, pp39–46. 53 As recently as 2001, the Pile was still undergoing decommissioning. In November 2001, the decommissioning had to be halted after an Inspector of the Nuclear Installations Inspectorate (NII) expressed “growing concerns” about the ability to manage the decommissioning of the Pile. See vol 3(3), Annex 116, p 358. The NII is responsible for regulating the nuclear radiological and industrial safety of Nuclear Installations in the United Kingdom, and is a responsible to the Health and Safety Executive (HSE) which is the statutory body responsible for the enforcement of work related health and safety law and the licensing authority for Nuclear Installations. 54 At that time Reactor 1 was already closed for routine maintenance while Reactors 2,3 and 4 had been shut down following a safety related incident at Chapelcross, which is of similar design. Reactor 1 has since gone back into operation. It is believed that the other three reactors will remain closed. 18
strategy for clean up (“the 2002 White Paper”). Its other implications are spelt out in detail in the following chapters.55 See also paragraph 1.62 below. • Transport activities, including the transport of spent nuclear fuel to Sellafield for reprocessing and the transport of MOX and high-level wastes back to countries of origin. Each of these categories raises concerns for Ireland and are relevant to the dispute.
OPERATIONAL ACTIVITIES
1.45. Like the first nuclear power reactor, the first reprocessing plant in the United Kingdom was built at Sellafield for defence purposes, to produce plutonium for use in British nuclear weapons. A military reprocessing plant came into operation in 1952. This plant was shut down after 12 years and replaced by a new Magnox plant in 1964, designed to reprocess civil, as well as military, nuclear fuel. It was also built at Sellafield.
1.46. In 1969 another reprocessing plant – the Head End plant was completed. The Head End plant, which reprocessed oxide fuel, operated for only four years, reprocessing some 90 tonnes of spent oxide fuel. It was shut down in September 1973 after a release of radioactivity into the operating area of the plant contaminated about thirty-five workers. As a result, BNFL was left with some 350 tonnes of overseas fuel, which it was contractually committed to reprocess.
1.47. Notwithstanding the closure of the Head End plant, BNFL was determined to continue to reprocess oxide fuel, which it considered likely to be a profitable activity. The original plan to build a Thermal Oxide Reprocessing Plant (THORP) emerged in the mid- 1970s. Initially there were plans to build two plants, one dedicated to reprocessing British fuel and one for overseas fuel. However, by 1975 a single THORP plant was envisaged.
1.48. In June 1976, BNFL applied to the Cumbria County Council for planning permission to build the THORP plant. In November the Council referred the matter to the Department of the Environment. In December 1976, BNFL was accused of covering up a leak of radioactive water from an old concrete silo (B38) at the Sellafield site. As a result, BNFL had to resubmit its THORP application, which it did in March 1977. A Public Inquiry was opened in June 1977. The Windscale Inquiry (as it has been called) lasted 100 days and closed in November 1977. The Inquiry inspector recommended approval for the construction of THORP in January 1978. THORP was not then subject to any environmental impact assessment, and it has not since been subject to any environmental impact assessment.56 It was the subject of an Opinion from the European Commission as required by Article 37 of EURATOM.57 But this Opinion was concerned only with impacts on human health and not impacts on the marine environment. Moreover, the data presented to the European Commission has not been made available to Ireland.
55 See Managing the Nuclear Legacy, United Kingdom, July 2002, vol 3(2), Annex 94. The White Paper sets out inter alia the role of the new Liabilities Management Authority (LMA), its relationship with the government and its implications for BNFL. It also details the funding arrangements and the regulatory framework and radioactive waste management. 56 See Chapter 7, para 7.62 et seq. See also the Review of BNFL’s Environmental Statement for the Sellafield MOX Plant, Mr. William Sheate, vol 2, Appendix 6. 57 EURATOM Commission Opinion on THORP, 30 April 1992, vol 3(3), Annex 122. 19
1.49. Over the next decade, during the course of the design and construction programme for THORP, there were substantial changes to the terms in which THORP had been described at the Windscale Inquiry and subsequently built, costed and marketed. For example, THORP’s capacity was initially to be utilised by domestic and overseas reprocessing on a fifty-fifty basis. This balance was significantly eroded, with overseas fuel now accounting for 70% of the loading of the plant. Other parameters had also changed since the initial approval. Despite construction being almost completed in September 1992, commissioning was delayed as a further economic reappraisal of the THORP project was carried out.58
1.50. THORP finally began operating in 1994, reprocessing spent nuclear fuel elements and separating plutonium and uranium from fission products. THORP has not, however, lived up to its operational or economic expectations. It is now running two years late, as a result of which costs have increased significantly.59 Moreover, the market for reprocessing of spent nuclear fuel has been significantly smaller than was expected, as result of which THORP is thought to have received no new reprocessing contracts since 1997.60 Furthermore, its contracts with British Energy (the main UK based generator of nuclear energy) have turned out to be far more expensive than the alternative of long-term storage, and British Energy has stated that it would prefer to terminate all its reprocessing contracts with THORP.61 The general expectation is that on its own THORP would obtain no new contracts and would close down in or around 2010, once its existing contractual obligations were completed.62 It is against this background that the MOX plant assumes particular significance, since all the plutonium dioxide which is to be used at the MOX plant has either already been reprocessed or will be produced through reprocessing spent nuclear fuel at the THORP plant.63
1.51. The new MOX plant at Sellafield is premised on the assumption that any overseas customers (from Japan, Germany, Switzerland, Sweden and The Netherlands) who sent or will send their spent reactor fuel to THORP for reprocessing may want the separated plutonium from the spent fuel to be returned to them in the form of MOX. And it is expected that all contracts for the production of MOX fuel will also include a commitment to reprocess the spent fuel through the THORP plant.64 In this way BNFL hopes that the MOX plant will increase the operational life of the THORP plant beyond its existing
58 Interestingly, Harold Bolter, the longest serving Director of BNFL states in his book that “[I]n summary many of the assumptions fed by BNFL into the Whitehall appraisal of THORP have turned out to be wrong, making the whole exercise something of a charade.” Harold Bolter, Inside Sellafield, Quartet Books, 1996, p 70 et seq at p 87. 59 See Report on Commercial Confidentiality and the SMP Plant, Mr. G. Mackerron, vol 2, Appendix 10. 60 Ibid, para 1.3.25. 61 See the second Mackerron Report, vol 2, Appendix 11, at p 528. 62 See Report on Commercial Confidentiality and the SMP Plant, Mr. G. Mackerron, vol 2, Appendix 10 and Dr. Barnaby’s Report, vol 2, Appendix 8. See also the Radioactive Waste Management Advisory Committee’s [RWMAC] Advice, vol 3(2), Annex 98, p 518 which states: “The lifetime of THORP reprocessing is dictated by BNFL’s ability to win commercial contrast for reprocessing […]. RWMAC’s analysis suggest that THORP’s currently contracted work could be completed by 2010.” 63 See Report on Commercial Confidentiality and the SMP Plant, Mr. G. Mackerron, vol 2, Appendix 10 also Liquid and Aerial Discharges from the Sellafield Mixed Oxide Plant, Dr. Frank Barnaby, vol 2, Appendix 8. 64 Ibid. 20 contracts. This is explicitly recognised in BNFL’s economic case for the the MOX plant.65 This explains why Ireland considers that the MOX and THORP plants – and their impacts on the environment – are properly to be treated in an integral way and as part of a single project. The environmental impacts of the THORP plant are an integral part of the consequences of the authorisation of the MOX plant. The THORP plant’s environmental impacts are described in Chapter 3.
1.52. Along with reprocessing spent nuclear fuel, the production of Mixed Oxide Fuel (MOX) at Sellafield began over 30 years ago, originally (and mainly) for the Prototype Fast Reactor at Dounreay. In 1993 a fuel fabrication facility – known as the MOX Demonstration Facility (MDF) – began producing MOX fuel for Light Water Reactors.66 MDF was a pilot (demonstration) plant, with a nominal production capacity of up to 8 tonnes of MOX fuel per year. It was shut down in 1999 and will not produce MOX fuel for use in reactors. It was MOX fuel produced at the MDF that that gave rise to the falsification scandal in 1999.67
RADIOACTIVE WASTE MANAGEMENT
1.53. The nuclear activities at Sellafield from the 1950s have given rise to a very large and growing stockpile of nuclear waste. The United Kingdom’s policy on long term and secure storage and disposal of intermediate- and high-level nuclear waste remains unresolved, and is growing more acute each year.68 The most significant discharges come from BNFL’s spent fuel element storage ponds and the reprocessing plants, which handle the United Kingdom’s irradiated Magnox fuel, spent fuel from the AGRs and the PWR and spent fuel from overseas. National Low-level solid waste, whether military or civil, is stored at Drigg, a waste repository operated by BNFL, down the coast from Sellafield. Civil intermediate level solid waste is largely stored at Sellafield awaiting a decision on a national storage facility. Both civil and military high level solid waste is generally moved to Sellafield for temporary storage. There are major problems with the long-term storage and disposal of intermediate and high-level waste. Since this waste is highly dangerous and very long-lived, any storage or permanent disposal facility has to be very secure and safe over a long period.
1.54. High Level Waste (HLW) is a heat generating waste, that has accumulated at Sellafield since the early 1950’s, primarily from the reprocessing of “spent nuclear fuel.” The temperature in HLWs may rise significantly, so this factor has to be considered when designing storage and disposal facilities. Intermediate Level Wastes (ILW) arise mainly from the reprocessing of spent nuclear fuel and from general operations and maintenance of radioactive plants. Low Level Wastes (LLW) arise principally as lightly contaminated miscellaneous scrap.
1.55. The developing problem of solid radioactive waste disposal was first highlighted by the 1976 Report of the Royal Commission on Environmental Pollution, which advised
65 See vol 3(3), Annex 104, p 85. 66 For an account of how Mixed Oxide Fuel is manufactured see Chapter 2.See also Liquid and Aerial Discharges from the Sellafield Mixed Oxide Plant, Dr. Frank Barnaby, vol 2, Appendix 8, p 402. 67 See chapter 2, paras 2. 78 et seq. 68 Disposal in the context of solid waste means the emplacement of waste without intent to retrieve at a later date. Retrieval maybe possible, but if that is intended it amounts to storage. Disposal also includes the release of airborne and liquid wastes into the environment. 21 against expanding nuclear power until a safe method had been found to contain radioactive wastes. The Commission called for research on the solidification of High Level Waste (HLW). Fifteen years later, in 1991, this resulted in the setting up of the Windscale Vitrification Plant at Sellafield.69 The Report also recommended research into the disposal of solidified HLW. Following the Commission’s advice, responsibility for dealing with radioactive waste was transferred from the Department of Energy to the Department of the Environment.
1.56. Before the disposal of operational and stored liquid wastes, they are treated at the Enhanced Actinide Removal Plant (EARP). Chemical treatment and ultra-filtration at the Plant remove alpha activity and some beta activity and the treated effluent is discharged to sea. Similarly, the Site Ion Exchange Effluent Plant (SIXEP), set up in the mid 1980’s, also treats liquid wastes. An ion-exchange method is used to remove mainly caesium-137 and strontium-90 following which the liquid effluents are discharged in to the sea. The Segregated Effluent Treatment Plant (SETP) deals only with low active liquid wastes from THORP and B-205 before discharging them into the sea. Improving the efficiency of these plants could reduce the levels of radioactivity in discharges.
1.57. In 1982, the United Kingdom established United Kingdom Nirex Ltd. (“UK Nirex”) to provide radioactive waste disposal services for Low Level Waste (LLW) and Intermediate Level Waste (ILW). In 1989, Nirex was asked to investigate a deep waste repository for all types of LLW and ILW. In 1989, UK Nirex decided to focus on sites at Sellafield and Dounreay. However in 1994 Nirex was denied planning permission by the local authority for an underground laboratory to investigate the suitability of a potential deep disposal site at Sellafield, next to the Irish Sea. In 1997, following a Planning Inquiry at which Ireland made submissions, this decision was upheld in a Report of a Planning Inspector and by decision of the (then) UK Secretary of State for the Environment.70 The decision to refuse permission was based inter alia on the fact that the environmental impact assessment prepared by UK Nirex was inadequate, that alternative options (and sites) had not been properly explored, and on the potential impacts of the project on the marine environment of the Irish Sea, having regard to the requirements of the precautionary principle and the recognition of Ireland’s legitimate interests.71 It was also based on the conclusion that the proposed laboratory was so closely connected to the Deep Waste Repository itself that the two formed a single project. The UK Nirex proposal therefore bears a striking similarity to the issues raised by the MOX plant.72
1.58. Following the collapse of the proposal by UK Nirex, a House of Lords Select Committee on Science and Technology investigated the management of nuclear waste. The Committee reported in March 1999: its main recommendation was that the United Kingdom should “seek to build public consensus before attempting to implement its chosen policy”.73 In response the United Kingdom government stated that it would publish a “detailed and wide-ranging consultation paper” in 2000. In September 2001, the United Kingdom government published its consultation paper on “Managing Radioactive Waste
69 In this plant liquid waste is mixed with molten glass and allowed to cool inside a stainless steel container, forming a solid block. This process is called vitrification. 70 Extracts of the Inspector’s Report and a discussion regarding the Decision appear in Ibid. 71 See also the United Kingdom’s decision letter regarding Nirex, 17 March 1997, vol 3(3), Annex 118. 72 See Sheate Report, vol 2, Appendix 6. 73 See http://www.parliament.the-stationery-office.co.uk/pa/ld199697/ldinfo/ld16sctk/ld16sctk.htm. 22
Safely” which aimed to start a nationwide debate on how to manage solid radioactive waste.74
1.59. Ireland believes that currently the HAST (radioactive waste storage) tanks at Sellafield contain almost 1600 cubic metres of extremely dangerous liquid high-level waste. In addition Ireland believes that the ILW is not stored in “safe passive form”. The United Kingdom Government’s Radioactive Waste Management Advisory Committee (RWMAC) has called this “unsatisfactory”.75
1.60. It is not in dispute that the authorisation of the MOX plant will generate further – and very significant – quantities of solid, aerial and liquid wastes, both from the MOX and THORP plants. These will have to be added to the existing and growing stockpile at Sellafield. These consequences have not been the subject of any environmental impact assessment.76
TRANSPORT ACTIVITIES
1.61. Besides the operational and waste management activities carried out by BNFL at Sellafield, the company is also responsible for transporting radioactive material. Nuclear materials have in the past entered and left the United Kingdom by sea, air and land. As no nuclear reactors in the United Kingdom currently use MOX fuel, any MOX fuel produced at the MOX Plant will have to be exported. There will thus be an increasing traffic in nuclear materials by sea, air and land. Ireland understands that a significant number (if not all) of the dispatches by sea will be through the Irish Sea. Pacific Nuclear Transport Ltd. (PNTL), a subsidiary of BNFL operates ships capable of carrying all categories of nuclear material. However, the United Kingdom has refused to provide Ireland with any information on such transports.77
TRANSFER OF MOX AND THORP FROM BNFL TO THE NEW LIABILITIES MANAGEMENT AUTHORITY
1.62. All the liabilities and assets at Sellafield including the MOX and THORP plants, are about to be transferred from BNFL back into full public ownership. In July 2002, the United Kingdom published a White Paper on “Managing the Nuclear Legacy.”78 Its stated aim is the management of the nuclear waste legacy. Earlier, in November 2001, the Secretary of State for Trade and Industry, United Kingdom had announced the setting up of a new Liabilities Management Authority (LMA).79 The White Paper sets out the role of the LMA which is to be responsible to the United Kingdom Government with a specific remit to “ensure the nuclear legacy is cleaned up safely, securely, cost effectively and in ways which protect the environment for the benefit of current and future generations.” Chapters 3 and 4 of the White Paper detail the role of the LMA and its operations and
74 See Chapter 3 and 9 below. 75 RWMAC Submissions, 27 June 2002, vol 3(2), Annex 100. See also Chapters 3 and 9. 76 See Sheate Report, vol 2, Appendix 6 and Review of BNFL’s Environmental Statement for the Sellafield MOX Plant, vol 2, Appendix 6. 77 On the issue of transports of nuclear materials through the Irish Sea, see Chapter 8. 78 See vol 3(2), Annex 94. 79 House of Commons Hansard Debates for 28 Nov 2001, col. 990 et seq at vol 3(2), Annex 93. 23
Chapter 5 deals with the implications on BNFL. The White Paper recognises that the clean up cost will be in excess of £40 Billion and will take “scores of years.”80
1.63. The LMA is to take over the financial and legal responsibility for various nuclear sites including Sellafield. It is to be established by statute as a non-departmental public body. The statute will also set out its functions and duties. The creation of the LMA has major implications for BNFL, and will involve a significant restructuring of the company. The LMA will take on financial and legal responsibility for the Sellafield site, all the assets and associated liabilities, which include THORP and the MOX plant, as well as nuclear wastes and materials at the site. With regard to THORP and the new MOX plant, the White Paper states that any new contracts involving the THORP and MOX plants will require the prior approval of the Secretary of State. The Paper states that any new proposal will not only be looked at in the circumstances of the specific case, but also in the light of the Bergen Declaration.81 The White Paper states that approval for new contracts would only be given if the contracts were consistent with the clean up plans for Sellafield, and were expected to make a positive return to the United Kingdom tax-payer after allowing for certain costs including any additional clean up cost and consistent with the United Kingdom’s environmental objectives and international obligations.82 The White Paper recognises the importance of waste management as well as the fact that current uncertainties about future policy requirements need to be resolved.83
D. THE GENERAL CONCERNS OF THE IRISH PEOPLE, THE IRISH GOVERNMENT AND THIRD GOVERNMENTS
1.64. Ireland has been concerned about nuclear activities at Sellafield since they began in the late 1940’s. Ireland’s concern has been acute since the Windscale fire in 1957. Ireland has consistently protested against all radioactive discharges, against the use of the Sellafield site for nuclear activities, and against the use of the Irish Sea as a depositary for the United Kingdom’s nuclear waste. As a neighbouring coastal State, Ireland is deeply concerned at the radioactive pollution of its waters, including those over which it exercises sovereign rights. Ireland’s concerns are shared by many of the coastal States in the region.
1.65. The United Kingdom Government has in the past recognised that Ireland has a “legitimate interest” in the activities carried out at Sellafield, in particular because of the potential impacts of radioactive emissions from the Sellafield facility into the Irish Sea. In 1997, following the planning inquiry relating to the proposal by UK Nirex, the United Kingdom declined to authorise an application by UK Nirex to construct an experimental deep waste repository for the storage of nuclear waste under the Irish Sea. In taking that decision, the then Secretary of State, stated that he: “notes and agrees with the [Planning Inspector’s conclusions (IR 3C.18 to 3C.23) regarding the concerns of the Irish Government …. and agrees that the people of Ireland have a legitimate interest in any proposal for a repository for radioactive
80 See also the 2002 White Paper, vol 3(2), Annex 94, Figure 2, p 297. 81 The Bergen Ministerial Declaration, March 2002, at vol 3(2), Annex 86 inter alia encourages North Sea states to evaluate the options for spent fuel management after current reprocessing contracts come to an end. 82 See the 2002 White Paper, Chapter 5, vol 3(2), Annex 94. 83 Ibid, Chapter 7. 24
waste near the Irish Sea coast. He is acutely aware of the Government’s obligations to other states which are set out in various international obligations in respect of the sea and the environment more generally.”84
1.66. Ireland participated in the Windscale Inquiry regarding THORP in 1977. Similarly in relation to the MOX plant Ireland has been a consultee in all five public consultations held by the United Kingdom. It has made its concerns about the MOX plant known since 1994.85
1.67. The Irish people have also voiced their views, independent of their Government’s actions. In April 2002, 93% of all Irish households took part in a postal campaign against the Sellafield site. In a campaign organised by civil society 1.2 million of Ireland’s 1.3 million households sent post cards to Prime Minister Tony Blair and to the chairman of BNFL calling for Sellafield to be shut down. These were delivered on 26 April 2002.86
1.68. The concerns of Ireland are shared by other coastal States, who also feel the impact of discharges from Sellafield, on the marine environment. In March 2002, at the Bergen Summit on pollution of the North Sea, the press reported that the Government of Norway was seeking legal advice on how to stop BNFL discharging radioactive waste into the sea from the Sellafield site. The UK Environmental Minister promised to listen to complaints about Sellafield, saying: “I am aware that there are genuine and very real concerns in this country.”87 Earlier, in October 2001, the five member States of the Nordic Council (Norway, Sweden, Denmark, Finland and Iceland) called on the United Kingdom to stop radioactive pollution from Sellafield. Norway and other States called on the United Kingdom to halt all radioactive discharges from Sellafield and close the THORP reprocessing plant. Norway has called for emissions from BNFL’s reprocessing facilities to be processed inland and not to be discharged into the Irish Sea;88 and the Norwegian Minister of the Environment wrote to the United Kingdom counterpart expressing strong regret with regard to the United Kingdom’s decision that the commissioning of the MOX plant was justified, stating that: “the new MOX plant will strengthen the commercial basis for reprocessing activities at Sellafield and most likely expand the volume and prolong the life span of these activities as well as the discharges and risks they entail. There will also inevitably be more shipments of MOX-fuel which represent a significant environmental and safety risk.”89
1.69. In addition to these neighbouring States, other States which lie along the routes used to transport radioactive materials to and from the United Kingdom, have also protested vigorously against this transportation. This aspect is dealt with in more detail in Chapter 2.
84 See the United Kingdom’s decision letter regarding Nirex, 17 March 1997, vol 3(3), Annex 118. 85 For particulars of Ireland’s participation in the public consultations regarding the justification of the MOX plant see Chapter 4. 86 On 1 May 2002, the Prime Minister was asked in Parliament if he could confirm that he had “received the largest amount of correspondence [1 Million cards] from individuals on one subject that any Prime Minister has ever received, …from citizens across Ireland.” See House of Commons Hansard Debates, 1 May 2002 (pt 2) at www.parliament.the-stationery-office.co.uk/cgi-bin/htm_hl?DB=ukparl&STEM. 87 See vol 3(3), Annex 116, p 359. See also extracts from the Bergen Ministerial Declaration, March 2002, 3(2), Annex 86. 88 See vol 3(3), Annex 112. 89 Letters from Norway dated 12 August 2001 and 18 October 2001, vol 3(3), Annexes 113 & 114. 25
1.70. Ireland’s concerns, and those of other States, have become all the more acute as a result of the events of 11 September 2001. The Prime Minister of the United Kingdom has recognized these renewed concerns when he stated in Parliament, on 14 September 2001, that for terrorist groups: “[T]he limits are only practical and technical. We know, that they would, if they could, go further and use chemical, biological, or even nuclear weapons of mass destruction. We know, also, that there are groups or people, occasionally states, who will trade the technology and capability of such weapons. It is time that this trade was exposed, disrupted, and stamped out. We have been warned by the events of 11 September, and we should act on the warning.”
1.71. However, within three weeks of these events the MOX plant was authorised by the United Kingdom Government, on 3 October 2001. 26
27
CHAPTER 2
THE MOX PLANT
2.1. In the early 1990’s BNFL sought authorisation for the construction at the Sellafield site of a new MOX plant for the commercial manufacture of nuclear fuel from a mixture of uranium and plutonium dioxides. The plutonium dioxide was to be produced at the THORP plant. After planning authorisation was granted in 1994, construction of the MOX plant was completed in 1996. However, it took a further five years before the United Kingdom was able to take the decision on 3 October 2001, which paved the way for its authorisation and operation. In that period five Public Consultations were held and a scandal concerning the faulty production of MOX fuel at the MOX Demonstration Facility (MDF) caused Japan to review its use of the MOX fuel.
2.2. This Chapter is divided into 5 sections. Section A outlines the nuclear fuel cycle and explains the processes whereby MOX fuel is manufactured, including related activities associated with its manufacture. Section B summarises the details – insofar as they are known – as to the international shipments of radioactive materials to and from the United Kingdom which are associated with the MOX plant, and which pass through the Irish Sea. Section C describes economic aspects of the MOX plant, and the international market for MOX fuel, such as it is. Section D describes the ownership of the site, which is to be transferred shortly from BNFL to a new Liabilities Management Authority. This Section also touches upon BNFL’s record of compliance with the regulatory safeguards which apply to the Sellafield site. Finally, Section E describes the regulatory process and the decision-making procedure leading to the decision of 3 October 2001.
A. THE MANUFACTURE OF MOX FUEL, AND RELATED ACTIVITIES
2.3. The manufacture of MOX fuel, the consequent increase in activity at the Thermal Oxide Reprocessing Plant (THORP) and the pressures on existing waste storage facilities, involve significant risks for the Irish Sea. The manufacture of MOX fuel will inevitably lead to discharges of radioactive substances into the marine environment, including planned liquid discharges into the Irish Sea and releases into the atmosphere which will reach the Irish Sea. These, in turn, will add to the existing concentration of radioactive isotopes in the Irish Sea, in a manner which Ireland considers to be incompatible with the United Kingdom’s international legal obligations. MOX manufacture is also vulnerable to accidents, and the MOX plant can only serve to increase the attractiveness of Sellafield as a target for terrorist attack.
2.4. The production of MOX fuel at Sellafield involves two material stages. Both have significant implications for the marine environment of the Irish Sea. In the first stage spent nuclear fuel is reprocessed at THORP. The spent fuel is separated into uranium, plutonium 28 and fission products. In the second stage the separated plutonium dioxide and uranium are used to manufacture mixed oxide fuel (MOX) at the new MOX plant at Sellafield.
2.5. The production of MOX fuel is graphically depicted at Plate 13.
THE NUCLEAR FUEL CYCLE
2.6. Nuclear power rectors, used to generate electricity, are normally fuelled with uranium, a naturally occurring element.1 After uranium has been used in a reactor to produce electricity it is known as “spent fuel”. Spent fuel may be stored and eventually permanently disposed of in a geological repository. Alternatively, spent fuel may undergo a further series of steps including temporary storage, reprocessing, and recycling before eventual disposal as waste in a geological repository. These steps collectively make up the “nuclear fuel cycle”.
2.7. Several hundred fuel assemblies make up the core of a nuclear reactor. For a reactor with an output of 1,000 megawatts of electricity, the core would contain about 75 tonnes of low-enriched uranium. In the reactor core the uranium-235 isotope fissions (or splits), producing heat in a continuous process called a fission chain reaction. Some of the uranium-238 in the reactor core is turned into plutonium and about half of this is also fissioned, providing about one third of the reactor’s energy output.
2.8. Fission is the process of splitting the nucleus of a heavy atom (such as uranium and plutonium) into two or more parts. When the atom is bombarded with neutrons and the nucleus splits apart, it produces fission products – essentially two or more unstable (radioactive) atoms. A number of neutrons (which may go on to split apart other nuclei, thus setting up a chain reaction) and a great deal of energy in the form of radiation. The radioactive decay of the radioactive fission products produces heat.
2.9. As in any electricity generating station, the heat is used to produce steam to drive a turbine and an electric generator. To maintain efficient nuclear reactor performance, about one-third of the spent fuel is removed every year or so, to be replaced with fresh fuel.
2.10. Spent fuel assemblies taken from the reactor core are highly radioactive and give off large amounts of heat. They are therefore stored in special ponds which are usually located at the reactor site, to allow both their heat and radioactivity to decrease. The water in the ponds serves the dual purpose of acting as a barrier against radiation and dispersing the heat from the spent fuel.
2.11. Spent nuclear fuel still contains approximately 96% of its original uranium; about 3% of spent nuclear fuel comprises waste products and the remaining 1% is plutonium produced while the fuel was in the reactor and not “burned” then. The separated plutonium can be blended with, for example, natural uranium to produce a mixed oxide (MOX) fuel, in a MOX fuel fabrication plant like the Sellafield MOX plant.
1 To prepare uranium for use in a nuclear reactor it must be processed through a number of steps: mining and milling, conversion, enrichment and fuel fabrication. The vast majority of all nuclear power reactors in operation in the world use “enriched” uranium fuel in which the content of the uranium-235 isotope has been raised from the natural level of 0.7% to about 3.5% or slightly more. The enrichment process removes 85% of the U-238 (the other uranium isotope in natural uranium). 29
2.12. The highly radioactive fission products can be stored in liquid form and subsequently solidified. This is done by calcining it (heating it strongly) to produce a dry powder which is incorporated into borosilicate (Pyrex) glass to immobilise the waste. The glass is then poured into stainless steel canisters, a process referred to as vitrification.
2.13. The final disposal of vitrified high-level wastes, or the final disposal of spent fuel which has not been reprocessed, has not yet taken place. It is generally assumed that it will be buried in stable rock structures deep underground in geological formations such as granite, volcanic tuff, salt or shale.
STEP 1: REPROCESSING OF SPENT NUCLEAR FUEL
2.14. As stated above, plutonium, which is ultimately used to manufacture MOX fuel, comes from reprocessing “spent” nuclear fuel – fuel which has already been irradiated in the core of a nuclear reactor. The MOX process is therefore closely connected with spent fuel reprocessing. A MOX plant requires a reprocessing plant to supply it with raw materials. In the case of Sellafield, the spent fuel is first brought to THORP where it is reprocessed and the product of the THORP process (i.e. the plutonium dioxide) is then transferred to the adjoining MOX plant. The reprocessing activity itself produces significant amounts of radioactive wastes which are discharged into the Irish sea.2
2.15. All commercial reprocessing plants (in the UK, France, Russia, India and Japan) use a chemical process known as PUREX. This involves cutting spent fuel elements into small lengths and dissolving them in tanks of hot concentrated nitric acid. On the Sellafield site this takes place at the THORP plant. The pieces of the stainless steel canisters which had enclosed the oxide fuel elements (called waste hulls), which are removed during the cutting process, are encapsulated in cement and then stored at Sellafield (as intermediate level radioactive waste).
2.16. The uranium and plutonium dissolved in the nitric acid are then separated by solvent extraction steps. Three streams of liquid emerge from the reprocessing plant – solutions of uranium nitrate, plutonium nitrate, and fission products. The liquid containing the fission products is highly radioactive and generates a large amount of heat by way of radioactive decay processes. At Sellafield these liquids are contained in 21 stainless steel Highly Active (Waste) Storage Tanks (HAST tanks). This high-level radioactive waste would boil if the tanks were not continuously cooled. This high-level liquid waste is vitrified. Cylinders of vitrified waste are stored at Sellafield until they can be returned to the owners of the spent fuel, who will then decide how it is to be stored.3
2.17. Only a small amount – about 10% – of all spent reactor fuels are subject to reprocessing. The remainder is stored until it can be permanently disposed of in a geological repository. The United Kingdom has no permanent storage facility. A proposal to explore the construction of one near the Irish Sea was rejected by the United Kingdom.4 The United States is planning to build such a repository at Yucca Mountain.
2 See Chapter 3, para 3.27 et seq. 3 Vol 3(3), Annex 116. See also Chapter 3, para 3.8 and Chapter 8, para 8.192 et seq. 4 See Chapter 1, para 1.57. 30
THE THORP REPROCESSING PLANT
2.18. THORP started operating in 1994. It reprocesses foreign spent fuel and British spent fuel originating from reactors operated by British Energy (Advanced Gas-Cooled Reactors and one Pressurised Water Reactor). Most of the foreign fuel comes from Japan; the rest comes from Germany, Switzerland, Sweden, and the Netherlands.
2.19. Apart from the Advanced Gas-Cooled Reactors (AGRs),5 these reactors are light- water reactors (LWRs). Both types are originally fuelled with uranium-dioxide fuel, covered in stainless steel cladding. Reactors such as Magnox reactors are fuelled with metal uranium fuel, clad in magnesium alloy. At Sellafield Magnox fuel is currently reprocessed in another reprocessing plant, called B-205.6 The B 205 plant is not at present a part of this dispute between Ireland and the United Kingdom.
2.20. The THORP plant at Sellafield has reprocessed spent oxide fuel since 1994. In the Fiscal Year 2001-2002 BNFL expects to reprocess 735 tonnes of Heavy Metal (tHM).7 This gives a total of 3,899 tHM reprocessed in THORP during its eight years of operation, an average annual throughput of 487 tHM per year. On average, the output of THORP has fallen far short of the annual capacity of more than 900 tHM originally envisaged as practical. The full design throughput of the plant is 1,200 tHM and according to BNFL, it could reach 1,000 tHM. However, THORP has never reached this throughput and is unlikely ever to do so.
2.21. The THORP reprocessing contracts so far negotiated by BNFL amount to a total of about 6,600 tonnes of heavy metal (tHM).8 These contracts are called “baseload contracts.” THORP’s initial baseload period was ten years, and it was originally due to be completed on 31 March 2004. However, significant delays have slowed down the operation of THORP, so this volume is expected to keep THORP running until 2007 or later.9 BNFL is actively trying to obtain new contracts to keep THORP running after this date. However, BNFL has obtained no new contracts for THORP since 1997.10 It is considered highly unlikely that THORP will attract any more contracts, at least without the MOX plant being brought into operation.11
2.22. About two-thirds of the baseload contracts are from overseas customers. Five overseas customers – Japan, Germany, Switzerland, Sweden and the Netherlands – account for about 4,432 tHM of the baseload contracts. Two countries, Japan and Germany, together account for about 86% of the overseas baseload contracts. Most of the remaining
5 Chapter 1, para 1.43. 6 Since 1965, the B-205 plant has reprocessed about 27,000 tonnes of spent Magnox fuel. About 3,500 tonnes of LWR spent fuel have been reprocessed at THORP. According to current plans, B-205 will shut down by 2012. 7 In its first Fiscal Year (FY) 1994 – 95 THORP reprocessed 65 tHM; in FY 95-96, it reprocessed 208 tHM; in FY 96-97, 408 tHM; in FY 97-98, 781 tHM; in FY 98-99, 461 tHM;in FY 99-00, 879 tHM; and in FY 00-01, 362 tHM. See Liquid and Aerial Discharges from the Sellafield Mixed Oxide Plant, Dr. Frank Barnaby, vol 2, Appendix 8. 8 See Dr. Barnaby’s Report, vol 2, Appendix 8, paras 2.3, 2.4. 9 Ibid, para 2.4. 10 See Report on Commercial Confidentiality and the SMP Plant, Mr. G. Mackerron, vol 2, Appendix 10, para 1.3.25. 11 Ibid, para 1.3.27-1.3.29. 31 one-third of the baseload contracts, more than 2,000 tHM, is contracted by British Energy12
2.23. BNFL has negotiated two post-baseload contracts with British Energy and Germany. Without additional contracts THORP will cease to operate in the period 2007- 2010. This factor is the key to understanding the rationale behind the proposal for the MOX plant. Without MOX it is unlikely that THORP would obtain any new contracts. If there were no reprocessing contracts, then once the already separated plutonium at Sellafield was made into MOX fuel, the MOX plant would have no reason to exist.13
2.24. The reprocessing at THORP results in the production of radioactive wastes in solid, liquid and gaseous forms.14 A significant proportion of these wastes are discharged directly or indirectly into the Irish Sea or into the atmosphere.15 Therefore THORP has and continues to contribute materially to the radioactive pollution of the Irish Sea.16
2.25. The MOX plant is dependent upon the plutonium dioxide produced at the THORP plant as a feedstock. BNFL hopes that the operation of the MOX plant will extend the life of the THORP plant. In this way the authorisation of the MOX plant leads directly to an increase in activity at the THORP plant, and to significantly greater increases of radioactive discharges into the Irish Sea.
2.26. The Report of Gordon MacKerron (‘the MacKerron Report’) explains in great detail that MOX production is an expensive alternative to the storage of spent nuclear fuel, rather than an economically competitive alternative fuel. The MacKerron Report also explains the link between the MOX plant and the THORP plant.17
STEP 2: THE MANUFACTURE OF MOX FUEL
2.27. The product of the THORP reprocessing activity produces the feedstock for the manufacture of MOX fuel. The manufacturing process for MOX fuel is relatively straightforward. Mixed Oxide (MOX) nuclear-reactor fuel is made from a mixture of depleted uranium dioxide (UO2) and plutonium dioxide (PuO2). It typically contains 3% to 10% plutonium-239 (Pu-239), the remainder being depleted uranium (U-238). The radioactivity in PuO2 makes it a highly toxic material. If a person inhales into the lungs less than 100 micrograms of PuO2 (which is too small a quantity to be visible to the human eye), it is highly probable that they will develop lung cancer. If a few milligrams are ingested there is a high probability of developing liver or bone cancer.
2.28. The MOX plant at Sellafield is a commercial MOX production plant, with a nominal capacity of 120 tonnes of heavy metal per year (tHM/y). Its only stated rationale is the commercial production of MOX fuel, unlike the United States MOX production facility which is non-commercial and is solely intended to reduce its plutonium stockpile. As described in Chapter 1, the MOX plant will, in the United Kingdom Government’s own assessment, never recoup the costs of its construction.
12 See Barnaby Report, vol 2, Appendix 8, para 2.4. 13 See the Mackerron Reports, vol 2, Appendices 10 and 11. 14 See Chapter 3, also Barnaby Report, vol 2, Appendix 8, part 3. 15 Ibid. 16 Ibid. 17 See Mr MacKerron’s Report, Executive Summary and Section 1.1, vol 2, Appendix 10. 32
2.29. The MOX plant is designed to manufacture fuel for Light-Water Reactors, both Pressurised Water Reactors and Boiling-Water Reactors. To manufacture MOX fuel at the plant, uranium dioxide and plutonium dioxide will be mixed – by grinding, milling and blending – to produce a micronised, granulated powder.18 During these processes a dry lubricant (zinc stereate) and a conditioner (an agent to control porosity) are added. The granulated powder is then milled, pressed and sintered in an atmosphere of argon- hydrogen. This, in turn, produces a sintered fused matrix of ceramic dioxide. This sintered MOX is in the form of cylindrical pellets. Conveyors transfer the pellets to the grinding and inspection stations where they should be precisely ground to the dimensions (diameter and length) specified by the customer. Suitable pellets are put into a pellet store until they are required for the production of fuel rods for a reactor. Unsuitable pellets are re-milled and the powder put through the process again. Pellets are stored on the Sellafield site until they are required for the production of reactor fuel rods.19 This involves placing the MOX pellets in a zirconium alloy sheath, which is purged with helium. This forms a sealed fuel rod of about two to three meters long.20
2.30. The fuel rods are inserted into the reactor core as an assembly; the rods are held in geometric (square) arrays by lightweight spacers to form fuel assemblies for a Pressurised Water Reactor or a Boiling-Water Reactor. A typical MOX fuel assembly consists of a square array of rods: each rod contains about 300 MOX pellets. For a Pressurised Water Reactor the array is typically 17 by 17 rods; for a Boiling-Water Reactor it is 8 by 8 rods. The customers for MOX require that the pellets are soluble in a pure nitric acid solution so that spent MOX fuel rods can be reprocessed.
2.31. The specified properties of MOX pellets produced by BNFL are: density, 10.45 grams per cubic centimetre (g/cc); the green pellet density is more than 6 g/cc; the average grain size is 7.4 microns, with a standard deviation of 0.54 micron. A typical MOX pellet for a Pressurised Water Reactor is 1.0 centimetres in length and 1.0 centimetres in diameter, and weighs 8.2 grams. A Boiling Water Reactor pellet is typically 1.03 centimetres long and 1.04 centimetres in diameter and weighs 9.15 grams.21
2.32. In summary, the Sellafield MOX Plant consists of two separate lines. Each line contains an attritor mill (fed by uranium and plutonium dioxide dispensers), a blender, a second attritor mill, a spheroidiser, a pellet hopper, a pellet press, sintering furnaces, and a grinder. After grinding, the pellets go to the sintered pellet store. Zinc stearate and a conditioner are added to the blender and the spheroidiser. Unsuitable pellets, after passing through a pellet crusher, as well as arisings from the grinder, can be recycled through the line. Most of the operations at the MOX plant up to the loading of filled fuel rods into fuel magazines and assemblies are carried out in “glove boxes”. The MOX Plant is mainly a remotely operated (automated) plant relying extensively on a software-based system for control of the process. The plant is operated from a control room provided with equipment
18 The technology used by BNFL to produce MOX is known as the Short Binderless Route (SBR) process; it is a dry powder process developed by BNFL from its experience in developing and fabricating MOX fuel for fast breeder reactors. Other European MOX producers use a different process, called Micronized Master Blend (MIMAS). 19 See Dr. Barnaby’s Report, vol 2, Appendix 8. 20 The fuel rod, purged with helium, is subjected to a helium leak test, monitored for loose and fixed contamination, tested for rogue pellets, checked for overall length and geometry, X-rayed, inspected for surface finish, loaded into a magazine and stored until required for the production of a fuel assembly. 21 Ibid. 33 to control the production and inspection stages of the pellets, and to monitor and control the environment of the plant.
2.33. The operation of the MOX process involves particular risks which distinguish it from other fuels: • The MOX plant is an automated plant relying extensively on an untried software-based system for control of the process; • The production process involves the use of an advanced powder technology. Experience in other powder processing industries indicates that processes which are dependent on powder technology are not very reliable, since small changes in conditions can affect the powder and result in poor mixing or powder jams; • Problems associated with powder technologies are exacerbated when, as in the MOX process, small batches need to be produced to variable formulations; • Lapses in the quality of inspections carried out by BNFL may have extremely serious safety implications and may have consequences which are time consuming and costly to rectify. In relation to Japan, it is still not clear that the loss of customer confidence caused by the Data Falsification Incident (see para. 2.78 below) will be possible to rectify at all. • Although MOX ceramic melts at a temperature of about 1800 degrees Centigrade, surface oxidation occurs at the much lower temperature of about 250 degrees Centigrade if the fuel is exposed to air; at relatively low temperatures MOX pellets give off breathable particles after relatively short exposure periods.
2.34. The MOX manufacturing process also involves the production of radioactive wastes in solid, liquid and gaseous forms. Chapter 3 sets out the details of the planned discharges from the MOX plant.22
2.35. Ireland is concerned to know whether appropriate safety standards are being applied in the MOX plant, and whether these have been properly budgeted for. Ireland, however, has no information on this issue, since the United Kingdom has declined to make information available to Ireland. This is the subject of the separate proceedings initiated under the 1992 OSPAR Convention.
22 See Dr. Barnaby’s Report, vol 2, Appendix 8. 34
B. INTERNATIONAL SHIPMENTS OF RADIOACTIVE MATERIALS THROUGH THE IRISH SEA
2.36. As stated above, the spent fuel which is reprocessed at THORP has been sourced from the United Kingdom and overseas. Reprocessing spent fuel from overseas has, in the past, involved shipments through the Irish Sea. If BNFL were to secure any additional reprocessing contracts from overseas, these would result in additional transports of spent nuclear fuel through the Irish Sea. Ireland is concerned to know whether appropriate safety standards have been and continue to be applied and properly budgeted for in relation to the transports through the Irish Sea. Ireland, however, has no information on this issue since the United Kingdom has declined to make information as to the total number and frequency of transports, and their routes available to Ireland.23
2.37. Once spent nuclear fuel has been reprocessed at THORP for overseas customers, and the separated plutonium has been used to manufacture MOX fuel at the Sellafield plant, the MOX fuel will be returned to the overseas customer. This will result in the transport of MOX fuel from the United Kingdom to the overseas customer, resulting in additional shipments through the Irish Sea. In addition, Ireland understands that there will also be transports of the radioactive high-level wastes that result from the reprocessing, through the Irish Sea.
TRANSPORTS OF SPENT FUEL INTO THE UNITED KINGDOM
2.38. The spent nuclear fuel elements which are ultimately to be converted into MOX fuel are intended to come from sources both within and outside the United Kingdom. This requires the transportation of large quantities of hazardous radioactive materials in close proximity to Irelands territory and waters.
2.39. Since the 1970s several thousands tonnes of spent nuclear fuel have been shipped to Sellafield by overseas customers. These shipments take place on dedicated civil (i.e., non-military) freighters. Shipments to the United Kingdom have passed and will continue (if permitted) to pass through the Irish Sea in close proximity to Ireland. Although the United Kingdom states that most of the spent fuel that will be used to manufacture MOX is already at Sellafield, as of March 2002, some of the overseas spent fuel remained to be delivered to THORP under the baseload contracts. Future shipments of spent fuel will, therefore, come from Europe (from Germany, Switzerland and the Netherlands) to Sellafield, almost certainly via Barrow. These shipments will go through the Irish Sea.
TRANSPORT OF MOX FUEL FROM THE UNITED KINGDOM
2.40. No nuclear power stations in the United Kingdom currently use MOX fuel. This means that all MOX fuel produced at Sellafield will have to be transported abroad by sea. The transportation of the MOX fuel prepared at Sellafield to Japan and possibly to other States is also expected to take place largely on dedicated civil (i.e. non-military) freighters. The potential routes are set out in the map at Plate 6.
2.41. The three possible routes for transport to and from Japan involve travel (i) via the Cape of Good Hope and the southwest Pacific, (ii) via Cape Horn and (iii) through the
23 See Chapter 8, paras 8.238-274. 35
Caribbean Sea and via the Panama Canal. Each shipment will pass close to Ireland. If the MOX plant proceeds to plan, then about 45 tonnes of plutonium reprocessed from previously contracted Japanese spent nuclear fuel could be incorporated into MOX fuel assemblies. Forty-five tonnes of plutonium could produce 900 tonnes of MOX fuel or 1800 typical LWR assemblies.24 Assuming that all the Japanese plutonium is returned to Japan in the form of MOX fuel, Ireland estimates that that alone will involve a minimum of 60 shipments, if fully loaded, and many more if partly loaded.
TRANSPORT OF MOX FUEL TO THE UNITED KINGDOM
2.42. In 1999, MOX fuel assemblies manufactured at the Sellafield MDF were transported by sea to Japan. The total amount of plutonium in the assemblies was approximately 255 kgs. Subsequently it was revealed that the specifications of the MOX pellets that had been sent to Japan had been falsified (See paras 2.78 below). The existence of this tainted MOX fuel was first disclosed to the public in 1999. After lengthy discussions, Japan refused final delivery of the tainted fuel thus necessitating its transport back to the United Kingdom. One of the five conditions to allow BNFL to restart its MOX supplies to Japan was the return of this tainted MOX fuel to the United Kingdom.25 BNFL agreed to this demand in July 2000. BNFL also agreed to bear the transport costs for the return of the tainted fuel and pay compensation of about £40 Million.26 BNFL stated that the transport costs were expected to amount to “several million pounds.” The total cost of the episode amounts to £113 million (i.e. more than half of the “profit” which the United Kingdom government expects the MOX plant to make over the course of its life, not taking into account the £470 million construction costs). This tainted fuel is currently (on 26 July 2002) en route from Japan to the United Kingdom, and is the subject of a distinct claim by Ireland of non-cooperation.27
OPPOSITION TO THE TRANSPORT OF RADIOACTIVE MATERIALS BY SEA
2.43. Besides Ireland, several other States have already entered strong protests about the shipment of radioactive materials through waters over which they exercise sovereign rights, or over the high seas. States have protested individually and through regional groupings.
2.44. States in Latin America, led by Argentina and Chile, have declared their strong opposition to the use of the Cape Horn route and have insisted that the ships do not enter their exclusive economic zone(EEZ).28
24 See Dr. Barnaby’s Report, vol 2, Appendix 8. 25 The ADL Report suggests, on the basis of extensive but unidentified interviews with Japanese parties, that there will be no BNFL MOX deliveries to Japan until five conditions have been met, and in any case not until late 2004 (ADL Report, page 15). The ADL Report also accepts that “the [falsification] incident has severely disrupted the Kansai MOX programme.” (Appendix, page 7), vol 3(2), Annex 97. 26 See the Memorandum of the US Nuclear Regulatory Committee, 6 September 2001 and its attachment 2, Nuclear Fuel, 20 August 2001, vol 3(3), Annex 119. See also Articles regarding BNFL’s finances, vol 3(3), Annex 117. 27 See Chapter 8, paras 8.256-266. 28 See statements of protest by states situated in proximity to transport routes, vol 3(3), Annex 109 36
2.45. Countries in the south-west Pacific, led by New Zealand, have done the same in relation to the Cape of Good Hope and the Pacific routes.29 However, as the Caribbean/Panama Canal route is the swiftest and cheapest, the Caribbean is considered especially suitable as a route. The use of this route has also attracted widespread governmental protest from states in the region.
2.46. In March 1999, Heads of Government of the Caribbean Community (CARICOM) expressed their strong opposition to the increasing frequency and volume of the hazardous material being shipped, in spite of the repeated protests by States in and bordering on the Caribbean Sea, and appealed to the Governments of France, Japan and the United Kingdom to desist from such transports along this route.30
2.47. States in other parts of the world have also taken steps to address movements of radioactive shipments in and around their waters. These include expressions of concern and protest notes, and the banning of shipments through territorial waters and EEZs. In 1995, a number of States banned BNFL’s Pacific Pintail from their EEZs.31 Similarly, in 1997, a number of states banned BNFL’s Pacific Teal from entering their EEZs.32 The Governments of Argentina, Brazil, Chile and Uruguay issued a joint declaration stating their serious concerns with the risks of the transport of radioactive waste shipments in the region, their intention to adopt, in waters under their jurisdiction, measures recognized under international law in defence of the health of their populations and the marine environment, and the need to reinforce, in international bodies, the regulation of the transport of nuclear waste and spent nuclear fuel.33 South Africa stated its opposition to the Pacific Teal entering its EEZ.34 New Zealand issued formal statements seeking Japanese assurances that the vessel would not pass through New Zealand’s EEZ.
2.48. The Ministers for Foreign Affairs of the Rio Group, meeting in Santiago, Chile, on 27 March 2001, formally expressed their concern about the transit of radioactive materials and wastes along routes near their coasts, or along navigable watercourses of member countries, in view of the risks of damage involved and the harmful effects for the health of coastal populations and for the ecosystems of the marine and Antarctic environment. Those concerns, which were transmitted to the United Nations on 4 September 2001, related inter alia to security measures applicable to the transport of radioactive material and hazardous wastes, the need for guarantees on the non-pollution of the marine environment and the exchange of information on the routes selected, the need to communicate contingency plans in case of accidents, the provision of commitments to recover materials in the event of spills (or loss of materials through sinking or other causes) and to decontaminate affected areas, and establish mechanisms for liability in the event of damage.35
29 Ibid. 30 Ibid. 31 In 1995 Brazil, Chile and Argentina and Kiribati banned BNFL’s Pacific Pintail from their EEZs (Reuters wire story, March 22, 1995). Fiji sent a diplomatic note to Japan to ensure the ship was kept out of its territorial waters. 32 Portugal and Malaysia banned the Pacific Teal from its waters (Reuters report, 15 July 1997). (Joint Declaration about Radioactive Waste Transport, 17 January 1997). 33 Joint Declaration about Radioactive Waste Transport, 17 January 1997. 34 Press Statement by Deputy Minister P. R. Mokaba, 31 January 1997. 35 Note verbale dated 4 September 2001 from Chile to the UN, vol 3(3), Annex 109. 37
2.49. The shipment of faulty MOX that is en route from Japan to the United Kingdom (at the time of writing) has raised objections from at least 37 States,36 including Ireland, which is also concerned as to the compatibility of the transport with the undertaking given by the United Kingdom to the International Tribunal for the Law of the Sea in November 2001. This is dealt with in further detail in Chapter8.
VESSELS USED FOR TRANSPORTATION
2.50. Spent nuclear fuel, vitrified waste and MOX are transported to and from the UK in five vessels flagged in the United Kingdom. Their registered owner is Pacific Nuclear Transport Ltd (PNTL), which is jointly owned by BNFL, Cogema and ORG, which represent the Japanese nuclear utilities. The PNTL fleet is designated “Pacific Class”. Shipments of used, and subsequently reprocessed, nuclear fuel between Europe (UK and France) and Japan commenced in 1969. The United Kingdom states that these shipments have always conformed to IAEA transport regulations (in respect of the packaging of the materials being shipped). However, there were no international standards applied to the type of ships employed in this trade until 1993. Available information suggests that the UK registered Pacific Class PNTL fleet consists of the following vessels: • Pacific Swan, built in 1979 (United Kingdom) • Pacific Crane, built in 1980 (United Kingdom) • Pacific Teal, built in 1982 (United Kingdom) • Pacific Sandpiper, built in 1985 (United Kingdom) • Pacific Pintail, built in 1987 (Japan)37
2.51. Despite the fact that these vessels were designed and built well before the introduction of the 1993 Irradiated Nuclear Fuel (INF) Code, it is claimed that the PNTL fleet has always operated to INF Code standards and that extra equipment has been added in line with technological developments and operating experience to maintain high standards of operational safety.38 The 1993 INF Code stipulates most of the features designed by the PNTL designers in the late 1970s, but there is no evidence that any major modification of the PNTL vessels has occurred since they were completed. One conclusion that may be drawn is that the IMO standard is not as “stringent” as the United Kingdom claims.
2.52. Each ship is about 104 metres long, with a beam of about 16 metres and a dead weight tonnage of about 3800 tonnes, and is powered by two 1,900 horsepower diesel engines. Each can carry a maximum of 17 spent fuel casks (type TN12) or 14 waste casks (type TN28VT).39
2.53. Most other vessels which carry hazardous materials are fully double hulled. The Pacific fleet of PNTL, however, is double hulled only around the cargo area. The fore and
36 See articles regarding the return of the MOX shipment from Japan, vol 3(3), Annex 110. 37 A Review of Aspects of the Marine Transport of Radioactive Materials: Report, Tim Deere Jones, vol 3(3), Annex 106. 38 Ibid. 39 Ibid. 38 aft sections have only a single skin. This means that the PNTL fleet is more vulnerable in accidents than most hazardous cargo carriers.
2.54. MOX fuel transported from Barrow to Japan will be carried on the Pacific Teal and the Pacific Pintail; these merchant vessels are armed with machine guns. They were used to carry the consignment of MOX, produced in the MDF to Japan from Barrow in 1999; this is the only shipment of MOX so far made from Sellafield to Japan. As mentioned above, it is currently en route from Japan to Sellafield.
2.55. The Pacific Sandpiper and Pacific Swan are used to carry high-level waste from Europe to Japan. The Pacific Crane has not been approved for the transport of high-level waste. It is mainly used to carry highly-enriched uranium research reactor fuel. BNFL also operates the Atlantic Osprey, formerly called the Arneb, a roll on-roll off vessel built in 1986. The Atlantic Osprey is an INF Class 2 ship. It will carry MOX fuel from Barrow to Europe. All the ships in the Pacific Fleet and the Atlantic Osprey can carry any type of INF.
2.56. The effect of an accident, involving the loss of some or all of the cargo in and around Ireland, could seriously contaminate the ocean and probably also the land with highly radioactive materials. This could have devastating effects on fisheries and on human health and the environment and contributes to Ireland’s serious concern about these activities, particularly in the context of a semi-enclosed sea.40
C. MOX ECONOMICS – ITS MARKET AND COMPETITION
2.57. The MOX plant cost £470 million to construct.41
2.58. The Decision of the United Kingdom to proceed to the authorisation of the MOX plant was based on an independent report (the ADL Report42) which concluded that its best estimate was that the MOX plant would make between £199 million and £216 million “profit” over its life.43 However, this figure excluded the capital costs. Accordingly the United Kingdom has authorised the operation of the MOX plant on the basis that it will never recoup the costs of its construction.
2.59. Moreover, the PA Report states that the costs of transport have been excluded from this assessment. In its Counter-Memorial in the arbitration proceedings under Article 9 of the 1992 OSPAR Convention the United Kingdom has stated that the PA and ADL Reports do not contain information on the costs of meeting safety standards, and it is unclear whether these have been taken into account.44
40 The International Atomic Energy Agency has stated that “if a large irradiated fuel package were to be lost on the continental shelf, some large exposures could result”. Chairman’s Report, IAEA, 4-6 November 1996. 41 The ADL Report, vol 3(2), Annex 97, pp 506, 508. 42 Ibid. 43 Ibid, p 478. 44 Counter Memorial of the United Kingdom in the context of the OSPAR Arbitration, para 1.16, footnote 9. 39
2.60. Further, in June 2002 BNFL made public the fact that the incident involving the falsified Japanese MOX fuel would cost it £113 million, including compensation to Japanese customers.45
2.61. It is apparent that the MOX plant will never be profitable, in any commercial sense.46
2.62. It is also apparent that the construction and operation of the MOX plant is inextricably connected to the future of the THORP plant. The MOX plant is inextricably bound up with nuclear reprocessing, both economically and physically.47
2.63. It is against this background that the merits of the significant environmental consequences of the authorisation of the MOX plant fall to be considered.
D. OWNERSHIP AND MANAGEMENT OF THE SELLAFIELD SITE: BNFL AND THE PROPOSED LIABILITIES MANAGEMENT AUTHORITY.
2.64. British Nuclear Fuels plc (“BNFL”) is responsible for most of the activities carried out at the Sellafield site and is engaged in a range of commercial nuclear activities, including the reprocessing of spent nuclear power reactor fuels and the production of MOX fuel. It has existed in its present form since its incorporation in 1971, when it was created out of the United Kingdom Atomic Energy Authority. It took over the Authority’s activities, property, rights, obligations and liabilities.48 BNFL subsequently became a separate company, intended to operate on a fully commercial basis, although the United Kingdom’s Secretary of State for Trade and Industry and the Treasury Solicitor hold all the shares in the company. All “profits” from BNFL therefore go to the United Kingdom. This suggests that the MOX plant should be treated as a normal commercial activity. However it is to be noted that in its most recent accounts – for 2001- BNFL revealed negative profits (i.e. an annual loss) of £2.3 Billion.49
2.65. The United Kingdom Government has now recognised that the MOX and THORP plants are not normal commercial activity. They are recognised to be liabilities (rather than assets) and are to be brought back into public ownership.
THE MOX PLANT AND THE LMA
2.66. Since BNFL is a public limited company it has the same corporate structure and is subject to the same rules as any other commercial enterprise. It has the same duties to its shareholders, and the same objective of maximizing profit. However, the unusual feature
45 See para 2.80 below. 46 The French Government has been advised by a report prepared in 2000 (the Charpin Report) that MOX fuel is expensive and unprofitable. See the MacKerron Report, vol 2, Appendix 10, para 1.2.2. 47 The Report of PA Consulting, (June 1999 public domain version), vol 3(2), Annex 96, p 460. 48 It was incorporated in England under the Companies Acts 1948 to 1967, now repealed and replaced by the Companies Act 1985. 49 See reports of BNFL’s financial condition, vol 3(3), at Annex 117. 40 of BNFL is that it has only one shareholder, the Government. The identity of the shareholder(s) would make no difference in certain contexts, for example a straightforward contractual dispute. However, for the purposes of this case, the identity of the shareholder is highly significant. In this case BNFL’s commercial interests are in reality the commercial interests of the United Kingdom.
2.67. On 28 November 2001, the Secretary of State for Trade and Industry (Ms Patricia Hewitt) announced to the House of Commons the creation of a new body, the Liabilities Management Authority (LMA), which was expected to commence activities in 2002.50 The LMA will take into public ownership the Sellafield site, including the THORP and MOX plants. The Secretary of State set out the Government’s view on inter alia the THORP and MOX plants. She stated that they were to be regarded as liabilities which must be managed, rather than as assets. It is apparent that the financial position of BNFL contributed to the decision to remove the company from ownership and control of, inter alia, the Sellafield site: the Secretary of State told the House that “BNFL’s chairman informed me today that the company’s board has concluded that its long-term liabilities are now estimated to exceed its assets.”51
2.68. In view of the financial position of BNFL, and the huge amount of radioactivity on numerous contaminated nuclear sites requiring remedial work, the LMA has been given the task of “systematically and progressively reducing the hazard posed by legacy [nuclear] facilities and wastes. It will have a specific remit to develop an overall UK strategy for decommissioning and clean-up.”52 A detailed explanation of the structure of the LMA was not given. However, it is clear that the LMA will be a governmental body, and not a commercial entity: ‘I therefore propose to set up a Liabilities Management Authority responsible for the Government’s interest in the discharge of public sector nuclear liabilities, both BNFL’s and the [United Kingdom Atomic Energy Authority’s]… [T]o enable the LMA to exercise its role across the whole public sector civil nuclear liabilities portfolio, the Government now propose to take on responsibility for most of BNFL’s nuclear liabilities and the associated assets. The most significant of those will be the Sellafield and Magnox sites.’53
2.69. It is now clear that once the LMA is operational, and the MOX and THORP plants are transferred to it, the MOX plant will be owned and run by the United Kingdom Government. The 2002 White Paper states that the LMA is to own the sites and assets operated by BNFL and the UKAEA. It is apparent that the plants will not be run on a commercial basis, as the White Paper states that any potential future contracts for MOX and THORP will be entered into only if the United Kingdom Government is satisfied that they will contribute to the overriding and primary need to clean up the site.54
50 House of Commons, Hansard Debates for 28 Nov 2001, Cols. 990 to 995, vol 3(2), at Annex 93. 51 Ibid. 52 Ibid, column 991. 53 Ibid, columns 991-992. 54 The 2002 White Paper, July 2002, vol 3(2), Annex 94. 41
BNFL’S COMPLIANCE RECORD
2.70. Along with a poor financial record, BNFL has a far from satisfactory record of safety and regulatory compliance at the Sellafield site, with numerous examples of violations of regulatory authorisations. These continue up to the present, and are a significant and continuing concern for Ireland. The examples which follow are not exhaustive.
2.71. The 1957 Windscale fire caused a major release of radioactivity into the environment, although its extent remains unknown. Its consequences continue to be felt, however.55 As recently as November 2001, a report in the British press indicated that there are continuing adverse consequences of the 1957 accident at Windscale (Sellafield), with the Nuclear Installations Inspectorate reportedly halting the decommissioning of the Windscale reactor which caught fire in 1957 after an Inspector “lost confidence in the Atomic Energy Authority’s ability to carry it out safely and legally”.56
2.72. Another incident involving the release of radioactivity into the operating area of the plant resulted in the closure of the Head End Plant in September 1973. This release of radioactivity contaminated about thirty-five workers.57
2.73. Since the management of the Sellafield site passed to BNFL in 1971, its record of compliance with regulatory requirements is not considered by Ireland to be entirely satisfactory. During the authorisation process for THORP, in December 1976, BNFL was accused of covering up a leak of radioactive water from an old concrete silo – B38 – containing magnesium oxide cladding removed from spent Magnox fuel before it was reprocessed. Magnox cladding has to be kept under water because of the danger of spontaneous combustion. As a result of this, about a 100 gallons of radioactive water seeped into the ground.58
2.74. Three years later, in March 1979, an additional source of ground contamination was discovered, this time from building B701, one of more than 600 buildings at the site. This leak consisted of far more radioactive material than that released from B38. In July 1980, the United Kingdom’s Health and Safety Executive established that ground contamination had occurred from radioactive acids over a period of 8 years.59
2.75. Following this incident, the United Kingdom’s Nuclear Installations Inspectorate (NII) conducted a comprehensive evaluation of safety at the site. This took nearly two years to complete. The NII made fifteen detailed recommendations for improvements, which took BNFL several years to complete. According to the NII, by the early 1970s Sellafield’s safety had deteriorated to an unsatisfactory level, a situation which “should not have been allowed to develop, nor should it be permitted to occur again.”60 Earlier at the THORP Inquiry it had been revealed that between 1950, when reprocessing started, and
55 Chapter 1, para 1.41. 56 See articles regarding nuclear waste management in the United Kingdom, vol 3(3), Annex 116. 57 Harold Bolter, Inside Sellafield, Quartet Books, 1996, pp 64. 58 Harold Bolter, Inside Sellafield, Quartet Books, 1996, p 71. 59 Ibid, p 94. 60 Ibid, p 95. 42
1976, there had been 177 incidents at Sellafield which were sufficiently serious to warrant a formal investigation.61
2.76. Another significant accident came to be known as the 1983 “Beach incident”, an event which effectively closed local beaches for six months. Apparently, in November 1983 an estimated 4,500 curies of radioactive liquid, including solvent and particulate matter, was discharged into the Irish Sea. Subsequently the public was told that low levels of contamination had been identified on the beach in the immediate vicinity of Sellafield. The United Kingdom Government subsequently advised the public not to use a twenty-five mile stretch of local beaches. BNFL was prosecuted over this incident, and in July 1985, after a seven-week trial, BNFL was found guilty on three charges.62
2.77. Besides incidents involving the release of less radioactive contaminants, BNFL has also had accidents involving plutonium. It is reported that in February 1986 a release of plutonium was detected within the main reprocessing plant. Apparently an amount had also been released into the atmosphere. Other incidents are reported to have occurred in 1990 and 1992. After the 1992 incident, it was several months before the NII allowed Sellafield to commence reprocessing.63
2.78. More recently there have been specific concerns relating to the manufacture of MOX fuel itself. In September 1999 reports emerged concerning the “falsification” of quality control data for MOX fuel destined for a Japanese customer. Specifically, allegations were made that certain data relating to MOX fuel production at the Sellafield MDF plant had been falsified.64 The matter was investigated by the NII, of the Health and Safety Executive. It produced a report which was highly critical of the running of the MDF plant, stating that: “It is clear that various individuals were engaged in falsification of important records but a systematic failure allowed it to happen. It has not been possible to establish the motive for this falsification, but the poor ergonomic design of this part of the plant and the tedium of the job [measuring MOX pellets] seem to have been contributory factors. The lack of adequate supervision has provided the opportunity.”
2.79. The Report concluded: “The events at MDF which have been revealed in the course of this investigation could not have occurred had there been a proper safety culture within this plant. It is clear that some process workers falsified records of the diameter of fuel pellets taken for QA sampling. One example of falsification has been found dating back to 1996. There can be no excuse for process workers not following procedures and deliberately falsifying records to avoid doing a tedious task. These people need to be identified and disciplined. However, the management on the plant
61 Ibid, p 97. 62 Ibid, p 105. 63 Ibid, pp 135-167. 64 Employees within BNFL’s quality control process had bypassed elaborate checks on the dimensions of fuel pellets by using data sheets from previous samples – leading to some lots being passed as safe when the pellets had not actually been measured. 43
allowed this to happen, and since it had been going on for over three years, must share responsibility.”65 (emphasis added)
2.80. The NII Report – published just over two years ago – concluded that before the MDF was allowed to restart, BNFL would need to address all the recommendations made by the Inspectorate.66 By 3 October 2001, when the Decision on “justification” was taken, not all the NII recommendations appeared to have been met. As a result of the adverse publicity surrounding the data falsification scandal, the authorisation process of the MOX plant was slowed down, and in effect delayed by almost two years. The incident cost BNFL £113 million. The falsification incident also eroded Japanese confidence in MOX fuel from Sellafield, who insisted upon the return of all the fuel to Sellafield. Shortly after the incident it was reported the Japanese Government had suspended imports of MOX fuel from BNFL.67 At the time of writing, this tainted fuel is en route to the United Kingdom.
2.81. In February 2000, the HSE published three reports. The first report dealt with the falsification scandal described above. A second report set out the findings of an inspection team over the control and supervision of BNFL’s operations at Sellafield.68 The Inspection was requested by the NII following a series of events at Sellafield where the “cause was seen to be weakness in control and supervision.” The weaknesses found showed that there had been a deterioration in safety performance at the site. The Report stated that “there [was] a lack of a high quality safety management system”; “insufficient resources to implement even the existing safety management system” and that there was a “lack of an effective independent inspection, auditing and review system within BNFL.” The HSE team made a list of 28 recommendations which required implementation to fully meet the standards that were expected of a nuclear site licensee.69
2.82. The third report pertained to the safety of the storage of Highly Active Liquid [stored in the HAST tanks] at the Sellafield site. The NII made further recommendations to BNFL to ensure that it would meet the requirements to control and reduce risks.70
2.83. Beyond concerns over the “safety culture” at BNFL, Ireland also has a long- standing and growing concern in relation to dangers posed by the ever increasing volume of liquid high level waste (HLW) in the HAST tanks at Sellafield. In October 2001 the press reported that BNFL had closed both its reprocessing plants at Sellafield, since it could not reduce the production of liquid high-level radioactive waste (HLW) sufficiently
65 Health and Safety Executive, Nuclear Installations Inspectorate, An investigation into the falsification of pellet diameter data in the MOX demonstration facility at the BNFL Sellafield site and the effect of this on the safety of MOX fuel in use, Report released 18 February 2000. (Extracts), vol 3(2), Annex 101. 66 These included assurances that the deficiencies found in the quality checking process were rectified, that the management of the plant was improved and plant operators were either replaced or retrained to bring the safety culture in the plant up to the standard NII required for a nuclear installation. Ibid. 67 The ADL Report suggests, on the basis of extensive but unidentified interviews with Japanese parties, that there will be no BNFL MOX deliveries to Japan until five conditions have been met, and in any case not until late 2004 (ADL Report, page 15). The ADL Report also accepts that “the [falsification] incident has severely disrupted the Kansai MOX programme.” (Appendix, page 7), vol 3(2), Annex 97. 68 All the Reports are available at the website of the Nuclear Safety Directorate of the HSE at www.hse.gov.uk/nsd (last accessed on 17 July 2002). 69 HSE Team inspection of the control and supervision of operations at BNFL’s Sellafield site. Report available at http://www.hse.gov.uk/nsd/nsdhome.htm. 70 See vol 3(3), Annex 116. 44 to meet regulators’ requirements.71 In fact it is reported that the NII has warned BNFL that neither the structural integrity of the tanks nor the building containing them could be guaranteed beyond 10 years and that the tanks “must be emptied as soon as possible.” The press has also reported that BNFL has already put up a steel building around the tanks – in case they collapse completely and lead to a “catastrophic failure.”72
2.84. The Health and Safety Executives website lists all enforcement notices issued by it since April 2001. The website states that since then BNFL has been issued 5 notices; 8 notice breaches; 2 prosecution cases and 5 prosecution breaches.73 Within the past 18 months, the notices have related to inter alia inadequate monitoring of levels of ionising radiation,74 inadequate control or containment of nuclear materials,75 inadequate arrangements for decommissioning of plants, ponds and facilities,76 and inadequate control of radioactive waste.77 This is the background against which Ireland’s concerns as to the further intensification of nuclear activity at Sellafield is to be assessed.
E. REGULATORY BACKGROUND AND THE DECISION-MAKING PROCESS
2.85. The construction, authorisation and operation of the MOX plant has been subject to various United Kingdom domestic regulatory procedures. To a certain extent these are based on the United Kingdom’s international obligations, including European Community law. Particulars regarding these international obligations are set out in detail in the following chapters. However, it is apparent that the authorization of the MOX plant has taken no account of requirements arising under the 1982 Convention, and relatedly under the 1992 OSPAR Convention.78
2.86. For the purposes of this case, the construction and operation of the MOX plant was subject to the following steps.
First, the developer (BNFL) had to apply for planning permission to build the MOX Plant. This application was to be accompanied by Environmental Statement prepared by BNFL.
Second, the United Kingdom authorities had to be satisfied that the MOX plant would meet applicable environmental requirements, including in relation to the authorisation of discharge levels into the Irish Sea.
71 See vol 3(3), Annex 116. BNFL has been instructed to reduce the amount of liquid stored in the tanks from the current 1500m3 to a beffer volume of 150m3 by 2015. this reflects the concerns about both the integrity of the tanks and the practice of maintaining large volumes of high level liquid waste above ground instead of vitrification. 72 Ibid. 73 See www.hse.gov.uk, HSE Enforcement Notices Area, (last accessed 12 July 2002). 74 Notice N170002575, served on 25 June 2001. 75 Notice N180002595, served on 5 July 2001. 76 Notice N180002627, served on 20 July 2001. 77 Notice N180002860, served on 6 February 2002. 78 See Chapters 7, 8, and 9. 45
Third, the United Kingdom authorities had to be satisfied that the MOX plant was “justified”, in accordance with the provisions of EC Directive 96/29/EURATOM which replaced Directive 80/836/EURATOM with effect from 13 May 2000, that is to say the benefits of the project exceeded its costs.
PLANNING PERMISSION AND THE 1993 ENVIRONMENTAL STATEMENT
2.87. In 1993, BNFL applied for permission from the planning authority local to Sellafield (Copeland Borough Council) to build the MOX Plant. As part of its obligations under the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, BNFL was required to produce a Statement to identify, describe and assess the likely significant effects that might result from the construction, operation and eventual decommissioning of the MOX Plant.79 As set out in Chapter 7, it is Ireland’s position that the Environmental Statement was wholly inadequate and did not meet the United Kingdom’s requirements governing environmental assessment. Ireland first made known its views to the United Kingdom to that effect as early as 1994.80 Consent for the construction of the MOX Plant was nevertheless given by the local planning authority on 23 February 1994. Construction was completed in September 1996.
THE JUSTIFICATION PROCESS AND THE DISCHARGE AUTHORISATIONS
2.88. In November 1996, BNFL applied to the United Kingdom Environment Agency for variations to the gaseous and liquid discharge authorisations granted under the Radioactive Substances Act 1993 for the Sellafield site. These included the following authorisations: • authorisation for uranium processing, to test the operation of the MOX plant; • authorisation for plutonium processing at the MOX plant, and • authorisation for full operation of the plant.
2.89. Although closely related, these three stages are treated separately under the relevant domestic law in the United Kingdom. At the time, the Environment Agency when considering an application under the Radioactive Substances Act 1993, was under a legal obligation to consider the “justification” of an activity giving rise to a new practice giving rise to ionising radiation under the terms of the then applicable EURATOM Directives (Directives 80/836 and 84/467).81
2.90. The process of “justification” requires a consideration of whether the benefits of the practice outweigh the detriments. The requirement is based upon the recommendations of the International Commission on Radiological Protection (ICRP). Paragraph 112 of ICRP Publication 60 provides inter alia:
79 The 1993 Environmental Statement, vol 3(3), Annex 103. 80 See vol 3(1), Annex 8. 81 Directive 96/29/EURATOM replaced Directive 80/836/EURATOM with effect from 13 May 2000. Article 6 of Directive 96/269 also imposes the duty to justify: “(1) Member States shall ensure that all new classes or types of practice resulting in exposure to ionising radiation are justified in advance of being adopted by their economic, social or other benefits in relation to the health detriment they may cause.” (Emphasis added) 46
“No practice involving exposures to radiation should be adopted unless it produces sufficient benefit to the exposed individuals or to society to offset the radiation detriment it causes. (The justification of a practice)”
As the manufacture of MOX fuel was an activity resulting in exposure to ionising radiation, the Environment Agency was under a duty to consider whether it was justified in accordance with EURATOM provisions. Accordingly, the Agency requested BNFL to provide information specifically relating to the MOX Plant in a separate application, which was done by BNFL in January 1997. BNFL had to demonstrate that the MOX plant would not release unacceptable levels of radioactive discharges inter alia into the marine environment.
2.91. No assessment of discharges, and no justification, were required in respect of shipments of radioactive materials bound for Sellafield, or for shipments of MOX fuel or radioactive wastes out of the United Kingdom. As far as Ireland is aware, these shipments have never been subject to any environmental impact assessment requirement, and their impacts on the environment have never been assessed. Nor was any requirement imposed by the United Kingdom authorities in respect of the consequences of the operation of the MOX plant for the operation of the THORP plant, and for the resulting discharges from the THORP plant.
2.92. Indeed, as noted above, the THORP plant has never been the subject of an environmental impact assessment.82
2.93. The justification process involving the MOX plant has comprised five public consultations and the commissioning of two independent reports on the economic case for the MOX plant. The first public consultation conducted by the Environment Agency was concluded in April 1997. In response to concerns about insufficient information about the Plant, PA Consulting Group was commissioned to produce a report. The PA report was released to the public in December 1997 and formed the basis for a second consultation which concluded in March 1998.83
2.94. In October 1998, the Environment Agency issued a Proposed Decision to the effect that the plutonium commissioning and full operation of the MOX Plant was “justified”.84 With regard to the radiological impact of the MOX Plant, it stated that: “The Agency is satisfied that the gaseous, liquid and solid wastes arising from the operation of the MOX plant can be disposed of within the constraints of the existing Sellafield authorisations under [the Radioactive Substances Act 1993]” 85
The “existing Sellafield authorisations” were granted before 1998. Those authorisation took no account of the United Kingdom’s obligations under the 1982 Convention or the commitments made by the United Kingdom in 1998 in the context of its obligations under the 1992 OSPAR Convention. In other words, the environmental standards applied to the
82 See Chapter 7 and the Sheate Report, vol 2, Appendix 6. 83 See Chapter 4, paras 4.10 et seq. 84 Proposed Decision on the Justification for the Plutonium Commissioning and Full Operation of the Mixed Oxide Fuel Plant, October 1998, vol 3(2), Annex 95. The Environment Agency issued three proposed decisions affecting the MOX Plant at this stage: (i) approving the variations to the liquid and gaseous discharge authorisations for the Sellafield site, (ii) finding that the uranium commissioning of the
MOX Plant was justified, (iii) finding that the plutonium commissioning of the MOX Plant was justified 85 Ibid, para 3.1. 47
MOX plant were outdated. It is a central part of Ireland’s case that this approach is inconsistent with the requirements of the 1982 Convention.86
2.95. The conclusion by the Environment Agency that the MOX plant could be operated within the existing discharge authorisations for the Sellafield site was approved by the relevant Secretaries of State in June 1999.87 Although the Secretaries were provisionally of the view that, on balance, plutonium commissioning and full operation of the MOX Plant was justified, they considered that further consultation should be carried out. Hence a third round of public consultation took place in June 1999.
2.96. The data falsification incident which was uncovered in September 1999 interrupted this process. In the light of this incident, and its potential impact on Japan as a MOX customer, BNFL submitted a revised economic case for the MOX Plant in January 2001, and a new consultation document was published in March 2001. In April 2001, another report was commissioned from Arthur D. Little to evaluate BNFL’s revised economic case. (ADL Report). The report was made public in July 2001 and a final round of public consultation, based on this, ended in August 2001.88
2.97. The public domain versions of both the PA Report and the ADL Report were heavily censored, and most of the material financial and quantitative information was removed. Ireland made submissions in each consultation round, and on each occasion asked to be provided with a complete copy of the relevant report. Its requests were refused. These refusals rise to a dispute under Article 9 of the OSPAR Convention, which is presently the subject of arbitration proceedings. (see Chapter 4, para 4.10 et seq).
THE DECISION OF 3 OCTOBER 2001
2.98. On 3 October 2001, the United Kingdom Secretary of State for Environment, Food and Rural Affairs and Secretary of State for Health decided that the manufacture of MOX fuel was “justified” in accordance with the requirements of Article 6(1) of Directive 96/29/EURATOM.89 (The October 2001 Decision). The effect of the Decision is to allow the MOX plant to proceed to operation, and to allow new and additional radioactive discharges to enter the Irish Sea from the MOX and THORP plants.
2.99. The October 2001 Decision is 25 pages long. Four pages are devoted to the background; five pages to the process of justification and six to the events and consultations since 1996. The Decision addresses the environmental issues in three pages; safety and security issues are given 1 ½ pages, and economic issues and other relevant issues are given 4 pages. The Decision concludes by stating “the manufacture of MOX fuel is justified in accordance with the requirements of Article 6(1) of Directive 96/29 EURATOM”.
2.100. In the section entitled “Environmental Issues” the Secretaries rely on the earlier discharge authorisations of the Environment Agency. They state that “the Agency is currently carrying out a general review of all discharges from the Sellafield site that there
86 See Chapters 7 and 9. 87 The October 2001 Decision, paragraph 5, vol 3(2), Annex 92. 88 The Public Domain 2001 ADL Report, vol 3(2), Annex 97. 89 The October 2001 Decision, vol 3(2), Annex 92. 48 is an ongoing consultation which proposes a reduction in the total discharge limits for the site.”
2.101. On the issue of waste arising from the MOX plant the Decision states that the Government had recently published a consultation on a long-term strategy for managing radioactive waste. (See Chapter 3). It states that the “government is satisfied that radioactive waste can be safely stored for many years in conditions tightly regulated by the HSE and the Agency.”
2.102. The section entitled “Safety and security issues” states that “The Office for Civil Nuclear Security (“OCNS”) which regulates security within the civil nuclear industry is satisfied that the security arrangements to be applied by BNFL will provide effective security once the [MOX plant] starts to operate. The OCNS has taken into account the terrorist attacks [in the USA] and continues to be satisfied that this is still the case. The operation of the [MOX Plant] does not materially affect the availability of potential targets for hijacked aircraft. The [MOX Plant] is one of many plants within a large industrial site and has no special features that would single it out from others on the Sellafield site.”90
2.103. As regards BNFL’s transportation of nuclear fuel (spent fuel, separated plutonium and MOX fuel), the Decision states only that it complies with all United Kingdom and international regulatory requirements.91
2.104. Annex 1 to the Decision summarizes the main issues raised by “interested organisations and individuals and the Secretaries views on these issues. 1. Environmental issues (Annex 1 to the Decision, paragraphs 6-14). 2. Health and safety issues (Annex 1 to the Decision, paragraphs 15-20). 3. Implications for plutonium and uranium (Annex 1 to the Decision, paragraphs 21-24). 4. Security issues (Annex 1 to the Decision, paragraphs 25-28). 5. Transportation issues (Annex 1 to the Decision, paragraphs 29-33). 6. Wider nuclear issues (Annex 1 to the Decision, paragraphs 34-36). 7. Local issues (Annex 1 to the Decision, paragraphs 37-40). 8. Economic issues and those related to the AD Little assessment (Annex 1 to the Decision, paragraphs 41-53 and 54-62 ). 9. Trust issues (Annex 1 to the Decision, paragraphs 63-65). 10. International and other issues (Annex 1 to the Decision, paragraphs 66-69). 11. Issues relating to the decision making process (Annex 1 to the Decision, paragraphs 70-80).
2.105. The final paragraph to Annex 1 to the Decision concludes: “Ministers view the requirement of justification as a very serious issue and as a result have taken the necessary time to collect all the relevant information, have sought the views of interested organisations and individuals on several occasions
90 Ibid, para 68. 91 Ibid, para 69. 49
and have considered all the relevant factors carefully before reaching a final decision”.92
2.106. The 2001 Decision makes no mention of Ireland, or the Irish Sea, or of Ireland’s submissions or interests.
2.107. The 2001 Decision makes no mention of UNCLOS, or any of the international instruments upon which Ireland relies in these proceedings.
92 Ibid, Annex 1, para 80. 50
51
CHAPTER 3
ENVIRONMENTAL IMPLICATIONS OF THE MOX AUTHORISATION
INTRODUCTION
3.1. This case is not a dispute over science. It is in essence a dispute over the failure of the United Kingdom to fulfil three categories of legal obligation under the UNCLOS: (i) the obligation to carry out a proper assessment of the likely impact of the MOX development upon the marine environment of the Irish Sea before authorising that development; (ii) the obligation to co-operate with Ireland, as co-riparian of the semi- enclosed Irish Sea, in taking the steps necessary to protect and preserve the marine environment of that sea; and (iii) the obligation placed directly upon the United Kingdom itself to take all the steps necessary to protect and preserve the marine environment of the Irish Sea. Those matters are addressed in chapters 7, 8 and 9 of this Memorial. Nonetheless, some knowledge of the scientific background is necessary in order to appreciate the environmental significance of the MOX development. This chapter outlines that scientific background. A fuller explanation is given in the Reports commissioned by Ireland for these proceedings, in particular the Reports by Professor Salbu,1 Dr Mothersill,2 Dr Nies,3 Professor Liber4 and Dr Barnaby,5 and other studies, documents and materials to which reference is made in this chapter.
3.2. In considering the environmental consequences of the MOX development it is necessary to consider the MOX project as a whole, asking the question: what environmental consequences would not occur if the MOX plant had not been authorised and did not operate? Those are the environmental consequences that are caused by the MOX project. They are the environmental consequences which should have been assessed in the 1993 MOX Environmental Statement, but which were not.6 They are the environmental consequences which should have been the subject of co-operation with Ireland, but which were not.7 And they are the environmental consequences which the United Kingdom should have taken all measures necessary to prevent, but which it did not.8
1 Radionuclides Discharged into the Irish Sea: Sources, Distributions and Long-Term Ecosystem Behaviour, vol 2, Appendix 2. 2 Opinion on Low Dose Effects of Radiation, vol 2, Appendix 3. 3 Artificial Radioactivity in the Marine Environment: Burden of Various Sea Regions, vol 2, Appendix 4. 4 Genetic Risks from Low Doses of Ionising radiation, vol 2, Appendix 5. 5 Liquid and Aerial Discharges from the Sellafield MOX Plant and THORP, vol 2, Appendix 8. 6 See Chapter 7. 7 See Chapter 8. 8 See Chapter 9. 52
3.3. This chapter, which summarizes the main points to be found in the technical appendices to this Memorial, begins by explaining the projected increase in pollution from the Sellafield site, and identifying the contribution to that increase that is attributable to the MOX project (Section A). It then explains how those discharges reach the Irish Sea, the effects of radiation, and the effects that the resulting contamination has upon marine life and upon humans (Section B). Finally, it explains that the discharges are avoidable using existing know-how and technology, which have not been deployed at Sellafield (Section C).
A. POLLUTION ARISING AS A RESULT OF THE AUTHORISATION OF THE MOX PLANT
(1) THE MOX PLANT AND THORP ARE INEXTRICABLY LINKED
3.4. The MOX plant is not designed to function in isolation. It has a specific role within the broader Sellafield operation and is intended to function in conjunction with other Sellafield facilities. The links between the MOX and THORP plants have already been noted in Chapters 19 and 2,10 and are explained in more detail in Appendix 8.
3.5. The operation of the MOX plant has direct and immediate consequences for the THORP plant. In Chapter 2 it was shown that the operations of the MOX plant and the THORP plant are inextricably intertwined.11 This is also clearly visible from the flow-chart reproduced as Plate 13 at the end of this volume. The plutonium dioxide that will provide the feedstock for the manufacture of MOX fuel at the MOX plant is produced at the THORP reprocessing facility. The MOX plant physically adjoins the THORP plant. The uranium dioxide, the other component of MOX, could come from any of three sources: (a) natural uranium dioxide; (b) depleted uranium dioxide from another nuclear facility; (c) reprocessed uranium dioxide from THORP. The choice is made by the customer. Currently, the plan appears to be mainly to use naturally occurring uranium dioxide.
3.6. Without supplies of plutonium arising from new contracts from the THORP plant, the MOX plant would cease to have any role once the existing stock at Sellafield has been fabricated into MOX. Without the MOX plant to process its end products, the THORP plant is very unlikely to attract new contracts. This is recognised by the United Kingdom Government. As the ADL Report commissioned by the United Kingdom Government clearly states: “Interviews with customers also confirmed that there would be little point for them to sign further [THORP] reprocessing contracts with BNFL if [the MOX plant] did not proceed.”12
3.7. Reprocessing at the THORP plant produces very large quantities of radioactive wastes. During the course of reprocessing at THORP, spent nuclear fuel is separated into
9 Chapter 1, para 1.51. 10 Chapter 2, paras 2.25, 2.62. 11 Chapter 2, paras 2.4-2.35. 12 Arthur D. Little, Assessment of BNFL’s Business Case for the Sellafield MOX Plant, July 2001, vol 3(2), Annex 97, p 505. 53
(a) uranium, (b) plutonium, and (c) fission products. The fission products are essentially waste by-products of the nuclear fuel. They are radioactive and, along with other radioactive waste such as worn-out and irradiated plant components, they must be stored and disposed of safely.
3.8. THORP produces high-level liquid wastes (HLW). These are hot solutions of highly radioactive fission products in nitric acid that require constant cooling in order to prevent them from boiling. Those high level wastes are stored in the highly-active waste storage tanks – the HASTs – in building B-215 pending vitrification and permanent storage of that waste.13
3.9. THORP also produces lower level liquid wastes (LLW). Before the liquid wastes from THORP containing low levels of radioactivity are discharged to the sea from THORP and the storage ponds they are treated in the Segregated Effluent Treatment Plant (SETP). The Enhanced Actinide Removal Plant (EARP) chemically treats liquid wastes, including those from THORP, to remove certain radioisotopes called actinides which emit alpha particles.14 The treated liquid is then discharged to the sea. The Site Ion Exchange Plant (SIXEP) uses an ion-exchange system to remove some radioisotopes, particularly caesium- 137 and strontium-90, from liquid wastes before they are discharged into the sea.
3.10. Some of the fission products and plutonium, americium and uranium and other radioisotopes are discharged into the marine environment in liquid form, others are released into the atmosphere, and yet others are removed for storage as waste. The main radioisotopes discharged in liquid form into the sea from THORP are: tritium, carbon-14, and cobalt-60; the fission products ruthenium-106, iodine-129, and caesium-137; and plutonium 241. The main radioactive isotopes discharged in gaseous form into the atmosphere from THORP are tritium and the fission product krypton-85. The MOX plant itself discharges radioactive liquids into the sea and radioactive gases into the air.
3.11. The bulk of the radioactivity discharged by the operation of the THORP plant arises from four of its constituent facilities: (1) the THORP Receipt and Storage facilities (building B-560,), including (2) the ponds in which the spent fuel is stored before reprocessing (buildings B-27 and B-310 at Sellafield), and which are open to the atmosphere; (3) the THORP reprocessing plant, including the Head End, in which the spent fuel is dissolved and put into the chemical separation plant (B-570); and (4) the Waste Encapsulation Plant in which the stainless steel cans containing the fuel element are encapsulated into cement after being removed from the fuel elements (building B-368).15 This can be seen from the Flow Chart at Plate 13.
3.12. Aerial discharges from THORP are discharged to the atmosphere through a stack attached to the THORP reprocessing plant (B-570). The stack serves the THORP Head End and Chemical Separation Plant (B-570) and the THORP Receipt and Storage facility (B-560) as well as the Sellafield MOX Plant (B-572).16
13 See chapter 2, para 2.16. 14 Alpha radiation consists of heavy particles (helium nuclei) which, because they collide with other particles, rapidly lose their energy, and accordingly have very limited penetrative ability over distances of the order of a millimetre (they are unable to penetrate the skin). They are particularly dangerous if inhaled or swallowed. 15 Environment Agency, Radioactive Substances Act 1993, Explanatory Document, Appendices And Annexes, Appendix 6, 30 July 2001. 16 Ibid. 54
(2) THE OVERALL AMOUNTS OF THE DISCHARGES FROM SELLAFIELD
3.13. The amounts of radioactivity discharged in the past from Sellafield in liquid and aerial forms are shown in the tables, taken from Appendix 8 (tables 4 and 5). The figures are for 2000,17 which appears to be a typical year.
Table 1: Liquid Discharges from Sellafield to the Irish Sea Radio-isotope 2000 Actual Discharge Notional Full (TBq/year) Throughput Discharges (TBq/year) H-3 2,300 11,000 C-14 4.6 16 Co-60 1.2 3.8 Sr-90 20 36 Zr/Nb-95 0.19 2.0 Tc-99 44 64 Ru-106 2.7 26 I-129 0.47 1.2 Cs-134 0.23 1.1 Cs-137 6.9 18 Ce-144 0.55 1.8 Np-237 0.03 ? Pu-alpha 0.11 0.26 Pu-241 3.2 5.9 Am-241 0.03 0.12
17 Vol 2, Appendix 8, p 410. 55
Table 2: Air Emissions from Sellafield Radio isotope 2000 actual Notional full discharge Throughput discharges (Gq/year) (GBq/year) H-3 220,000 550,000 C-14 2,900 2,500 S-35 120 170 Ar-41 2,500,000 2,800,000 Co-60 0.033 0.15 Kr-85 74,000,000 300,000,000 Sr-90 0.054 0.17 Ru-106 1.1 22 Sb-125 0.18 0.5 I-129 25 50 I-131 2.7 1.4 Cs-137 0.57 0.72 Pu-alpha 0.044 0.11 Pu-241 0.27 0.96 Am-241 0.043 0.085
3.14. The figures in the two preceding tables demonstrate that there will be a clear increase in the contamination of the Irish Sea by adding significantly to the radioactive material that is discharged into it by the facilities at the Sellafield site. The middle column in each table sets out the actual discharges from the entire Sellafield site in 2000. The figures in the right-hand columns represent the discharges from the entire Sellafield site that would occur if the THORP plant were run at full capacity (as BNFL hope to do) and plant B-205 (the Magnox reprocessor) were also to run at full capacity. Even excluding tritium (H-3), which is officially regarded as radiologically insignificant (but recently has been considered to be of greater radiological significance),18 this would represent a near- threefold increase in liquid emissions from the Sellafield site into the Irish Sea, and a greater increase in atmospheric emissions.
3.15. The present case is not concerned with the operation of the Magnox reprocessor as such: it is concerned only with the impact of the MOX project. The impact specifically attributable to that project is accordingly considered more closely in the following section.
18 See Harrison, J D, Khursheed, A and Lambert, B.E. Uncertainties in dose coefficients for intakes of tritiated water and organically bound forms of tritium by members of the public, Radiation Protection Dosimetry, 98, 299, (2002). 56
(3) THE EFFECTS OF THE MOX DEVELOPMENT ON THE AMOUNTS OF THE DISCHARGES FROM SELLAFIELD
3.16. If the United Kingdom had decided not to proceed to the authorisation of the MOX plant, there would be: a. no planned or unplanned liquid or aerial discharges from the MOX plant itself; b. no other radioactive wastes from the MOX plant; c. no planned or unplanned liquid or aerial discharges from the THORP plant arising from the reprocessing of spent nuclear fuel for the purposes of producing plutonium for the MOX plant; d. no other wastes produced from such reprocessing by the THORP plant; e. no planned or unplanned liquid or aerial discharges or other wastes arising from the EARP and other associated waste treatment plants as a result of treatment of THORP wastes arising from (c) and (d) above; f. no planned or unplanned liquid or aerial discharges or other waste arising from the storage of radioactive wastes arising from (c) and (d) above; g. no planned or unplanned liquid or aerial discharges or other wastes arising from vitrification of THORP wastes arising from (c) and (d) above; h. no transports through the Irish Sea of spent nuclear fuel or other radioactive substances destined for the MOX plant, either directly or indirectly via reprocessing through the THORP plant; and i. no transports through the Irish Sea of MOX fuel for delivery to customers.
3.17. A proper appraisal of the environmental effects of the authorisation of the MOX plant must, therefore, assess all of those factors. Each of them involves either planned releases of radioactive material, or an increased risk of unplanned releases of radioactive material, attributable to the consequences of the authorisation of the MOX plant.
Planned Discharges of Radioactive Isotopes from MOX Production
3.18. The detailed explanation of the planned discharges arising from the MOX project appears in Appendix 8.
3.19. The MOX manufacturing process involves the production of radioactive wastes in solid, liquid and gaseous forms. A significant proportion of these liquid and gaseous wastes will be discharged directly into the Irish Sea, or enter that sea via the atmosphere. The information relating to the planned discharges of radioactive substances directly from the MOX plant is limited and incomplete. 57
3.20. Until 3 October 2001 what was known to Ireland about the discharges from the MOX plant itself was drawn principally from BNFL’s 1993 Environmental Statement.19 This confirmed that the MOX plant will produce “various solid radioactive wastes, principally in the form of plutonium contaminated material” comprising process waste and maintenance waste, in an annual amount of “about 120” cubic metres.20 The 1993 Environmental Statement does not state what precisely this waste will be, or where precisely it will go for treatment or storage. The Environmental Statement provides merely that: “[I]t is intended to route all [plutonium contaminated waste] to the proposed new Water Treatment Complex (WTC) where it will be compacted to originally half its original volume before being prepared for ultimate disposal in a manner consistent with the Company’s and the UK’s strategy for the disposal of intermediate level waste.”21
3.21. The 1993 Environmental Statement confirmed also that the MOX plant will produce liquid radioactive effluents, and that: “effluent arising from floor washings and fuel assembly wash will be about 107 m3/yr; this will be discharged, via THORP, to existing site facilities. The arisings will be conditioned as necessary to make them suitable, after monitoring, for discharge to sea.”
This confirms that radioactive wastes will be discharged directly into the Irish Sea. It does not indicate the types or quantities of radioactivity of the radionuclides associated with this waste.
3.22. The 1993 Statement further confirms that the MOX plant “will have the potential for different levels of radioactive contamination and airborne activity”.22 It states that some of the categories of ventilation extracted from the plant will be discharged into the atmosphere, and that they will have a radioactive content.23
3.23. The United Kingdom’s October 2001 Decision, authorising the commissioning of the MOX plant, confirms this. It states that “the aerial and liquid discharges and the solid wastes arising from the operation of this practice at the SMP can be managed within the constraints of the existing Sellafield discharge authorisations.”24 The 2001 Decision gives no indication that any regard was had, or any account taken, of any legal requirements except the United Kingdom’s “existing Sellafield discharge authorisations”. Those authorisations had been granted in 1996.
3.24. In the absence of complete information it is difficult for Ireland to challenge in any way the material provided in the 1993 Environmental Statement concerning discharges from the MOX plant. The United Kingdom has consistently refused to provide Ireland with any further information, including details such as the capacity and likely output of MOX
19 The 1993 Environmental Statement is at vol 3(3), Annex 103. For a review of that Environmental Statement, see vol 2, Appendix 6, and Chapter 7. 20 Ibid, para 4.34-35 (vol 3(3), pp 29-30). 21 On the inadequacies of the Statement see Chapter 7, paras 7.62 et seq. 22 Supra. note 22, at para 7.34-35. 23 Ibid, para 7.41. 24 The October 2001 Decision, para 60 (emphasis added), vol 3(2), Annex 92. 58 fuel, and the relevant period of operation of the MOX plant. Ireland has obtained independent advice on estimates of likely liquid and aerial discharges from the MOX plant.
3.25. The figures relating to estimated discharges from the MOX plant at the Sellafield site are set out in Table 3 and Table 4 below, which are taken from Appendix 8 (Tables 11 and 12, at p. 413).
Table 3: Annual liquid discharges from the SMP plant Radioisotope Discharge Liquid discharge (GBq/year) from THORP (GBq/year) Plutonium-241 0.0113 4000 Other plutonium 0.533 700 Americium-241 0.000102 300
Table 4: Annual aerial discharges from the SMP plant Radioisotope Discharge Liquid discharge (GBq/year) from THORP (GBq/year) Plutonium-241 0.0566 6.8 Other plutonium 0.0268 0.272 Americium-241 0.000512 0.197
3.26. In the context of the MOX authorisation process the United Kingdom has provided no information at all as to the environmental consequences which will arise as result of the engagement of the THORP plant in support of the MOX plant. There has never been an environmental impact assessment of the THORP plant. In the absence of any information provided by the United Kingdom, Ireland is left to estimate what the consequences of the THORP plant will be, in particular as concerns radioactive discharges.
Planned Discharges of Radioactive Isotopes from THORP and Other Associated Facilities
3.27. In addition to the discharges from the MOX plant itself, one must take into account the discharges that would emanate from the THORP plant and the facilities (EARP, etc) associated with it.
3.28. Those discharges represent a significant part of the liquid discharges of radioactivity from the Sellafield site. For instance, the THORP plant on full throughput would account for about 70% of caesium-137, about 70% of tritium, about 40% of iodine- 129, about 30% of carbon-14, and about 30% of strontium-90 emitted from Sellafield as a whole.25
25 See vol 2, Appendix 8, p 415. See also Environment Council, BNFL National Stakeholder Dialogue, Plutonium Working Group Report, 10 November 2000. 59
3.29. The aerial discharges present a similar picture. The THORP plant on full throughput would account for about 90% of krypton-85, nearly 100% of iodine-129, about 30% of carbon-14 and about 10% of tritium emitted from Sellafield as a whole.26
Consequences for Liquid and Aerial Discharges From Sellafield for Three Different Operational Scenarios
3.30. This section identifies that part of the planned pollution from Sellafield that is attributable to the MOX project. They do so by considering the estimated discharges that would result in three alternative scenarios, in each of which the MOX project is wholly or partly removed from the calculation. The detailed account of these scenarios appears in Annex 8. The three scenarios are:
Scenario 1: If the MOX Plant does not operate and the THORP Plant closes down
Scenario 2: If the MOX Plant operates and THORP reprocesses the base load of 7,000 tonnes of heavy metal of spent fuel at full capacity and then closes down between 2007 and 2010
Scenario 3: If the MOX Plant operates normally and THORP continues to reprocess spent fuel at full capacity for one further contract period of ten years and then closes down in about 2018
Scenario 1: Consequences for Liquid and Aerial Discharges from Sellafield if the MOX Plant Does Not Operate and the THORP Plant Closes Down
3.31. If the MOX plant were not to operate, the economic justification for the continued operation of the THORP plant would disappear, and the contributions of the liquid and aerial discharges from the THORP plant to the total liquid and aerial discharges from Sellafield would eventually become zero.
3.32. On the basis of the data available to Ireland, it is reasonable to estimate that if the MOX plant and THORP ceased to operate, there would be a dramatic reduction in the amount of radioactive emissions compared with the scenario in which the MOX project is fully implemented:27 • the amount of tritium in the liquid discharges for Sellafield would be about 30% of the amount if the MOX project is fully implemented; • the amount of carbon-14 in the liquid discharges would be about 70%; • the amount of cobalt-60 in the liquid discharges would be reduced to almost zero; • the amount of strontium-90 in the liquid discharges would be about 70%; • the amount of iodine-129 in the liquid discharges would be about 60%; • the amount of caesium-137 in the liquid discharges would be 30%; • the amounts of plutonium-241 and americium-241 in the liquid discharges would be reduced to close to zero.
26 Vol 2, Appendix 8, p 415. 27 Ibid, p 414. 60
• the amount of tritium in the aerial discharges from Sellafield would be about 90%; • the amount of carbon-14 would be about 70%; • the amount of krypton-85 would be about 10%; and • the amount of iodine-129 would be close to zero.
Scenario 2: Consequences for Liquid and Aerial Discharges from Sellafield if the MOX Plant Operates and THORP Reprocesses the Base Load of 7,000 Tonnes of Heavy Metal of Spent Fuel At Full Capacity and then Closes Down Between 2007 And 2010
3.33. As at March 2002, about 2,500 tonnes of heavy metal (tHM) out of the 7000 tHM of baseload contracts have still to be reprocessed in THORP.28 The past performance of the THORP plant suggests that an average future annual throughput of about 650 tHM per year could reasonably be expected, even though BNFL is aiming to reprocess about 1,000 tHM per year.29
3.34. The contribution made by the MOX and THORP plants to emissions from Sellafield were described earlier. Those reductions would, on this scenario, arise in approximately 5 years’ time.
Scenario 3: Consequences for Liquid and Aerial Discharges from Sellafield if the MOX Plant Operates Normally and THORP Continues To Reprocess Spent Fuel At Full Capacity for One Further Contract Period of Ten Years and Then Closes Down in about 2018
3.35. BNFL hope that it will be able to negotiate further contracts which will enable it to operate THORP for at least one more contract period of ten years. Their ambition is to secure further reprocessing contracts (perhaps another 7,000 tHM or so of spent fuel). The authorisation of the MOX plant is expected to improve prospects of further contracts for THORP. Without MOX there would most likely be no more contracts.
3.36. Current contracts will keep THORP operational until between 2007 and 2010, the end point depending on how effectively THORP works from now onwards. If another 7,000 tHM are reprocessed, beyond the period 2007-2010, the discharges from Sellafield would continue, augmented by the emissions from the MOX and THORP plants, at the higher rate for a further decade. That period might be further extended, if more contracts could be secured and the plants remained operational.
3.37. As a result of further reprocessing requirements associated with the production of MOX fuel, the total amount of radioactivity discharged to the sea, over the time it takes to reprocess the additional 7,000 tHM, would be about 170 TBq (excluding tritium) and about 45,170 TBq (including tritium).
28 See Chapter 2, para 2.20. 29 It can be noted that the highest throughput since THORP opened in 1994 was 879 tHM. The remaining 2,500 tHM (to complete the 7,000 tHM baseload) are likely to be reprocessed by about 2007. Some say that it will take until 2010. 61
Unplanned Discharges from MOX, THORP and Associated Facilities, and Other Factors That Could Affect Discharges from Sellafield
3.38. There is an evident risk that unplanned discharges may occur. This could be the result of operational failure, or natural phenomena such as earthquakes, or deliberate action such as sabotage or terrorist attack.30 The Sellafield site has been the subject of numerous operational failures in the past.31
3.39. The problem of potential terrorist attacks upon the Sellafield site is discussed in Chapter 8.
3.40. Discharges into the Irish Sea could also result from unplanned discharges from transport activities attached with the authorisation of the MOX plant. As stated earlier, the operation of the MOX Plant and the THORP reprocessing plant involves the transport of radioactive material by sea.32 It involves the transport of spent fuel from foreign reactors to THORP for reprocessing and the transport of vitrified high level waste back to its countries of origin. If the MOX plant operates, it will involve the transport of MOX fuel back to the States which own the plutonium used to make the MOX. This could involve many shipments containing unknown amounts of radioactive materials. At the time of writing, the United Kingdom has still not given any indication of the probable number of such shipments. All the voyages start or end in the Irish Sea.
3.41. The proposed shipments themselves have not been subject to any environmental impact assessment. As is explained in chapters 7 and 8, the shipments give rise to two sets of problems. One concerns the risk of an accident at sea, leading to the loss of the nuclear cargo. The cargo is carried on specially constructed ships in specially designed flask, built in each case to conform to international standards. The standards applicable to the flasks, however, appear to have been conceived in the context of land-based accidents. It is unclear whether they are adequate for the particular characteristics of accidents at sea.33 The ship construction and equipment standards are also thought by some to be inadequate,34 the older ships having been constructed around twenty years ago and having undergone no major rebuild since then.
3.42. The second set of circumstances concerns the risk of terrorist attack on the ships. That, too, is addressed in chapter 8.35
30 For a detailed consideration of the possibility of terrorist attacks, see Confidential Annex. 31 See Chapter 2, para 2.70 et seq. 32 See Chapter 2 para 2.36 et seq. 33 See Chapter 8. See also Deere Jones Report, vol 3(3), Annex 106; and McLoughlin Report, vol 2, Appendix 12, p 556. 34 McLoughlin Report, vol 2, Appendix 12, p 556. See also Deere Jones Report, vol 3(3), Annex 106, p 278. See also Information paper submitted to the special consultative meeting of the IMO by BNFL, Cogema and FPC, 1996, page 10. 35 Para 8.206. 62
B. RADIATION PATHWAYS FROM THE MOX PLANT AND ASSOCIATED FACILITIES AND SHIPMENTS, AND IMPACTS UPON HUMANS AND THE ENVIRONMENT
(1) RADIATION PATHWAYS
3.43. There are various pathways by which radioactive emissions from the MOX plant and associated facilities and shipments may reach the Irish Sea.
3.44. Planned liquid discharges from the Sellafield site are piped into the Irish Sea, via a holding tank from which they are released when the oceanographical conditions are appropiate.
3.45. Unplanned liquid discharges may occur through spillages on the site, as a result of accident or sabotage. Liquid discharges may also result incidentally from other actions. For example, in the case of an accident, water sprayed on to fires in certain areas may itself become radioactive, or wash out radioactive particles. That water may reach the Irish Sea by being ducted through a rainwater or other drainage system, or by running off the ground directly into the sea or into the River Calder (which runs through the site) and thence into the sea, or by seeping into the ground and thence into the River Calder or the Sea.
3.46. Atmospheric discharges are taken up into the atmosphere. They may be bought down to earth as particles, or in rain-water, or absorbed directly into river- or sea-water.
3.47. Particles of solid wastes may be washed into the sea with liquid effluents. Any solid material discharged into the atmosphere may also be washed into the sea by precipitation. Solid wastes may also enter the sea as a result of an incident involving one of the transport ships.
3.48. Some radioactive particles tend naturally to stay in suspension in sea water. That is why some radioisotopes discharged into the Irish Sea are washed out by sea currents and find their way to the coasts of Norway. Other particles, such as plutonium, sink to the seabed. These particles naturally tend to remain in the Irish Sea, where they are particularly concentrated in certain mud patches in the western sector. It is thought that one of the major causes of occasional increases in concentrations of certain radionuclides in the water in the Irish Sea is the remobilisation into the water column of particles that had previously sunk into the sediment. As Dr Nies states:
“The highest levels and inventories of various long-lived radionuclides such as Cs- 137, Pu-238, 239, 240, and Am-241 in sediments can be found in fine grained sediments in the eastern part of the Irish Sea. These radionuclides can be measured down to more that 40 cm depth. This contamination is now the main source of radionuclides in seawater due to remobilisation into the water phase.”36
3.49. Radioactivity in seawater finds its way ashore in three main ways. Some is blown ashore in sea spray. Some dries out on coastal beaches and mud-flats, and is then blown inland as dried particles on the wind. Some comes ashore by being taken up into the food chain. Contaminated objects could also carry radioactivity ashore.
36 See Nies Report, vol 2, Appendix 4, p 188. 63
(2) THE EFFECTS OF DISCHARGES INTO THE IRISH SEA
3.50. The projected discharges from the Sellafield site will deliberately add to the existing contamination of the Irish Sea. They will, for example, increase the estimated 200–250kg of plutonium that has been disposed of in the Irish Sea over recent decades. That contamination is in itself a major cause of concern. It plainly amounts to a degradation of the marine environment. In fact, the Irish Sea is one of the most highly polluted sea areas in the world.37 As Professor Salbu states:
“The Irish Sea is the most contaminated marine ecosystem in the world. The estimated sea inventory of plutonium-isotopes and the estimated total transport of plutonium-isotopes via the North Channel amount to about 70% of the total discharges. Thus, about 30% per cent of the estimated total discharges of plutonium are unaccounted for. About 90% of plutonium in the Irish Sea is contained in the sediments.”38
3.51. That degradation is irreversible in the human scale. The half-life of the plutonium – (that of plutonium-239 is approximately 24,400 years— and the relative immobility of particles deposited in the semi-enclosed waters of the Irish Sea is such that the much the greater part of the radioactivity that is already there, and of that which is currently being added to the sea, will remain there way beyond any foreseeable future. The consequences of this in the unforeseeable future are necessarily themselves unforeseeable.
3.52. The fact that consequences are unforeseeable or unknown does not mean that they can be ignored. It is self-evident that radiation is hazardous, that radioactive contamination of the seas is a problem that cannot be brushed aside, and that there are considerable uncertainties as to its effects on humans and the environment. It must be addressed. That is the point of the precautionary principle, as is explained in chapter 9.39 But there is already clearly foreseeable, and demonstrable, harm resulting from the contamination of the waters; and that clearly demands some response.
3.53. There are two distinct categories of threats to life resulting from the degradation of the marine environment of the Irish Sea that may be distinguished. First, there is the effect of the radioactivity upon the marine life of the Irish Sea; and secondly, there is the effect of the radioactivity upon humans.
Effects upon Marine Life
3.54. As far as the effects upon the marine life are concerned, the overall levels of radioactivity in the seawater of the Irish Sea itself, taken as a whole, do not appear to be yet so harmful that an average consumption of fish caught in the Irish Sea exposes the consumer to dangerous levels of radiation. That is not, however, an appropriate or intelligent way of approaching the question of the extent of the degradation of the marine environment and the consequences for marine life.
37 See Salbu Report, vol 2, Appendix 2, p 113. 38 Ibid. 39 Chapter 9, paras 9.79-9.86. 64
3.55. The effects of radiation on non-human biota are less well studied than the effects on human health. There is clear evidence that some species are affected more than others.40
3.56. This is partly a matter of oceanography. Concentrations of contaminants vary across the Irish Sea.41 For instance, there is evidence that the Irish Sea gyre traps radioactive contaminants in the breeding grounds of the commercially-important Nephrops. It is also partly a matter of biology. For example, mussels and winkles tend to accumulate transuranic elements to a greater extent than fish and crustaceans, probably because of their filter-feeding habit.42 Technetium (largely from the Sellafield B-205 plant), reaches very high levels in seaweed and in lobster tail muscle and mussels and oysters.43
3.57. There is considerable uncertainty and lack of knowledge concerning the effects of low-dose radiation on marine life. It may have seriously harmful effects, as recent studies of the effects of low-does radiation on humans indicate.44
Effects on Humans
3.58. While some population groups, such as fishermen and sailors, are particularly exposed to the radioactive contaminants in the Irish Sea because of their physical proximity to them, the population as a whole receives its exposure largely from consuming fish caught in the sea, and from inhaling or ingesting wind-borne particles blows from sea- spray or drying beaches and mud-flats.45
3.59. The levels of radioactivity in fish caught in the Irish Sea are, in general, not so high that at present they fall above the levels that are officially regarded as representing a serious risks to human health. Nor are the levels of radioactivity resulting from wind-spray and airborne particles from drying mud-flats.
3.60. There are, however, serious and increasing concerns about the effects of low-dose radiation, and also concerns that clusters of cases of, for example, leukaemia may have some connection with radioactive emissions from the Sellafield plant. These concerns are explained below.46
40 See Salbu Report, vol 2, Appendix 2, p 129. 41 See Nies Report, vol 2, Appendix 4, p 184. 42 See Salbu Report, vol 2, Appendix 2, p 129. 43 Ibid, p 132. 44 See below, paras 3.58-60. 45 See Salbu Report, vol 2, Appendix 2, especially at p 129. 46 See Heather O. Dickensen and Louise Parker, Leukaemia and Non-Hodgkin’s Lymphoma in Children of Male Sellafield Radiation Workers, International Journal of Cancer, 99, 437-444, (2002). 65
(3) THE EFFECTS OF RADIATION
3.61. Radiation causes damage to human health in a number of ways. Radiation carries energy which when it passes through the human body, heats it up and may damage it. Radiation may also have effects at the cellular level. Some radioisotopes may be absorbed by organic material, such as DNA, and the radiation from them may damage the DNA and produce a genetic effect. This can cause genetic mutations or cancer.47
3.62. It should be emphasised that there is no such thing as a safe dose of radiation. There is some evidence that the decrease in harmful effects on human health as the radiation doses decreases does not continue at very low doses of radiation. In other words, very low doses of radiation may produce significantly more harmful effects than a straightforward extrapolation from the effects at high doses (which is the basis upon which current determinations of “safe” doses of radiation are made) would suggest.48
3.63. The question is controversial, but there are suggestions that exposure to low-levels of radiation may cause oxidative stress in cells, which predisposes them to sustain mutations that arise randomly. These effects are not readily evident from research that has concentrated on the effects of radiation on individuals, rather than at the cellular level. This is an area of particular concern to Ireland, given the high level of uncertainty.49 As Professor Liber states:
“I think that the genetic risk from very low dose radiation exposure could be considerably higher that previously estimated.”50
Others suggest that radiation-induced genomic instability may be an important effect, arising when radioisotopes like plutonium or tritium are taken up by DNA and when they decay damage the DNA molecule. This damage may cause mutations which show up, not in the next generation but several generations later.
3.64. The uncertainties concerning the effects of low dose radiation are one of the main areas of scientific controversy in the field of radiology. The present trend is, however, towards a downward revision of the limits of radiation dose to which people should be exposed, particularly for vulnerable groups such as children. For example, in 1999 the World Health Organization published new guidelines on reference levels on radiation doses for different population groups. The levels regarded as acceptable for the most sensitive group (neonates, infants, children, adolescents to 18 years and pregnant and lactating women) was reduced from 100 milliGray (mGy) avertable dose to the thyroid to 10 mGy, i.e., a reduction by a factor of 10. This reflects a growing understanding as to the effects of exposure to low-levels of radiation. As Dr Mothersill states:
“[…] in the last ten to fifteen years it has become apparent that low doses of radiation can cause subtle effects in cells surviving the dose, which may not become apparent for many, many cell generations.”51
47 See Mothersill Report, vol 2, Appendix 3; and Liber Report, vol 2, Appendix 5. 48 Liber Report, vol 2, Appendix 5, p 3; Mothersill Report, vol 2, Appendix 3. 49 Ibid. 50 Vol 2, Appendix 5, p 191. 51 Vol 2, Appendix 3, p 161. 66
3.65. The fear of radiation imposes its own costs. It affects demand for a wide range of goods and services, from fish and fishing to tourism.
3.66. While much attention is focused upon doses of radiation (and that is what the United Kingdom relies upon almost exclusively), the approach reflects only one aspect of the environmental impact of radioactive pollution. An area may become very heavily and irreversibly, polluted by radioactivity; but if the reference population is distant from it or visit it only rarely, doses to individuals may be low. The lowness of the dose may conceal the practical destruction of a natural resource.
C. USE OF ABATEMENT TECHNOLOGIES
3.67. Liquid and aerial discharges are considerably higher than is necessary, given the know-how and technology at present available. These are not being fully utilised, apparently because of the cost. The estimated discharges from the planned MOX fabrication facility at Savannah River in the United States show that MOX can be produced with emissions that are practically zero.
3.68. There are available technologies (known as abatement technologies), the use of which by BNFL could significantly reduce and/or eliminate the liquid and aerial discharges of radioisotopes from THORP (and of B-205, the Magnox plant).
3.69. In relation to the THORP plant, the question of abatement technologies has been addressed by the United Kingdom’s Radioactive Waste Management Advisory Committee in its Advice to UK Ministers on the Radioactive Waste Implications of Reprocessing, provided in November 2000. The Executive Summary concludes: “[I]n terms of seeking to reduce the activity of discharges, the situation is somewhat more complex. Again, it is difficult to see how any significantly extended reprocessing programme could be compliant with the Government’s proposed OSPAR objectives unless substantial advances in abatement technology can be achieved.”52
3.70. Notwithstanding this advice, within a year the United Kingdom decided in its Decision of 3 October 2001 to proceed to the authorisation of the MOX plant, and the consequential extended reprocessing activity at THORP plants. In reaching that Decision no consideration appears to have been given to the use of abatement technologies, or other retentive technologies.53
3.71. In April 2002 the Royal Society, in its submissions to the United Kingdom Government on “Managing Radioactive Waste Safely”, provided the following advice: “The problem of disposal of existing radioactive waste is serious and urgent […]. Changes are essential […]. The ever more stringent targets imposed under the North Atlantic (OSPAR) Convention makes passivisation increasingly difficult and expensive.
52 Vol 3(2), Annex 98, p 522. 53 See Chapter 9. 67
During the last 50 years the nuclear industry has assumed that passivisation of nuclear waste is a simple matter of engineering, based on straightforward scientific principles. It also seems to have been assumed that such solutions could be implemented rapidly while nuclear waste was being produced. The industry therefore seems to have regarded treatment of waste as of secondary importance, and to have focused its efforts on countering what it saw as unfounded hostile public opinion and on economic concerns. […] We conclude: • Changes in waste management are essential regardless of whether a new generation of nuclear power stations generates fresh volumes of wastes; • Industry and government have placed insufficient emphasis on continued technical developments as a basis for improved waste management […]; • The current waste management regime falls short of that which could be achieved through the use of currently available technologies; • In this interim period, BATNEEC (best available technologies not entailing excessive cost) should be adopted;”54
3.72. The United Kingdom’s Radioactive Waste Management Advisory Committee and The Royal Society recognise the importance of alternative technologies, and their availability. The Report of Dr Frank Barnaby indicates a range of technologies which are available to reduce liquid discharges and aerial emissions from THORP.55
3.73. These are described in Appendix 8 and at Chapter 9.56 The application of abatement technologies could significantly reduce discharges of inter alia carbon-14, ruthenium-106, strontium-90, tritium, krypton and plutonium/americium and improving the effectiveness of the EARP plant would improve significantly the removal of caesium- 137 and strontium-90 from discharges.
54 Vol 3(2), Annex, 99, pp 524-5. 55 Vol 2, Appendix 8, pp 418 et seq. 56 At paras 9.120 and 9.165. 68 69
CHAPTER 4
THE DISPUTE
4.1. The UNCLOS dispute between Ireland and the United Kingdom crystallized in October 2001 with the Decision by the United Kingdom to recognise that the MOX plant was “justified” and to proceed to authorise its commissioning and operation. The roots of the dispute, however, go back much further. Its history includes the circumstances under which the United Kingdom permitted the THORP plant to operate without ever having been subject to an environmental assessment, and the manifest inadequacies of the environment statement prepared in relation to the MOX plant, in 1993. Indeed, the 1993 MOX environmental statement is at the heart of this dispute. It failed properly to address the environmental consequences of the MOX plant. It failed altogether to address the environmental consequences of the extension of the operating life of the THORP plant. It failed to address the question of international transports, and the implications of further waste streams for the Sellafield site.
4.2. Subsequently, in the period 1997-2001, the United Kingdom engaged in a process of “justification” of the MOX plant which was not transparent and failed to take account of Ireland’s concerns, including requests for further information. The United Kingdom decided that the MOX plant was economically “justified” and would make some £200 million profit over its life, but in so doing excluded the £470 million capital costs of constructing the plant. The United Kingdom also refused to provide Ireland with information as to which costs had been included and excluded in the process of justification, including costs relating to environmental and safety standards. This failure to co-operate provoked Ireland into initiating proceedings under the 1992 OSPAR Convention to obtain access to information.
4.3. When the United Kingdom authorised the operation of the MOX plant, in October 2001, it did so on the basis of a discharge regime which had been authorised for the Sellafield site as a whole in 1998. That discharge regime did not take into account the environmental standards reflected in inter alia the 1982 UNCLOS or the 1998 Sintra Ministerial Declaration.
4.4. Finally, the MOX plant was authorised three weeks after the events of 11 September 2001. This raised serious concerns on the part of Ireland as to the adequacy of safety and security arrangements, both in relation to the MOX plant on the Sellafield site itself and the international transports associated with the authorisation of the MOX plant.
4.5. The dispute therefore concerns serious procedural violations of UNCLOS by the United Kingdom, which have engendered violations of the substantive requirements of UNCLOS. The second part of the Memorial addresses the procedural violations relating to environmental impact assessment (Chapter 7) and non-cooperation with Ireland (Chapter 8), and then the substantive violations relating to the failure by the United Kingdom to take adequate steps to prevent pollution of the Irish Sea (Chapter 9). This Chapter describes chronologically, the background to the dispute and its crystallization in October 2001, as well as subsequent developments. 70
A. THE THORP PLANT
4.6. As set out above, the THORP plant was initially authorised by the United Kingdom in the early 1990s.1 It has never been subject to an environmental impact assessment.2 It forms part of the present dispute because the authorisation of the MOX plant increases the operation and extends the life of the THORP plant, but without considering its environmental impacts.
B. THE MOX ENVIRONMENTAL STATEMENT: 1993
4.7. On 28 July 1993 Ireland wrote to the United Kingdom authorities seeking details of the plans for the proposed MOX plant, and called for a full environment impact assessment to be undertaken in accordance with the relevant legal requirements.3 In October 1993, the United Kingdom Department of the Environment informed Ireland that BNFL had confirmed that it would, in fact, be preparing an Environmental Statement in accordance with the Town and Country Planning (Assessment of Environment Effects) Regulations 1988.4 On 19 October 1993 BNFL gave notice that a planning permission application had been made to Copeland Borough Council. In support of its Planning Application, BNFL submitted an Environmental Statement.5 The content of the 1993 MOX Environmental Statement is set out in Chapter 7.6
4.8. In July 1994 Ireland made submissions to the Copeland Borough Council. Ireland made several observations about the Environmental Statement, which it noted was “remarkably concise for a project of this nature.”7 Ireland identified a series of material omissions in the information supplied by BNFL in the Statement, which it considered to be inadequate. Ireland’s environmental concerns, as expressed to the United Kingdom in 1994, are fully described in Chapter 7.8 Ireland’s expressed concerns also extended to the economic case for the MOX plant and the security implications of the plant, as well as its interdependence with nuclear reprocessing at the THORP plant. Ireland stated that “because [the MOX plant] assumes the availability of some facilities at THORP, […] its environmental effects and consideration of any benefits should also form part of the wider THORP Public Inquiry.”
Ireland stressed that, during the THORP Public Consultation process, BNFL had stated that the economic benefits of operating THORP could be enhanced by, inter alia, the “inclusion of the economic benefits of projects conditional on THORP going ahead e.g.
1 Chapter 1, para 1.47. 2 Chapter 7, para 7.62 et seq; See also the Review of BNFL’s Environmental Statement for the Sellafield MOX Plant, Mr. William Sheate, vol 2, Appendix 6. 3 Cited from Ireland’s submissions to the Copeland Borough Council on the proposed Sellafield Mixed Oxide Plant, vol 3(1), Annex 8. 4 In the UK, these regulations implement EC Community Directive 85/337/EEC on the assessment of certain public and private projects on the environment. 5 BNFL’s 1993 Environmental Statement is set out at vol 3(3), Annex 103. 6 Chapter 7, paras7.33 et seq. 7 Ireland’s submissions to the Copeland Borough Council on the proposed Sellafield Mixed Oxide Plant are set out at vol 3(1), Annex 8. 8 Chapter 7, para7.50 et seq. 71
MOX fuel manufacture”. Notwithstanding Ireland’s concerns the local authority granted planning approval and construction of the MOX plant commenced.
C. THE DISCHARGE AUTHORISATIONS
4.9. In authorising the MOX plant the United Kingdom has relied on discharge authorisation for the Sellafield site as a whole. These authorisations were granted prior to the 1998 proposed decision of the Environment Agency.9 The 1998 discharge authorisations were set at a level that took no account of the United Kingdom’s substantive obligations under the 1982 UNCLOS. These UNCLOS obligations require the following standards to be applied: (1) a standard of necessity to prevent, control and reduce pollution (having regard to the needs of the receiving environment); (2) a standard requiring minimization of releases to the fullest extent possible (having regard to available technologies and practices); and (3) a standard requiring implementation of international rules and standards (having regard to international norms). In meeting its obligations, the United Kingdom is thereby required to have regard to the quality of the Irish Sea, to all available technologies and practices, and to applicable and relevant international norms. By basing its discharge authorisation on levels set in 1998 the United Kingdom failed to have regard to its obligations under UNCLOS. This is addressed in Chapter 9.10
D. “JUSTIFICATION” AND THE OSPAR DISPUTE: 1997-2001
4.10. The United Kingdom held five rounds of public consultations before reaching the Decision of 3 October 2001 on the “justification” of the MOX plant. The consultation were based around two independent reports – the PA Report and the ADL Report. However, the two reports were heavily censored on alleged grounds of “commercial confidentiality”, making it impossible for the reader to assess on an objective basis whether the conclusions in the Reports were objectively justifiable and reasonable, whether the costs of environmental protection had been adequately taken into account, and whether the proposed MOX facility was economically “justified”. Indeed, this now appears to be accepted by the United Kingdom: one of the United Kingdom’s expert witnesses in the OSPAR arbitration proceedings, Mr Wadsworth states that: “In the case of BNFL the information classed as commercially confidential principally relates to the inputs into the financial model supporting the economic case for the MOX plant together with the related outputs.”
Dr Gordon Mackerron (Ireland’s expert witness in those proceedings) points out that this is– “an admission that without the information sought, the economic case for the SMP cannot be assessed […] This goes contrary to Article 6 of the Directive 80/836/EURATOM and Article 6 of Directive 96/269.”11
9 The Environmental Agency’s Proposed Decision 1998, vol 3(2), Annex 95 10 See paras 9.75-169. 11 See the Second Mackerron Report, vol 2, Appendix 11, paras 1.1 et seq; see also the United Kingdom Counter-Memorial, Appendix B, para B.1.1. 72
Ireland, who has a material interest in the environmental consequences of the SMP, is unable to assess, without the information sought, whether there ever was an economic justification to the SMP. The statement by David Wadsworth confirms this.”
THE CONSULTATION PROCESS
4.11. From February to April 1997, the United Kingdom Environment Agency held a first public consultation on the “justification” of the proposed MOX plant. During the course of the consultation concerns were raised inter alia about the lack of information made available to the public on the case for the proposed MOX plant. The United Kingdom decided to obtain an independent opinion as to BNFL’s economic case for the proposed MOX plant. The Environment Agency appointed a private company – PA Consulting Group (“PA”) – to carry out an independent assessment of the economic justification of the MOX plant and to prepare a report on the basis of which the public consultation could be carried out. Ireland took part in the first round of public consultation.12
4.12. In December 1997, the United Kingdom published a “public domain” version of the PA Report, which excluded certain material on alleged grounds of “commercial confidentiality”.13 This Public Domain PA Report formed the basis of a second public consultation held from January to March 1998. Around 100 responses were received to the second consultation, including a response from Ireland, again requesting a full copy of the PA Report.14
4.13. In October 1998, following the second public consultation, the Environment Agency concluded that plutonium commissioning, full operation and decommissioning of the proposed MOX plant was “justified” and proposed draft decisions on inter alia the justification of the proposed MOX plant. The draft Agency decision was forwarded to the UK Secretary of State for the Environment, Transport and the Regions and the UK Minister of Agriculture, Fisheries and Food (“the UK Ministers”).15
4.14. In June 1999, the UK Ministers reached a preliminary decision that the evidence indicated that the proposed MOX plant was economically justified. However, the Ministers considered that the amount of information which had been excluded from the 1997 Public Domain Report was more than strictly necessary. They decided to publish a fuller version (the 1999 Public Domain version), which was to be the basis of a further consultation.
4.15. This revised report was the basis for a third public consultation from July to August 1999.16 The 1999 Public Domain version was similar to the 1997 version, save that the former included in place of the data removed on grounds of “commercial confidentiality” a description of its nature and an explanation as to why it had been removed. Ireland made a
12 Ireland’s submission to the United Kingdom in the first public consultation dated 4 April 1997, vol 3(1), Annex 9. 13 PA Consulting Group, Final Report – Assessment of the BNFL’s Economic Case for the Sellafield MOX Plant, Version Released December 1997. 14 Ireland’s submission to the United Kingdom in the second public consultation dated 16 March 1998, vol 3(1), Annex 11. 15 The Environmental Agency’s Proposed Decision 1998, vol 3(2), Annex 95. 16 PA Consulting Group Report (version released June 1999), vol 3(2), Annex 96. 73 further submission on 30 July 1999, once again asking for a full copy of the PA Report.17 It was not provided.
4.16. The PA Report concluded that the MOX plant will make a profit over the life of the plant. In reaching this conclusion, however, the PA Report took no account of sunk capital costs.18
4.17. The 1999 Public Domain Version of the PA Report is heavily censored. It omits inter alia all numerical information relating to assumptions as to production capacity and costs, sales volumes and prices, contractual commitments, price and decommissioning costs, start-up date, plant maintenance down time, fixed costs, level of manning, operational costs, and the quantity of fuel already on site. Ireland is also concerned by the removal of information relating to the number of transports that will arise as a result of the authorisation of the MOX plant, and how the costs of these transports (including the costs of protective measures to be taken by the Irish Government, if any) are to be assessed and integrated into the overall economic analysis. The resultant gaps in the information make it impossible for a reader of the 1999 Public Domain PA Report to assess whether the PA Report’s conclusions are objectively justifiable and reasonable, whether the MOX plant should be authorised to operate, and whether discharges into the Irish Sea and further international transports of radioactive materials in and around the Irish Sea should be permitted as “justified”. The excised information also makes it impossible for Ireland to assess whether, inter alia, the costs of security and safety measures and insurance against the consequences of accidents have been fully taken into account.
4.18. It appears that these costs may not have been taken into account. Ireland was surprised – and concerned – to read in the United Kingdom’s OSPAR Counter-Memorial that “the PA and ADL Reports do not contain information on the costs of meeting safety standards. This is apparent from the texts of those Reports, which identify the nature of any information excised”.19
In fact, it is not apparent from the ADL or PA Reports that safety costs have been treated in this way. The United Kingdom’s statement in the Counter-Memorial is ambiguous, and suggests that safety costs may not have been taken into account at all in the exercise of “justifying” the MOX plant. Ireland would welcome clarification, as those safety standards – and their costs – are material to the protection of the marine environment of the Irish Sea. Their exclusion would therefore be a matter of considerable concern, particularly since it has already been acknowledged by the United Kingdom that transport costs were excluded.
4.19. In September 1999 reports surfaced about the falsification of safety checks at the MOX Demonstration Facility (see Chapter 2, paras 2.78 et seq). This resulted in a further delay (of nearly two years) in the authorisation of the MOX plant. BNFL has recently confirmed that the costs of the MOX falsification scandal are £113 million.20
17 Ireland’s submission in the third public consultation dated 30 July 1999, vol 3(1), Annex 16. 18 It states that: “As the costs of building the plant are already sunk, [the Reference and Base] cases examine only the further costs and revenue streams that would arise from commissioning and operating the SMP or withdrawing from the MOX fuel fabrication business”, vol 3(2), Annex 96, para 1.1. It is now accepted that capital costs of construction are £470 million, according to the latest ADL Report, vol 3(2), Annex 97. 19 United Kingdom Counter-Memorial, para 1.16 at footnote 9. 20 See Articles regarding BNFL’s finances, vol 3(3), Annex 117. 74
4.20. In March 2001, following the data falsification scandal and concerns relating to the size of the international market in MOX fuel, the United Kingdom initiated a fourth public consultation on the justification of the MOX plant. The consultation was based on the 1999 Public Domain PA Report and two new documents prepared by BNFL (on the economic case for MOX).21 Once again, Ireland requested a complete and uncensored copy of the PA Report to enable it to make a meaningful contribution to the consultation.22 This was refused.23
4.21. In view of the United Kingdom’s repeated refusal to provide the information requested Ireland commenced arbitration proceedings on 15 June 2001 against the United Kingdom under Article 9 of the OSPAR Convention.24 The proceedings sought to obtain a complete copy of the PA Report in order to obtain full information on inter alia production volumes, international transportation and environmental costs. Ireland considers that without this information it is not able to assess whether the authorisation and operation of the MOX plant is compatible with the United Kingdom’s international obligations.
4.22. In the meantime, the United Kingdom decided to commission a new report on the “justification” of the MOX plant – from Arthur D. Little (ADL), another private company – and to carry out a further public consultation. The ADL Report was submitted to the United Kingdom on 15 June 2001.25 On 27 July 2001 the United Kingdom Department for the Environment, Food and Rural Affairs and the United Kingdom Department of Health initiated a fifth public consultation on justification. Ireland made another set of submission to the fifth public consultation. Subsequently, in order to be able to make a meaningful contribution, Ireland requested a full copy of the public domain version of the Report.26 This too was refused.
4.23. As with the PA Report, the ADL Report deals with the justification of the MOX facility. It too ignores all capital and related costs of constructing the proposed plant, which it estimates to be in the region of £470 million.27 Nevertheless it concludes that the proposed plant will produce a “net economic benefit” over its life of between £199 million and £216 million.28 In reaching this conclusion, however, the ADL Report takes no account of sunk capital costs (£470 million).29 It is accepted by the United Kingdom that the plant will never recoup its capital costs. Not only will the plant therefore contribute to added pollution of the Irish Sea (as described in Chapter 3), it will also lose the company (or the British taxpayer) more than £250 million. Putting it another way, BNFL (or the British taxpayer) are paying more than £250 million for the benefit of being able to discharge radioactive waste from the MOX and THORP plants into the Irish Sea.
4.24. Like the PA Report, the basis upon which the ADL Report reaches its conclusion cannot be assessed objectively, because the public domain version of the ADL Report omits, among other information: total projected MOX production capacity; prices; total
21 BNFL’s business case for the MOX plant, vol 3(3), Annex 104. 22 Letter of Ireland dated 22 May 2001 at vol 3(1), Annex 27. 23 United Kingdom’s letter dated 5 September 2001, vol 3(1), Annex 31. 24 See Statement of Claim, vol 3(1), Annex 72. 25 The 2001 Public Domain ADL Report is at vol 3(2), Annex 97. 26 Ireland’s letter dated 7 August 2001, vol 3(1), Annex 29. 27 Vol 3(2), Annex 97, para 5.2. 28 Ibid, Executive Summary. 29 Supra note 18. 75
MOX volumes; all information as to the identity of customers, the status of contracts with them, and the volume contracted for; operating costs; transport revenues and costs; transport information; and any details of the projected life span of the MOX facility.
4.25. In June 2001 (with a reminder in August 2001) Ireland asked the United Kingdom to confirm that it would not authorise the operation of the MOX plant pending the conclusion of the OSPAR arbitration proceedings.30 On 13 September 2001 – some three months after the request – the United Kingdom declined to provide such a confirmation.31
THE JUSTIFICATION DECISION OF 3 OCTOBER 2001
4.26. On 3 October 2001 the United Kingdom adopted its decision on the justification of the MOX plant.32 That decision relied on the ADL Report. The United Kingdom decided that the MOX plant was economically justified, that the benefits from the plant outweighed the detriments to health, the environment and otherwise. The decision briefly considers the environmental impact of the MOX plant, concluding that: “Therefore, the Secretaries of State consider that the radiological detriments which would arise in association with the manufacture of MOX fuel from plutonium separated in THORP and belonging to foreign customers would be very small and that any effects on wildlife would be negligible. They also consider that the aerial and liquid discharges and the solid wastes arising from the operation of this practice at the SMP can be managed within the constraints of the existing Sellafield discharge authorisations. The Secretaries of State are satisfied that the manufacture of MOX fuel can be carried out within discharge limits which will effectively protect human health, the safety of the food chain and the environment generally. They are satisfied that regulatory measures can be taken to ensure that the SMP operates safely and within such discharge limits.”33
The Decision makes no reference to any other environmental consequences associated with the authorisation of the MOX plant, in particular the extension of the life of the THORP plant, or the implications for the management of radioactive wastes at Sellafield.
IRELAND’S EFFORTS TO OBTAIN INFORMATION
4.27. Since 1997 Ireland has unsuccessfully sought to obtain complete copies of the PA Report and, since July 2001, the ADL Report. Ireland has sought the information because it is concerned about the impact of MOX on the environment, particularly from the intensification of activities at THORP. Ireland also wishes to ensure that the justification process is taken in a transparent manner, allowing proper public scrutiny of the economic justification, or otherwise, of the MOX plant, given the potential effect on the marine environment of the Irish Sea. Ireland is also concerned to ensure that all relevant costs (including in particular environmental costs) have been taken into account.
30 Ireland’s letters dated 15 June 2001 and 7 August 2001, vol 3(1), Annex 28 & 29. 31 United Kingdom’s letter dated 13 September 2001, vol 3(1), Annex 32. 32 Decision of the United Kingdom dated 3 October 2001, authorising the MOX plant, vol 3(2), Annex 92. 33 Ibid, paras 60 and 61. 76
4.28. In its submissions in April 1997, Ireland again expressed its opposition to the extension of nuclear activities at Sellafield. It set out the links between reprocessing at THORP and the MOX plant. It stated inter alia that:
“the justification now being put forward for using plutonium and producing MOX fuel is to create the rationale for continued reprocessing at Sellafield. BNFL is now promoting MOX use as the solution to the continuing oversupply of plutonium, to which its own operations daily contribute. The bulk of the plutonium for the MOX plant is likely to come from the fuel reprocessed from the UK Magnox reactors at Sellafield and from the new THORP plant.”
Ireland’s Department of Public Enterprise stated that it was opposed to the commissioning of the MOX Plant on the grounds that it would extend the life of the nuclear reprocessing industry. This view is shared by others, including Norway.34 The submission also expressed the Department’s concerns about the additional radioactive marine discharges from Sellafield into the Irish Sea arising from MOX production. It then set out specific observations on inter alia the consultation process; the transport of weapons-grade plutonium to Sellafield; waste management strategy; and the implications of the MOX plant for the economic, environmental, and safety case at Sellafield as a whole.35
4.29. In March 1998, in the context of the second public consultation, Ireland made specific comments on the economic case for the MOX plant. Ireland also protested at the omission of data from the PA Report: “The report does not release information on cost and price data and on plant process and performance. As a consequence, many of the assertions made in the report are unverifiable and BNFL’s economic case is not open to public review.”36
In its conclusions, the Department of Public Enterprise stated that it believed that the PA Report had failed to fulfil the purpose of this further consultation, namely, to provide in the public domain sufficient commercial information to justify the commissioning and operation of the plant.
4.30. On 30 July 1999, in the context of the third public consultation, Ireland requested that the United Kingdom provide it with “an unedited and full copy of the [1999 Public Domain] PA Report”.37 Ireland also submitted that the information upon which the United Kingdom was basing its decision did not provide a proper basis for determining whether the proposed MOX plant was justifiable, the information which had been provided did not indicate that the proposed MOX plant was economically viable, and that the proposed MOX plant (and international transports of plutonium related thereto) raised other issues of European and international law. It received no response to that request, and no explanation as to the failure to respond or to provide the information. As no response was forthcoming, a reminder was sent on 18 November 1999.38
34 See Chapter 1, para 1.68. 35 Ireland’s submission to the United Kingdom dated 4 April 1997, in the context of the first public consultation, vol 3(1), Annex 9. 36 Ireland’s submission to the United Kingdom dated 16 March 1998, in the context of the second public consultation, vol 3(1), Annex 11. 37 Ireland’s submission to the United Kingdom dated 30 July 1999, in the context of the third public consultation, vol 3(1), Annex 16. 38 Ireland’s letter dated 18 November 1999, vol 3(1), Annex 18. 77
4.31. By its letter of 17 December 1999, the United Kingdom refused to make available the expurgated version of the PA Report on the grounds of commercial confidentiality.39
4.32. In a letter dated 25 May 2000, Ireland’s Department of Public Enterprise wrote to the United Kingdom Department of the Environment, Transport and the Regions explaining that it had been advised by external counsel that there was no justification in law for the refusal of the United Kingdom to provide Ireland with the information it had requested, namely “the information deleted from the PA Report”.40 The letter went on to state that the refusal “is inconsistent with the United Kingdom’s obligations inter alia under Directive 90/313/EC (on freedom of access to information on the environment) and the 1992 OSPAR Convention, which entered into force for Ireland and the United Kingdom on 25 March 1998.” The letter reiterated a request for information relating inter alia to production and sales volumes, start dates and transports that were omitted from the PA report.
4.33. No immediate written response was received from the United Kingdom to that request. The dispute was discussed bilaterally and at the meeting of the OSPAR Commission in June 2000. The dispute was not resolved.
4.34. By letter dated 27 October 2000 (i.e. more than six months after Ireland’s request in its letter of 25 May 2000) the United Kingdom responded with a refusal to make available to Ireland the information requested pursuant to Article 9 of the OSPAR Convention. The United Kingdom letter stated: “[T]he UK Government does not wish to prejudice the commercial interests of an enterprise by disclosing commercially confidential information. We note the views set out in your 25 May letter, but nevertheless believe that disclosure of the information which you have sought would cause such harm.”41
4.35. On 9 February 2001, the Irish Minister of State wrote to the UK Minister of the Environment reiterating the request for information. His letter stated: “In conclusion, it now appears that a dispute exists between Ireland and the United Kingdom as to the interpretation and application of Article 9 of the OSPAR Convention. Once again I invite your Government to disclose the information requested in the letter of 25 May, or alternatively to propose appropriate means for resolving our differences. In the absence of information or an early resolution of our differences my Government reserves its right to invoke the procedures envisaged by Article 32 of the Convention.”42
4.36. On 15 May 2001, officials from Ireland’s Nuclear Safety Division of the Department of Public Enterprise met in London with officials of the UK Department of the Environment, Transport and the Regions. The meeting had been requested to inform the United Kingdom that Ireland was preparing an application under Article 32 of the OSPAR Convention, that the matter was being put formally to Government, and that a continuing refusal by the United Kingdom would result in the initiation of Article 32 proceedings.
39 United Kingdom’s letter of 17 December 1999, vol 3(1), Annex 19. 40 Ireland’s letter dated 25 May 2000, vol 3(1), Annex 23. 41 Letter of the United Kingdom dated 27 October 2000, vol 3(1), Annex 24. 42 Ireland’s letter dated 9 February 2001, vol 3(1), Annex 25. 78
4.37. On 21 May 2001 the United Kingdom Minister of State responded to the letter from the Irish Minister of State dated 9 February 2001, apologising for the delay. No information was provided, but the Minister expressed the hope that he would be able to provide a substantive reply “shortly”.43 No substantive reply was received until 13 September 2001, nearly six months after the request.44 That reply provided no reasons beyond a general assertion of confidentiality (see paragraph 4.43 below).
4.38. Also in May 2001, in the context of the fourth public consultation, Ireland requested once again an unexpurgated copy of the 1999 Public Domain PA Report. In his letter of 22 May 2001 the Irish Minster of State wrote: “It is the view of the Irish Government that the information contained in the Consultation Papers and the absence of critical information relating to primary economic factors including critical data relating to other cost factors such as transportation and security, makes it impossible for the reader to assess the justification of the [MOX plant] as is required under the [Directive 96/29/EURATOM]. […] The Irish Government in its submissions in regard to the previous Consultation Rounds sought the unedited and full copy of the PA Consulting Report. In the absence of this information from the Consultation Papers, which is critical to assessing the justification of the SMP, the Irish Government is reserving its right to pursue legal measures for the release of the information.”45
No response was received until 5 September 2001.46 (See para 4.42 below.)
4.39. As stated above, on 15 June 2001 Ireland initiated proceedings against the United Kingdom under the 1992 OSPAR Convention.47 On that day, the United Kingdom published the public domain version of the ADL Report, the Report that was the basis for the decision of 3 October 2001. Ireland subsequently amended its Statement of Claim to include the ADL Report.48 The arbitration is ongoing, and a hearing is expected to take place in October 2002, under the auspices of the Permanent Court of Arbitration in The Hague.
4.40. On 7 August 2001, in the context of the fifth public consultation, Ireland requested an unedited copy of the ADL Report: “Due to the omission of economic data from the public domain versions of both the PA and ADL reports it is not possible for us to make an independent analysis of the economic justification of the proposed plant. It is our opinion that the omissions cannot be justified on the grounds of commercial confidentiality. In this context I would be very grateful if your Department could pass on to my Department a copy of the full version of the ADL report. In the event that a copy of the full report is not provided Ireland reserves the right to amend and extend its
43 Letter of the United Kingdom dated 17 May 2001 at vol 3(1), Annex 26. 44 Letter of the United Kingdom dated 13 September 2001, vol 3(1), Annex 33. 45 Letter of Ireland dated 22 May 2001, vol 3(1), Annex 27. 46 Letter of the United Kingdom dated 5 September 2001, vol 3(1), Annex 31. 47 Supra, para 4.21. 48 Ireland’s Amended Statement of Claims and Grounds which accompanied the Request, vol 3(1), Annex 72. 79
application in the OSPAR arbitration filed on 15 June last to include the information omitted from the ADL report.”49
4.41. Ireland also requested the United Kingdom not to authorise the proposed MOX plant pending the outcome of the OSPAR arbitration proceedings.50 The United Kingdom declined to give an undertaking not to authorise the MOX plant.
4.42. By its letter dated 5 September 2001, the United Kingdom explained the basis for the refusal to accede to Ireland’s request for information. This constituted the most “substantive” response to Ireland’s request. The letter said inter alia: “[M]y authorities do not accept that the information excised from the public version of the ADL Report is information falling within the scope of Article 9(2) of the OSPAR Convention. […] [E]xcisions have been made on the grounds that publication of that information would cause unreasonable damage to the commercial operations of [BNFL] or to the economic case for the Sellafield MOX plant itself.”51
4.43. By letter dated 13 September 2001, Mr. Michael Wood, Legal Adviser at the Foreign and Commonwealth Office set out the United Kingdom’s position in greater detail.52
4.44. On 3 October 2001 the United Kingdom decided that the MOX plant was economically justified, paving the way for its commissioning and operation (see paras 4.26 above). The 2001 Decision relies heavily on the environmental statement provided by BNFL (in 1993) and the 1998 Discharge Authorisations.
UNCLOS
4.45. Ireland first raised its specific concerns with regard to the UNCLOS in its submission of 30 July 1999.53 Subsequently, in its letter of 23 December 1999, Ireland again set out in detail its concerns about the MOX plant by reference to clearly identified provisions of the UNCLOS.54 In both these communications Ireland expressly reserved its rights under the UNCLOS. The United Kingdom did not respond at all to the first letter, and merely acknowledged receipt (three months later) of the second letter. Since 1999 the United Kingdom has had ample time to address Ireland’s concerns, both generally and specifically in relation to the UNCLOS. But instead it has chosen to ignore them.
4.46. At a meeting held in London on 5 October 2001, Ireland notified the United Kingdom that, following the 3 October 2001 decision “justifying” the MOX plant, it considered the United Kingdom to have acted in violation of various provisions of the UNCLOS, as well as various other international instruments binding upon the United
49 Ireland’s submission to the United Kingdom dated 7 August 2001, in the context of the fifth public consultation, vol 3(1), Annex 29. 50 Letter of Ireland dated 27 August 2001, vol 3(1), Annex 30. 51 Letter of the United Kingdom dated 5 September 2001, vol 3(1), Annex 31. 52 Letter of the United Kingdom dated 13 September 2001, vol 3(1), Annex 33. 53 Ireland’s submission to the United Kingdom dated July 1999, in the context of the third public consultation, vol 3(1), Annex 16. 54 Ireland’s letter dated 23 December 1999, vol 3(1), Annex 20. 80
Kingdom. At that meeting Ireland informed the United Kingdom that it considered that a dispute existed between them in relation inter alia to the interpretation and application of various provisions of the UNCLOS.
4.47. By letter dated 16 October 2001 Ireland reiterated its view that with the authorisation of the MOX plant on 3 October 2001 a dispute or disputes had arisen with the United Kingdom under UNCLOS and other international instruments binding upon the United Kingdom.55 The letter stated: “Ireland considers that the United Kingdom is in breach of its obligation to protect and preserve the marine environment and has failed to take all measures necessary to ensure that activities under its jurisdiction are so conducted as not to cause damage by pollution to Ireland (as required by Articles 192 to 194 [UNCLOS]).”
The letter went on to identify various provisions of UNCLOS that Ireland considered had been violated by the United Kingdom. The letter also stated: “These international obligations become all the more significant in light of the terrorist attacks occurring in the United States on 11 September 2001. Ireland considers that it is imperative, in view of these attacks and renewed threats by terrorist groups, that further precautionary measures need to be taken to protect nuclear installations such as the MOX plant from attacks of this kind, as well as the proposed international transports by sea of radioactive materials to and from the MOX plant. Ireland is deeply concerned that possible terrorist attacks on the MOX plant and on sea transportations of radioactive material pose a very serious threat to Ireland and to its marine environment.”
4.48. In that letter Ireland invited the United Kingdom “to suspend with immediate effect the authorisation of the MOX plant, and to take the necessary steps to halt with immediate effect all transportations of radioactive material in and around the Irish Sea to and from the MOX plant.” Ireland also reserved its right to institute proceedings before appropriate international courts or tribunals without further notice. Ireland indicated its availability to proceed to an exchange of views as envisaged by Article 283 of the UNCLOS, notwithstanding the fact that the United Kingdom “appears strongly committed to the authorisation and early operation of the MOX plant”.
4.49. The United Kingdom responded by letter dated 18 October 2001 from the Secretary of State at the UK Department for Environment, Food and Rural Affairs (DEFRA).56 The United Kingdom did not respond to Ireland’s request that the authorisation of the MOX plant be suspended with immediate effect, merely noting that the United Kingdom “Environment Agency has concluded that the radiological detriments associated with the manufacturing of MOX fuel would be very small and that any effects on wildlife would be negligible”. Once again the United Kingdom did not address the question of international movements of radioactive materials, including plutonium, associated with the MOX plant, or the increased threat of terrorist acts following events of 11 September 2001 and subsequently, or any of the points made by Ireland in relation to the specific provisions of UNCLOS identified in its letter of 16 October. The United Kingdom response simply stated that “[T]he UK is anxious to exchange views on the points you raise in your letter as soon as possible. In order to do so meaningfully we need
55 Letter from Ireland to the United Kingdom dated 16 October 2001, vol 3(1), Annex 34. 56 Letter of the United Kingdom dated 18 October 2001, vol 3(1), Annex 35. 81 to understand why the Irish Government considers the UK to be in breach of the provisions and principles identified in your letter.”
4.50. On 23 October 2001, the Irish Taoiseach received a letter from the United Kingdom Prime Minister indicating that the United Kingdom was intending to proceed with the MOX plant.
4.51. By letter dated 23 October 2001, Ireland stated that it considered that no useful purpose could be served by any exchange of views unless the United Kingdom indicated a willingness to suspend authorisation or operation of the MOX plant.57 By letter dated 24 October 2001 the United Kingdom declined to indicate any willingness to suspend authorisation or prevent operation of the MOX plant pending the resolution of the dispute with Ireland.58 With that letter it became clear that the dispute could not be settled by exchange of views and negotiations.
4.52. Accordingly, by letter dated 25 October 2001 Ireland notified the United Kingdom that a situation of urgency now existed (given the imminence of the commissioning of the MOX plant) that views had been exchanged between the parties, and that it reserved its right to initiate UNCLOS proceedings without further notice.59 That evening Ireland initiated UNCLOS arbitration proceedings against the United Kingdom, alleging violations of a number of Articles of the Convention.
4.53. By letter dated 30 October 2001 Ireland asked the Secretary of State at the UK Department for Environment, Food and Rural Affairs (DEFRA) when the MOX plant was likely to be authorised and operational.60 No response was received. A reminder was sent on 6 November 2001.61
4.54. Before the United Kingdom responded, Ireland learned (not from the United Kingdom government) that BNFL planned to take “irreversible steps” to commence operations on or around 23 November 2001. This information was communicated by BNFL’s lawyers in the context of legal proceedings in the High Court in London (in which Ireland was not involved), by letter dated 17 October 2001.62 That letter stated: “Following the decision of the Secretaries of State on 3 October 2001, BNFL commenced with the consent of the [Nuclear Installations Inspectorate], the initial stages of plutonium commissioning, which it expects to complete on or around 15 November 2001. These involve the transfer of sealed plutonium containing materials into SMP in order to calibrate radiation monitoring equipment and test shielding. These initial stages are part of a commissioning programme which will lead to the opening of a plutonium can scheduled to take place on or around 23 November 2001, allowing plutonium to be fed into the process as a prerequisite to the manufacture of MOX fuel. The cost and complexities involved in reversing the commissioning of SMP will be very significantly increased once the plutonium can has been opened and plutonium introduced into the plant process.
57 Letter from Ireland to the United Kingdom dated 23 October 2001, vol 3(1), Annex 36. 58 Letter from the United Kingdom dated 24 October 2001, vol 3(1), Annex 37. 59 Letter from Ireland to the United Kingdom dated 25 October 2001, vol 3(1), Annex 38. 60 Letter from Ireland to the United Kingdom dated 30 October 2001, vol 3(1), Annex 39. 61 Letter from Ireland to the United Kingdom dated 6 November 2001 at vol 3(1), Annex 40. 62 Letter dated 17 October from BNFL’s lawyers regarding the operation of the plant, vol 3(3), Annex 120. 82
It is of vital commercial importance to BNFL that the completion of the commissioning programme for SMP and the commencement of active operations is not delayed and it is BNFL’s firm intention to proceed with the programme outlined above.”
4.55. On 6 November 2001 Ireland learned that the date of 23 November 2001 had been pushed back to 20 December 2001.63
4.56. On 15 November 2001, Ireland received a letter from the UK Secretary of State. The letter stated inter alia that the United Kingdom was unable to give an undertaking to delay the commissioning of the MOX plant.64
4.57. Ireland understands that the commissioning of the plant occurred on 20 December 2001.
PROCEEDINGS BEFORE THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA AND THE ORDER OF TRIBUNAL DATED 3 DECEMBER 2001
4.58. As indicated above, on 25 October 2001 Ireland instituted these arbitration proceedings against the United Kingdom, pursuant to Article 287 of UNCLOS. The written notification was accompanied by a Statement of Ireland’s claim and the grounds upon which it is based in accordance with Annex VII, Article 1 of UNCLOS (together referred to as the Statement of Claim). This was amended on 21 January 2002, and the amendment approved by the Annex VII Tribunal by its Order dated 2 July 2002.65
4.59. Ireland also stated that if, within 14 days of the institution of the Annex VII arbitration proceedings, the United Kingdom declined to take the measures requested by Ireland (to suspend the authorisation of the MOX plant and to stop international movements of radioactive materials associated with the MOX plant), Ireland would submit a request for Provisional Measures to the International Tribunal for the Law of The Sea (“ITLOS”) pursuant to Article 290(5) of UNCLOS. The United Kingdom did not take the measures requested. On 9 November 2001 Ireland submitted a Request for Provisional Measures along with its Statement of Case (together referred to as the Request for Provisional Measures) to ITLOS, pending the constitution of this Arbitral Tribunal constituted under UNCLOS, Annex VII (“the Annex VII tribunal”). The United Kingdom filed its written response on 15 November 2001, and by Order dated 13 November 2001, the President of ITLOS fixed dates for the hearing of the request.66
4.60. Hearings were held on 19 and 20 November 2001 in Hamburg. The written pleadings and a verbatim record of these proceedings are available at the ITLOS web site.
4.61. On 3 December 2001 ITLOS adopted its Order. It unanimously prescribed the following provisional measures:
63 Letter dated 5 November 2001 in the United Kingdom judicial proceedings, vol 3(3), Annex 121. 64 Letter dated 15 November 2001 from the United Kingdom, vol 3(1), Annex 41. 65 UNCLOS Annex VII Arbitral Tribunal Order No.1, 2 July 2002, vol 3(1), Annex 6. 66 ITLOS, Order 2001/5 of 13 November 2001. 83
“Ireland and the United Kingdom shall co-operate and shall, for this purpose, enter into consultations forthwith in order to: (a) exchange further information with regard to possible consequences for the Irish Sea arising out of the commissioning of the MOX plant; (b) monitor risks or the effects of the operation of the MOX plant for the Irish Sea; (c) devise, as appropriate, measures to prevent pollution of the marine environment which might result from the operation of the MOX plant.”67
4.62. ITLOS also decided that each party was required to submit not later than 17 December 2001 an initial report “upon the steps it has taken or proposes to take in order to ensure prompt compliance with the measures prescribed.”68
DEVELOPMENTS SUBSEQUENT TO THE ITLOS ORDER
4.63. In compliance with the Order of 3 December 2001, and with a view to initiating the co-operation and consultation which ITLOS prescribed in its Order, Ireland invited the United Kingdom to attend a meeting in Dublin with a view to establishing the parameters for consultation between the parties.69 The letter also stated that Ireland considered that the commissioning of the plant, and the consequential intensification of the use of the THORP plant, prior to the fulfilment of the obligation of co-operation ordered by the International Tribunal could aggravate and extend the dispute between the parties.
4.64. Ireland annexed to its letter a list of questions concerning the nature and implications of the MOX project for the Irish Sea. The letter was premised on that part of the ITLOS Order which stated that “[…] in the view of the Tribunal, prudence and caution require that Ireland and the United Kingdom co-operate in exchanging information concerning risks or effects of the operation of the MOX plant and in devising ways to deal with them, as appropriate” (para. 84). Many of the questions had previously been posed by Ireland, but Ireland had not received responses from the United Kingdom. Ireland hoped that the meeting might provide an opportunity for an initial exchange of views on aspects of the consequences of the commissioning of the MOX plant, in particular in relation to the exchange of further information, on monitoring of risks or effects, and on devising measures to prevent pollution of the marine environment.
4.65. By its letter of 7 December 2001, the United Kingdom agreed to attend the meeting. With regard to the questions asked by Ireland, the letter stated “that many of [the questions] relate to matters outside the scope of the dispute submitted by Ireland to the Annex VII tribunal.”70
4.66. On 11 December 2001 a meeting was held between the parties in Dublin. During the course of the meeting it became clear that the parties interpreted the provisional measures prescribed by the ITLOS in different ways.71
67 Order of the ITLOS of 3 December 2001, vol 3(1), Annex 3 68 See vol 3(1), Annex 5. 69 Letter from Ireland to the United Kingdom dated 5 December 2001, vol 3(1), Annex 44. 70 Letter from the United Kingdom in response dated 7 December 2001, vol3(1), Annex 45 71 Minutes of the meeting held on the 11 December 2001, vol 3(1), Annex 4. 84
4.67. On 17 December 2001 both parties submitted their Reports to the ITLOS on the steps taken or proposed to be taken to ensure prompt compliance with the measures prescribed in the Tribunal’s Order of 3 December 2001.72
4.68. Since the meeting on 11 December 2001, correspondence between the parties has focused on a number of issues, and two in particular: (1) information requested by Ireland, and (2) the transportation of radioactive materials to and from Sellafield in the light of the United Kingdom’ assurances to the ITLOS.
EXCHANGE OF INFORMATION BETWEEN THE PARTIES
4.69. As stated above, Ireland’s letter of 5 December 2001 was accompanied by a list of 55 questions regarding various aspects of the MOX plant. Ireland requested early answers to the same. While stating that it considered many of the matters addressed to fall outside the scope of the Provisional Measures Order, the United Kingdom’s letter in reply stated that it would respond as quickly as it could. Ireland was disappointed that no answers were forthcoming at the meeting of the parties on 11 December 2001.
4.70. On 17 December 2001, Ireland received responses to 16 of Ireland’s 55 questions. This was followed by a second batch of answers on 1 February 2002, and a third and final batch of responses was received from the United Kingdom on 21 March 2002.73 By letter dated 22 March 2002 Ireland reserved its position as to the adequacy of the United Kingdom’s responses to the questions.74
4.71. Ireland also sought clarification with regard to Question 35 which stated “What special measures have been taken to ensure the safe passage of [ships carrying radioactive material] to and from their destinations?” in the light of Article 4 and Annex 1 (Section 2(b)) of the 1980 Convention on the Physical Protection of Nuclear Materials. This provision requires the United Kingdom to ensure that transportation of the nuclear materials takes place “under constant surveillance by escorts and under conditions which assure close communication with appropriate response forces”. This clarification was sought, as the Answer provided by the United Kingdom made no reference to such “escorts”.75 Ireland was concerned to know if transports from Japan and Germany were “under constant surveillance by escorts”.
4.72. The United Kingdom’s response dated 11 April 2002 merely stated that “all transports of nuclear materials undertaken by the United Kingdom are carried out in full compliance with the [1980] Convention.”76 It did not provide any further details.
4.73. Reference is made to the 55 questions as to the answers provided by the United Kingdom as appropriate in this Memorial.
72 Report of Ireland to the ITLOS dated 17 December 2001, vol 3(1), Annex 5. 73 Letters from the United Kingdom dated 17 December 2001, 1 February 2002 and 21 March 2002 with responses to Ireland’s 55 questions, vol 3(1), Annexes 46, 47 and 57. 74 Ireland’s letter to the United Kingdom dated 22 March 2002, vol 3(1), Annex 58. 75 Ibid. 76 Letter from the United Kingdom dated 11 April 2002, vol 3(1), Annex 60. 85
TRANSPORTATION OF RADIOACTIVE MATERIALS TO AND FROM SELLAFIELD IN THE LIGHT OF THE UNITED KINGDOM’S ASSURANCES TO THE ITLOS AND IRELAND
4.74. During the course of the ITLOS hearings, and in response to the Tribunal’s question as to the extent to which the commissioning of the MOX plant would increase the transport by sea of radioactive materials to and from Sellafield, Counsel for the United Kingdom made inter alia the following undertaking: “[…] Before summer 2002 (at the earliest) there will be no additional marine transports of radioactive material either to or from Sellafield as a result of the commissioning of the MOX plant. I shall revert to that subject in a moment in order to avoid any possibility of misunderstanding over the use of terms.”77
He went on to state: “You have also heard a certain amount about the falsification of data incident at the MOX demonstration facility. It is a matter of public knowledge that the MOX fuel, which was the subject of that incident, is to be returned. It will not be returned to the MOX plant but to a storage pool. It is presently not anticipated that this will be returned until some time late next year. It is a matter for agreement with the Japanese authorities, among others. There will be no export of MOX fuel from the plant until summer 2002. There is to be no import to the THORP plant of spent nuclear fuel for conversion to the MOX plant within that period either. Indeed, the lead times for contracts of this kind are such that it is not likely to be anywhere near within that period. I have been asked by my Irish friends to be more precise in the use of these terms. I have deliberately spoken of “summer” rather than giving a fixed date because all of this is anticipation, although in some cases rather confident anticipation, of arrangements yet to be made but I have been told this afternoon that if one were to read the word October” for “summer” that would give acceptable greater precision.”78
4.75. The ITLOS noted and placed on record these undertakings regarding marine transports of radioactive material either to or from Sellafield. Its Order notes: “78. Considering that, at the public sitting held on 20 November 2001, the United Kingdom has stated that “there will be no additional marine transports of radioactive material either to or from Sellafield as a result of the commissioning of the MOX plant”; 79. Considering that at the same sitting the United Kingdom stated further that “there will be no export of MOX fuel from the plant until summer 2002” and that “there is to be no import to the THORP plant of spent nuclear fuel pursuant to contracts for conversion to the MOX plant within that period either” and clarified that the word “summer” should be read as “October”;”
4.76. Against this background, in February 2002 Ireland learnt that a German nuclear power utility (Gemeinschaftskraftwerk Neckarwestheim (GKN)), had announced its intention to make five shipments of spent fuel to Sellafield in 2002. The information was
77 See ITLOS, 20 November 2001, 3:00PM, Verbatim Record, P. 21, lines 40 et seq. 78 Ibid, p 26, lines 22 et seq. 86 not provided by the United Kingdom Government. It was reported that this spent nuclear fuel was to be reprocessed at the THORP plant, that the first such shipment was to take place in early February, and that further shipments were expected to be made in mid- March, mid-May and July. Ireland also learnt that licences had been issued by the German authorities in relation to the transportation of this nuclear waste from Neckarwestheim to Sellafield, according to a provisional timetable envisaging that three transports would occur before “mid-2002”.
4.77. At about this time, Ireland also learnt that a new German Nuclear Law adopted by the German Bundestag in December 2001 had been adopted by the Plenary Session of the German Bundesrat at its meeting on 1 February 2002. Ireland’s understanding is that the new Law provides, in effect, that shipments of spent nuclear fuel transported to the United Kingdom for reprocessing cannot return to Germany in the form of plutonium. It therefore appeared to Ireland that, in order to comply with the new German Nuclear Law and the policy of the German Federal Government, the spent nuclear fuel which was being shipped from GKN to Sellafield – scheduled to begin in February 2002 – were intended to be transformed into MOX Fuel at the MOX plant, and then returned to Germany. In this way the transportations are transports associated with the authorisation of the MOX Plant, in the sense that they could not have occurred if the MOX plant had not been authorised. This raised concerns about the undertaking which the United Kingdom had given to ITLOS.
4.78. Accordingly, Ireland addressed a letter dated 1 February 2002 to the United Kingdom.79 The letter set out Ireland’s understanding of the German Law and, in light of the United Kingdom’s undertaking at the ITLOS, asked the United Kingdom to confirm (1) that nuclear materials which were scheduled to be transported from the German nuclear plant to Sellafield in February 2002, March 2002, May 2002 and July 2002 would not be transformed into MOX fuel following their reprocessing at the THORP plant and (2) that the United Kingdom would ensure that, if there existed any intention or understanding that these nuclear materials were to be transformed into MOX fuel, their shipments to Sellafield would be delayed until after October 2002, in accordance with the United Kingdom’s undertaking to the ITLOS. The letter also asked the United Kingdom to provide, pursuant to the obligation to co-operate, complete information on all expected shipments of nuclear materials to Sellafield for reprocessing at the THORP plant (including country of origin and expected date of arrival) in order that Ireland may be satisfied that such materials are not to be transformed into MOX fuel.
4.79. The United Kingdom’s response of 6 February 2002 provided none of the assurances Ireland sought with regard to the German shipments. Nor did it provide any information about future shipments of nuclear materials to Sellafield for reprocessing at the THORP plant, or any other information about the scheduling of transports, their routes, timing and security arrangements. In fact the letter stated that: “[f]or obvious security reasons, and in accordance with the terms of the International Convention on the Physical Protection of Nuclear Materials, the [UK] Government does not make public detailed information about the timing of transports of nuclear materials”.80
79 Ireland’s letter dated 1 February 2002, vol 3(1), Annex 48. 80 Letter from the United Kingdom dated 6 February 2002, vol 3(1), Annex 49. 87
4.80. In Ireland’s opinion this constituted a further example of the United Kingdom’s failure to co-operate. Ireland was particularly surprised to be characterised as part of the “wider public”.
4.81. By a letter dated 27 March 2002, Ireland invited the United Kingdom to confirm that the transportations of nuclear materials from Germany and from Japan were taking place in accordance with the provisions of the 1980 Convention on the Physical Protection of Nuclear Materials. This inter alia provided that such transports are to be “under constant surveillance by escorts and under conditions which assure close communication with appropriate response forces.”81 Ireland requested full details regarding any proposed escorts for the transport under appropriate conditions of confidentiality.
4.82. At about this time (late March 2002), Ireland also learned that the shipment of the Japanese MOX fuel which was the subject of the data falsification scandal (Chapter 2, paras 2.78 et seq) was scheduled to take place in the early summer of 2002, apparently before October 2002, which was the date specified by the United Kingdom in its undertaking to ITLOS. Ireland’s letter also addressed this issue. It reminded the United Kingdom of its assurances to both the ITLOS and Ireland. Ireland requested the United Kingdom to inter alia confirm that the transportation of the said MOX fuel from Japan to Sellafield would not occur before “late” 2002 or October 2002. It also asked the United Kingdom about its plans for the subsequent use of this fuel.82
4.83. The United Kingdom replied by letter of 19 April 2002.83 With regard to the timing of the transportation of the tainted Japanese MOX fuel to the United Kingdom, the letter confirmed that the tainted MOX fuel was to be returned before October 2002. With regard to the use to which the tainted fuel would be put, the letter stated that “On arrival, the [tainted MOX fuel from Japan] will be placed in a storage pond at Sellafield”. The United Kingdom offered to discuss confidentially with Ireland information relating to the number of transports of MOX fuel.
4.84. By its letter dated 9 May 2002, Ireland responded to the United Kingdom’s letters dated 11 April 2002 and 19 April 2002.84 With regard to the United Kingdom’s letter of 11 April 2002 regarding security arrangements for the transportation of nuclear materials, Ireland stated that it considered the United Kingdom’s response inadequate and indicative of the United Kingdom’s continuing reluctance to co-operate with Ireland.
4.85. On the issue of the transport and the subsequent use of the tainted Japanese MOX fuel, Ireland drew the United Kingdom’s attention to certain documents of the relevant US and EURATOM authorities.85 These documents indicated that the US and EURATOM authorities (and presumably therefore the United Kingdom authorities) had knowledge (as early as September 2001) that the tainted Japanese MOX fuel was to be transferred from Japan to the United Kingdom “in the course of April through December 2002”. Ireland also requested a specific assurance that the tainted fuel would not arrive within British or Irish waters before October 2002.
81 Ireland’s letter dated 27 March 2002, vol 3(1), Annex 59. 82 Ibid. 83 United Kingdom’s letter dated 19 April 2002, vol 3(1), Annex 61. 84 Ireland’s letter dated 9 May 2002, vol 3(1), Annex 62. 85 See the Memorandum from Janice Dunn Lee, Office of International Programs, US Nuclear Regulatory Commission, to the Nuclear Regulatory Commissioners, 6 September 2001 with enclosures,vol 3(3), Annex 119. 88
4.86. On the issue of the subsequent use to which the tainted Japanese MOX fuel would be put, Ireland referred to the same US documents, which indicated that the fuel from Japan would not remain in “a storage pool” but would be returned to Japan as “fresh” MOX fuel.86 This appeared to be inconsistent with the information provided in the United Kingdom’s letter of 19 April 2002. It also appeared to differ from the content of the United Kingdom’s undertakings before ITLOS.87 Ireland’s letter pointed out that the only facility at Sellafield which is operational and capable of transforming the recovered plutonium into “fresh MOX assemblies” is the MOX plant.
4.87. The EU and US documents also refer to the existence of a “Security Plan” for transport of the tainted fuel back to the United Kingdom. Ireland, pursuant to the ITLOS Order on co-operation, requested an opportunity to examine, on a confidential basis, this “Security Plan” relating to the international transports of the tainted Japanese MOX fuel Ireland hoped to assess its implications for Ireland’s own safety and security plans. Ireland’s letter asked the United Kingdom whether any existing plans had been reviewed and amended in light of events on 11 September 2001. The letter also noted that Ireland’s requests for information from the United Kingdom, including clarification of undertakings and practices, remained outstanding.
4.88. On 17 May 2002, Ireland received three letters from the United Kingdom. The first pertained to the transport of the tainted fuel from Japan to the United Kingdom.88 The letter did not address a number of the specific issues which Ireland had raised in its earlier letter. The United Kingdom’s letter did, however, confirm that the tainted MOX fuel would arrive in the United Kingdom before October 2002.
4.89. A second letter of the same date related to the subsequent use of the tainted fuel on its return to the United Kingdom from Japan.89 The letter stated that “BNFL has yet to finalise precise plans for the management of the fuel.” It did not, however, address the question of the apparent differences between the statement made by the United Kingdom to the ITLOS and the information to be found inter alia in correspondence between the European Commission and the US Department of Energy, to the effect that the tainted MOX fuel will be processed in the MOX plant after storage.
4.90. The third letter of 17 May 2002 pertained to the estimated annual number of MOX fuel transports.90 The United Kingdom stated that it was willing to supply the estimated number of such transports, provided that Ireland undertook to respect the confidentiality of the information. The letter also invited Ireland to a meeting to exchange views on this matter.
86 Ibid, Enclosure 1, letter from Ms Trisha Dedik to Mr Ronald Hauber states: “Upon its return to British Nuclear Fuels, the material will be stored in an approved facility pending recovery of the plutonium contained in the unirradiated fuel assemblies. The recovered plutonium will be returned to Japan in the form of fresh MOX fuel assemblies.” The same formulation is to be found in the enclosure 1B, letter from Mr J. Santos Bento (European Commission) to the US Department of Energy, dating back to 20 July 2001. 87 Mr Plender’s statement to the ITLOS, that the tainted MOX fuel from Japan “will not be returned to the MOX plant but to a storage pool” (Verbatim Record, ITLOS/PV.01/09). 88 United Kingdom’s letter dated 17 May 2002, vol 3(1), Annex 64. 89 United Kingdom’s letter dated 17 May 2002, vol 3(1), Annex 65. 90 United Kingdom’s letter dated 17 May 2002, vol 3(1), Annex 63. 89
4.91. By its letter of 20 June 2002 Ireland responded to the United Kingdom’s letters of the 17 May 2002 and accepted the invitation to attend in a meeting on 25 June 2002. The letter stressed that Ireland required the requested information on the shipping and transport of nuclear materials in order to make adequate emergency and security preparations for the protection of the Irish Sea. The letter set out an agenda, explaining some of Ireland’s main concerns in respect of access to information on and coordination of preparations for shipments of nuclear materials. This included details of the estimated number of transports to and from Sellafield; conditions under which such transports were to take place, (having regard to the potential environmental impacts of such transports and the requirements of the 1980 Convention on the Physical Protection of Nuclear Material); particulars regarding emergency response equipment, personnel and measures to be taken in respect of shipboard emergency planning; the communication of emergency plans; prior notification and exchange of information on routes for shipments; and mechanisms for the exchange of regular information on the location of ships in transit within 200 miles of the Irish coast. Ireland also wished to discuss with the United Kingdom assurances of non-contamination of the marine environment, commitments to recover radioactive material in the event that ships carrying such materials are involved in an accident or incident and effective liability mechanisms currently in place and or planned.91
4.92. Ireland’s letter also raised the issue of extending beyond October 2002, the United Kingdom’s undertakings in relation to the operation of the MOX plant and of shipments to it. Ireland stated that it would prefer to reach an agreement with the United Kingdom on such an extension, rather than seek any Order from the Tribunal. In this regard Ireland stated that this issue could also be discussed at the meeting on the 25 June 2002 so as to ensure that any Order that the Tribunal might give in terms of paragraph 5 of the Statement of Claim was not defeated by any action taken by the United Kingdom prior to the date of such an Order.
4.93. With regard to the United Kingdom’s request that that Ireland maintain strict confidentiality over certain information imparted by the United Kingdom, Ireland stated that in relation to security-related matters its interests coincided with those of the United Kingdom, and that any information that the United Kingdom supplied would be covered under one or more of the areas covered by Section 24 of the Irish Freedom Of Information Act 1997. In respect of commercial confidentiality issues, the letter stated that Ireland was not a competitor or a customer of BNFL and had no commercial interest in any information and had no interest in passing any such information on to customers or competitors of BNFL.
4.94. Ireland’s letter indicated that its intention in coming to a meeting with the United Kingdom was to exchange views and information which would enable Ireland, and the United Kingdom, to make practical arrangements and develop co-ordinated contingency plans in advance of the arrival of shipments of nuclear materials including the MOX shipments from Japan.
4.95. Finally, the letter noted that the United Kingdom’s letters of 17 May 2002 did not adequately address Ireland’s concerns in relation to the proposed shipment of MOX fuel from Japan to the United Kingdom.
4.96. At the meeting on the 25 June 2002, the parties held discussions on how, in addition to employing the safeguards with the Annex VII Tribunal’s rules, Ireland might
91 Ireland’s letter dated 20 June 2002, vol 3(1), Annex 66. 90 protect the asserted confidentiality of the information under consideration. No agreement was, or has subsequently, been reached.
4.97. On 1 July 2002, the United Kingdom Environment Agency adopted a decision on the application of the Transfrontier Shipment of Radioactive Waste Regulations 1993, to the proposed return of the tainted MOX fuel from Japan.92 This stated that the MOX fuel in question could not be treated as waste because it was to be used to make MOX fuel. By its letter of 3 July 2002, Ireland expressed its surprise at this decision, in the light of the United Kingdom’s undertaking at ITLOS, and the earlier correspondence stating that the MOX fuel was to be put in storage. Ireland requested information about the various options identified with regard to the recovery of the materials.93
4.98. In response, the United Kingdom stated that the information supplied by BNFL to the Environmental Agency about options for managing the fuel upon its return to the United Kingdom was “commercially sensitive” and solely for the purpose of the Environmental Agency’s assessment.94
4.99. By letter of 15 July 2002, Ireland noted the United Kingdom’s remarks about the Environmental Agency’s decision, and reserved its position.
4.100. Ireland’s second letter of 15 July 2002 referred to the United Kingdom’s offer to disclose to Ireland, in confidence, information on the estimated number of shipments of MOX fuel.95 Ireland considers this information essential to make its own emergency and security preparations and to help ensure that the Irish Sea was subject to the greatest possible protection from further pollution from radioactive sources. The letter stated that as Ireland had not yet seen the information, it was not in a position to agree to the confidential or commercially sensitive nature of the information.96 Ireland reserved its position in this regard.97
4.101. The letter stated that Ireland, having carefully considered the matter, was unable to agree to the suggestion that it should give prior sight of its pleadings (or a portion of its pleadings) to the United Kingdom. Instead, Ireland suggested that the better course of action would be to put that portion of the argument and the specific information in question into a separate pleading document which would itself be treated as confidential and would continue to be treated as such by both parties and the Tribunal throughout and after the hearing, or until such time as the Tribunal had determined that the material was not subject to confidentiality requirements. Ireland confirmed that it had put in place administrative machinery which would ensure that the circulation of the said information would be restricted to the minimum.
4.102. Ireland’s letter of 16 July 2002 concerned the United Kingdom’s undertaking to the ITLOS that there would be no transports associated with the MOX plant before October 2002. Ireland invited asked the United Kingdom to indicate its position regarding the adoption of a voluntary assurance (in the terms of paragraphs 78 and 79 of the ITLOS
92 See the Decision of the EA on the application of the Transfrontier Shipment of Radioactive Waste Regulations 1993, July 2002, vol 3(2), Annex 102. 93 Ireland’s letter to the United Kingdom dated 3 July 2002, vol 3(1), Annex 67. 94 United Kingdom’s letter dated 5 July 2002, vol 3(1), Annex 68. 95 This matter was also discussed at the meeting between the parties in London on 25 June 2002 96 Ireland’s letter dated 15 July 2002, vol 3(1), Annex 70. 97 Ibid. 91
Order) to extend its undertaking beyond the October 2002 date, until the Annex VII Tribunal had given its Award. Ireland indicated that in the spirit of co-operation in accordance with the ITLOS Order, and in the interest of both parties it would be preferable to reach a common understanding rather than making any formal applications to the Annex VII Tribunal.98
98 Ireland’s letter dated 16 July 2002, vol 3(1), Annex 71. 92
93
PART II:
THE LAW 94
95
CHAPTER 5
JURISDICTION
5.1. Ireland and the United Kingdom are both parties to UNCLOS.
5.2. Ireland has brought this claim in order to uphold its specific rights under UNCLOS Articles 123, 192, 193, 194, 197, 206, 207, 211, 212, 213, 217 and 222.
5.3. UNCLOS Part XV establishes a regime for the settlement of disputes concerning the interpretation and application of the Convention. In July and December 1999, Ireland notified the United Kingdom that a dispute would arise if the United Kingdom authorised the operation of the MOX plant without a proper environmental impact assessment having been carried out and in the absence of co-operation with Ireland, and in consequence in violation of various provisions of the UNCLOS. Ireland specified that such authorisation would in its view be incompatible with the United Kingdom’s obligations under the UNCLOS. These matters are fully described in chapter 4.1
5.4. The issue was not resolved. On 3 October 2001 the United Kingdom published a decision allowing the operation of the MOX plant to proceed.2 At a meeting held in London on 5 October 2001,3 and subsequently by letter dated 16 October 2001,4 Ireland notified the United Kingdom that a dispute concerning the interpretation and application of UNCLOS then existed between the two States, as a result of the authorisation by the United Kingdom of the MOX plant.
5.5. UNCLOS Article 283(1) requires States Parties which are parties to a dispute concerning the interpretation or application of UNCLOS to exchange views regarding the settlement of that dispute.
5.6. There has been a full exchange of views by Ireland and the United Kingdom concerning the settlement of this dispute. Ireland has written to the United Kingdom on numerous occasions, beginning in 1999, setting out its views as to the violations of UNCLOS that would be occasioned by the authorisation of the MOX plant.5 Those views were amplified at the meeting on 5 October 20016 and in the letter of 16 October 2001.7 Those exchanges are detailed in chapter 4, above.
1 See chapter 4, paras 4.27 et seq. 2 See chapter 4, para 4.26. 3 See chapter 4, para 4.46. 4 Ireland’s letter of 16 October, vol 3(1), Annex 34. 5 See Ireland’s letter of 23 December 1999; vol 3(1), Annex 20. See further chapter 4, particularly paras 4.45 et seq. 6 See para 4.46. 7 Letter from Ireland to the United Kingdom dated 16 October 2001, vol 3(1), Annex 34. 96
5.7. In view of the imminence of the commissioning of the MOX plant, then expected to be on or around 23 November 2001,8 Ireland accordingly had no option but to exercise its right to initiate proceedings under the UNCLOS, and to seek provisional measures for the protection of its rights from the ITLOS.
5.8. As the ITLOS decided, “a State Party is not obliged to continue with an exchange of views when it concludes that the possibilities of reaching agreement have been exhausted”.9 It was apparent that after the publication of the United Kingdom’s decision on 3 October 2001, no agreement could be reached and that the United Kingdom was determined to proceed to operate the MOX plant. The ITLOS rejected the United Kingdom’s submission that there had not been an exchange of views within the meaning of Article 283 of the Convention.
5.9. Ireland appeared before the ITLOS on 19 and 20 November 2001. The ITLOS issued its Order on 3 December 2001. A copy of that Order is annexed hereto, as Annex 3.10
5.10. Since that date the United Kingdom and Ireland have sought to co-operate in order to arrange for the timely and efficient determination of this dispute by the Annex VII Tribunal.11
5.11. This dispute falls within the jurisdiction of the Annex VII Tribunal. Ireland and the United Kingdom have failed to settle the dispute between them by negotiation, and have not chosen any other means for its settlement. UNCLOS Article 281(1) allows recourse to procedures provided for in Part XV, including compulsory procedures entailing binding decisions under Section 2 of that Part. Article 286 permits these compulsory procedures to be activated by the submission of the dispute to the court or tribunal having jurisdiction under Section 2, and it permits any party to the dispute to make that submission.
5.12. Article 287 governs the choice of compulsory procedures. Article 287(1) permits a State Party, by way of a written declaration, to choose one or more of the means for the settlement of disputes listed in the paragraph, which include an arbitral tribunal established under UNCLOS Annex VII. Ireland has made no written declaration pursuant to Article 287(1), and is therefore deemed by operation of Article 287(3) to have accepted arbitration in accordance with Annex VII. The United Kingdom has opted for the settlement of disputes by the International Court of Justice.
5.13. As the parties to the dispute have not both accepted the same procedure for the settlement of the dispute, Article 287(5) applies. That paragraph stipulates that, “if the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree.” There has been no agreement between the parties to the submission of this dispute to any forum other than an Annex VII Tribunal. Article 1 of UNCLOS Annex VII provides that any Party that cannot otherwise settle a dispute may submit the same to arbitration by written notification to the other Party. Accordingly, Ireland has requested the
8 See the letter from BNFL to Friends of the Earth, dated 17 October 2001, vol 3(3), Annex 120. 9 Order of 3 December 2001, paragraph 60; vol 3(1), Annex 3. 10 In vol 3(1). 11 See paras 4.63 et seq. 97 submission of the dispute between itself and the United Kingdom to an arbitral tribunal constituted under Annex VII.12
5.14. No prior procedures need to be exhausted before arbitration proceedings may be initiated under Annex VII. Nevertheless, as has been explained,13 Ireland had, over a period of nearly two years, raised its concerns in relation to the dispute by correspondence and in bilateral meetings. Indeed, Ireland has continued to be active in seeking the co- operation of the United Kingdom in the months since the Order of the ITLOS, dated 3 December 2001. Ireland’s efforts to resolve the dispute prior to the submission to UNCLOS were, however, unsuccessful; and the dispute remains unresolved to the present time.
5.15. It was suggested by the United Kingdom during the ITLOS proceedings that the ITLOS lacked jurisdiction because this dispute could and should have been pursued under the dispute settlement provisions of some other treaty, such as the 1992 OSPAR Convention, the EC Treaty, and/or the EURATOM Treaty.
5.16. As Ireland explained to the ITLOS, that suggestion is factually incorrect. Ireland has rights under the UNCLOS that it does not have under the other treaties to which the United Kingdom referred. No treaty other than UNCLOS provides such a comprehensive set of rules – procedural and substantive– embodying Ireland’s rights and protecting its interests in marine environment of the Irish Sea. There is no reason why the existence of narrower rights under other treaties should bar Ireland from relying upon its wider rights under the UNCLOS. Ireland is entitled to rely upon its wider rights under the UNCLOS, as it does in this case.
5.17. The greater breadth of the UNCLOS rights is apparent on the face of the Convention. The provisions of UNCLOS Article 123, concerning the duty of co-operation and co-ordination in semi-enclosed seas, colour the application of all the other UNCLOS Articles, giving them a particular legal context altogether lacking in other legal instruments. Similarly, the Articles falling within UNCLOS Part XII, on Protection and Preservation of the Marine Environment, impose substantive and procedural duties upon the United Kingdom. The nature and extent of the United Kingdom’s duties under these provisions of the UNCLOS, are spelled out in the chapters of this Memorial that follow. It is the application of these Articles of the UNCLOS to the United Kingdom that is the substance of the dispute in the present case.
5.18. The ITLOS specifically, explicitly and unanimously rejected the United Kingdom’s challenges to the jurisdiction of the UNCLOS Annex VII Tribunal based on UNCLOS Article 282. That Article reads as follows: “If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree.”
5.19. In the Order of 3 December 2001, the ITLOS upheld its jurisdiction, which was, according to UNCLOS Article 290(1), dependent upon a finding by the ITLOS that prima
12 Ireland’s Statement of Claim appears at vol 3(1), Annex 1. 13 See chapter 4. 98 facie the Annex VII tribunal has jurisdiction. The ITLOS included in the statement of its reasoning the following paragraphs: “48. Considering that, in the view of the Tribunal, article 282 of the Convention is concerned with general, regional or bilateral agreements which provide for the settlement of disputes concerning what the Convention refers to as ‘the interpretation or application of this Convention’; 49. Considering that the dispute settlement procedures under the OSPAR Convention, the EC Treaty and the EURATOM Treaty deals with dispute concerning the interpretation or application of those agreements, and not with disputes arising under the Convention; 50. Considering that, even if the OSPAR Convention, the EC Treaty and the EURATOM Treaty contain rights or obligations similar to or identical with the rights or obligations set out in the Convention, their rights and obligations under those agreements have a separate existence from those under the Convention; 51. Considering also that the application of international law rules on interpretation of treaties to identical or similar provisions of different treaties may not yield the same results, having regard to, inter alia, differences in the respective contexts, objects and purposes, subsequent practice of parties and travaux préparatoires; 52. Considering that the Tribunal is of the opinion that, since the dispute before the Annex VII arbitral tribunal concerns the interpretation or application of the Convention and no other agreement, only the dispute settlement procedures under the Convention are relevant to the dispute; 53. Considering that, for the reasons given above, the Tribunal considers that, for the purpose of determining whether the Annex VII arbitral tribunal would have prima facie jurisdiction, article 282 of the Convention is not applicable to the disputes submitted to the Annex VII arbitral tribunal.”14
5.20. In these circumstances, Ireland submits that it is evident that this Annex VII Tribunal has jurisdiction to determine Ireland’s claims concerning the interpretation and application of the UNCLOS.
14 See vol 3(3), Annex 3. 99
CHAPTER 6
THE APPLICABLE LAW
INTRODUCTION
6.1. Article 293(1) of the UNCLOS directs the Annex VII Tribunal to apply “[UNCLOS] and other rules of international law not incompatible with [the] Convention”. It follows that the rules of international law which the Annex VII Tribunal is called upon to apply – in relation to the issues which divide the parties on co-operation, on the requirement to carry out an environmental impact assessment, and to take measures to prevent pollution from the MOX plant and associated activities – are to be found both in the relevant provisions of UNCLOS and in “other rules of international law which are not incompatible” with the Convention. The negotiating history of UNCLOS and the case-law of the International Tribunal for the Law of the Sea confirm that these other rules of international law include rules of customary and conventional law, as well as general principles of law recognised by civilised nations.1
A. THE RELATIONSHIP BETWEEN THE RULES OF THE 1982 UNCLOS AND OTHER RULES OF INTERNATIONAL LAW
6.2. It is self-evident that the Annex VII Tribunal should first identify the rights and obligations of the parties by reference to the provisions of UNCLOS. Article 293 reflects an agreement on the priority of UNCLOS among the sources of law to be applied by the courts and tribunals having jurisdiction under the Convention.2 The “other rules of international law” which the Annex VII Tribunal is called upon to apply are related to the provisions of UNCLOS in two ways.
6.3. Firstly, in applying “other rules of international law” the content of certain rules in UNCLOS establishing in general terms obligations will be informed and developed by the existence of rules of international law arising outside UNCLOS. This reflects the general principle in international law supported by the jurisprudence of the International Court of Justice: “… an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation.”3
1 See generally Gudmundur Eriksson, The International Tribunal for the Law of the Sea, 145-147 (2000). 2 See Center for Oceans Law and Policy, United Nations Convention on the Law of the Sea 1982: A Commentary, vol 5, p 73 (1993). 3 Legal Consequences for States of the Continued Presence of South Africa in Namibia (Southwest Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16, at p 31. 100
The “legal system” includes treaties, customary international law, acts of international organisations and general principles of law. The approach has been confirmed more recently by the 1996 resolution of the Institut de Droit International: “[t]reaty and custom form distinct, interrelated sources of international law […] a norm deriving from one of these two sources may have an impact upon the content and interpretation of norms deriving from the other source.”4
6.4. Like the Charter of the United Nations, the UNCLOS is not a static instrument. The content and effect of its obligations evolve over time, to take into account developments in international law and changes in the state of scientific knowledge and understanding. This general consideration is especially true in the field of environmental law, where rapid changes have occurred in the state of scientific knowledge and a growing awareness of the potential risks which certain activities might have for man and the environment. In this case the approach applies, for example, in relation to the content of the requirement to carry out an environmental impact assessment5 and the duty to co-operate.6
6.5. Secondly, rules of international law arising outside UNCLOS are to be applied by the Annex VII Tribunal in another way. In respect of certain obligations which they have accepted by becoming parties to UNCLOS States are expressly directed – sometimes individually, sometimes jointly – to implement or to take into account international rules, standards or practices arising outside UNCLOS in order to fulfil their obligations under the 1982 Convention.
6.6. One example of this requirement is in relation to the various obligations to prevent, control and reduce pollution of the Irish Sea. This requires the parties to “implement applicable international rules and standards” concerning land-based pollution (Article 213).7 Another example concerns the obligation to prevent reduce and control pollution of the Irish Sea from vessels flying the British flag or registered in the United Kingdom. This requires the United Kingdom to adopt laws and regulations which “shall have at least the same effect as that of generally accepted international rules and standards” (Article 211(2);8 such rules and standards include “inter alia those relating to prompt notification to coastal states, whose coastline or related interests may be affected by incidents … which involve discharge or probability of discharges” (Article 211(7)).9 A further example concerns the obligation to prevent, reduce and control pollution of the marine environment from or through the atmosphere. This requires the United Kingdom to “[take] into account internationally agreed rules, standards and recommended practices and procedures” (Article 212(1)).10
6.7. In these two ways – by the interpretation of general UNCLOS provisions in the light of the wider body of international law, and by the direction to apply other international rules, standards and practices – UNCLOS assumes an integrating function, bringing together conventional and customary norms, and regional and global norms.
4 Resolution on Problems arising from a Succession of Codification Conventions on a Particular Subject, Conclusion 10, reprinted in 66 Annuaire I.D.I. 435, 441 (1996-II). 5 See Chapter 7, paras 7.16 et seq. 6 See Chapter 8, paras 8.45 et seq. 7 See Chapter 9, paras 9.127 et seq. 8 Ibid, para 9.17. 9 Ibid. 10 Ibid, para 9.19. 101
Article 293 thereby directs the Annex VII Tribunal to apply all the relevant rules of international law in identifying the nature and extent of each State’s obligations, and in determining whether a state’s behaviour is in conformity with those obligations. The only limitation on that direction is that the Tribunal must be satisfied that the other rules of international law are “not incompatible” with UNCLOS.
B. THE APPLICATION OF THE RULES IN UNCLOS
6.8. UNCLOS came into force for Ireland on 21 July 1996 and for the United Kingdom on 24 August 1997. As between the parties to this dispute the Convention became binding as between them on 24 August 1997. By that date the United Kingdom had not justified or authorised the operation of the MOX plant, or any transports associated directly or indirectly with the operation of the MOX plant. The decision justifying the plant, which paved the way for the authorisation of its operation, was adopted on 3 October 2001. The plant was commissioned on or around 20 December 2001. It is therefore plain that: • UNCLOS was in force on the date the decision to authorise was taken by the United Kingdom; • the obligations under UNCLOS were applicable to the United Kingdom at the material times, including the various public consultations in respect of justification; and • Ireland is entitled to invoke the provisions of UNCLOS against the United Kingdom in respect of the decision to authorise the operation of the MOX plant and other activities associated directly or indirectly with its operation.
6.9. Notwithstanding the applicability of UNCLOS to the MOX decision-making process, and the fact that Ireland expressly and in writing invoked UNCLOS in its dealings with the United Kingdom as early as 1999, none of the United Kingdom’s decision documents in relation to the MOX plant (from the 1993 Environmental Statement to the October 2001 Decision) make reference to the requirements of UNCLOS. According to these documents no account appears to have been taken of the requirements of UNCLOS, directly or indirectly. The United Kingdom has confirmed as much in its answer to the 55 questions posed by Ireland following the ITLOS Order of 3 December 2001.11
6.10. Indeed, as will be elaborated in subsequent chapters of this Memorial, there appears to be no indication that the United Kingdom ever took any account of the requirements of UNCLOS in deciding to authorise the operation of the MOX plant and associated international transports. This absence of consideration applies in relation to the duty to co-operate with Ireland, to carry out a proper environmental impact assessment, and to take appropriate measures to prevent pollution.
11 See Question 44 and answer thereto, vol 3(1), Annex 7, p 81. 102
C. THE APPLICATION OF OTHER RULES OF INTERNATIONAL LAW NOT INCOMPATIBLE WITH THE CONVENTION
6.11. Other rules of international law not incompatible with the Convention are particularly relevant for assessing the lawfulness (under UNCLOS) of the decision to authorise the operation of the MOX plant and associated activities. These other activities include the extended operation of the THORP plant (and consequential increase in radioactive discharges into the Irish Sea) and the greater number of international transports of radioactive materials in and around the Irish Sea (with consequential increase in the risk of pollution arising as a result of accidents or terrorist activity). These other rules are pertinent for several reasons: • first, they indicate how the concept of activities “likely to cause a significant adverse transboundary impact”, used in UNCLOS, is interpreted and understood in international practice; and • second, because they indicate how the general UNCLOS provisions on environmental protection should be interpreted, notably by indicating the applicability of the precautionary principle and the concept of sustainable development to the authorisation of the MOX plant.
6.12. Other rules of international law which are to be applied or taken into account by the Annex VII Tribunal are to be found in (1) internationally agreed rules set forth in other international treaties, (2) rules of customary international law, and (3) internationally agreed standards and recommended practices and procedures, including those adopted by international organisations at the regional and global levels. The specific requirements of other rules of international law, and relevant standards and practices, are addressed in subsequent chapters, dealing with specific requirements relating to co-operation (Chapter 8), environmental impact assessment (Chapter 7) and pollution prevention (Chapter 9). For present purposes it is appropriate to briefly note the principal other rules and standards which are to be applied or to be taken into account, or which inform the content of UNCLOS rules and obligations.
(1) INTERNATIONAL TREATIES
6.13. A number of regional agreements establish detailed obligations for the protection of the Irish Sea from pollution, and in particular pollution from radioactive sources. These agreements inform, develop and define the content of the United Kingdom’s specific obligations under UNCLOS. Important examples include obligations imposed by the 1973 International Convention for the Prevention of Pollution from Ships (MARPOL 73/78), the 1979 International Convention on Maritime Search and Rescue, and the 1992 Convention on the Protection of the Marine Environment of the North-East Atlantic (“1992 OSPAR Convention”).12 Other examples referred to subsequently (in relation to the duty to co- operate) include the 1980 Convention on the Physical Protection of Nuclear Material,13 the 1994 Convention on Nuclear Safety14 and the 1997 Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management.15
12 See vol 3(1), Annex 74. 13 Chap 8, paras 8.212-221. 14 Ibid, paras 8.180-182. 15 Ibid, paras 8.183-186. 103
6.14. MARPOL 73/78 includes detailed regulations to prevent pollution from ships as set forth in various annexes.16 The Irish Sea is a MARPOL “special area”. The 1979 International Convention on Maritime Search and Rescue sets out detailed obligations in relation to the duty to co-operate, including the duty to inform, the duty to react to information, and the duty to consult.17
6.15. The 1992 OSPAR Convention18 replaced two other regional instruments (to which Ireland and the United Kingdom were also party) and which imposed substantial restrictions on discharges of radioactive substances into the Irish Sea, namely the 1972 Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft19 and the 1974 Paris Convention for the Prevention of Marine Pollution from Land-Based Sources (“the 1974 Paris Convention”).20 The 1974 Paris Convention was one of the very first international conventions to mandate the principle of precautionary action21 and to require discharge authorisations relating to nuclear processing installations to be issued only if special consideration had been given to a “full environmental impact assessment”.22 These regional requirements were applicable to the United Kingdom even before the MOX plant was formally proposed or UNCLOS had come into force.
6.16. The preamble to the OSPAR Convention recalls the “relevant provisions of customary international law reflected in Part XII of the United Nations Convention on the Law of the Sea and, in particular Article 197 on global and regional co-operation for the protection and preservation of the marine environment”. OSPAR provisions, and actions taken in pursuance of them, indicate what is considered to be necessary in order to protect the environment, and what is practicable. The requirements of the OSPAR Convention therefore inform the content of many provisions of Part XII of UNCLOS, requiring the United Kingdom “to take all possible steps to prevent and eliminate pollution” and to “take the necessary measures to protect the maritime area against the adverse effects of human activities so as to safeguard human health and to conserve marine ecosystems and, when practicable, restore marine areas which have been adversely affected” (Article 2(1)(a)).
6.17. To give effect to these and other objectives the OSPAR Convention requires the United Kingdom to apply the precautionary principle and take specific measures to prevent and eliminate pollution from land based-sources (Article 3 and Annex I) and from other sources. The OSPAR Convention also prohibits any dumping of radioactive wastes in the Irish Sea.23 The OSPAR Commission, established under the Convention, has adopted a number of decisions and recommendations which provide a benchmark against which the Annex VII Tribunal can assess the United Kingdom’s compliance with its obligations under the UNCLOS, including in particular the requirement that the United Kingdom substantially reduce and eliminate discharges of radioactive substances into the Irish Sea.24
16 12 ILM 1291 (1973) and 17 ILM 246 (1978) as amended subsequently. 17 Chapter 8, paras 8.47 et seq. 18 See also Chapter 9, paras 9.43 et seq. 19 15 February 1972, UKTS 119 (1975), Cmnd 6228. 20 4 June 1974, 13 ILM 352 (1974). 21 PARCOM Recommendation 89/1 (1989). 22 PARCOM Recommendation 93/5 (1993). 23 Article 4 and Annex II: see Chapter 9, para 9.42. See also OSPAR Decision 98/2 on Dumping of Radioactive Waste. 24 OSPAR Decision 2000/1 on Substantial Reductions and Elimination of Discharges, Emissions and Losses of Radioactive Substances, with Special Emphasis on Nuclear Reprocessing (vol 3(1), Annex 78); 104
6.18. In 1998 the Ministers of the OSPAR parties (including the United Kingdom) adopted the Sintra Ministerial Statement.25 This sets out a detailed timetable for the elimination of discharges of radioactive substances into the marine environment of the Irish Sea, promotes an OSPAR Strategy with Regard to Radioactive Substances,26 and establishes an OSPAR Action Plan for the Period 1998-2003.27 These commitments inform the United Kingdom’s obligations under Part XII of the UNCLOS, in relation to the duty to co-operate, to assess the environmental impacts of the MOX plant, and to prevent further radioactive pollution of the Irish Sea.
6.19. Mention may also be made of the 1991 UN Economic Commission for Europe Convention on Environmental Impact Assessment in a Transboundary Context, as well as relevant EU rules. These instruments, together with those mentioned above, and others identified elsewhere in the Memorial, are relevant not because the Tribunal is being asked to apply them per se (as Article 293 directs), but because they show how general obligations in UNCLOS are to be interpreted and applied. In the terms of the 1991 Espoo Convention the MOX plant is an installation which is “likely to cause a significant adverse transboundary impact” and which must therefore be subject to inter alia an environmental impact assessment before any decision is taken to authorise its operation.28 European Community law also imposes specific obligations relating to various aspects of the MOX plant, including the requirement to carry out an environmental impact assessment on the MOX plant,29 to “justify” the benefits of the MOX plant,30 and to ensure that transboundary movements of radioactive wastes are subject to appropriate safeguards.31
6.20. At the global level, other relevant rules of international law are reflected in numerous international conventions (and other instruments) adopted under the auspices of the International Atomic Energy Agency (IAEA). The 1980 Convention on the Physical Protection of Nuclear Material obliges parties to ensure during international nuclear transport the protection of nuclear material within their territory or on board their ships or aircraft.32 The 1994 IAEA Convention on Nuclear Safety commits participating States operating land-based nuclear power plants to maintain a high level of safety, and establishes obligations requiring parties to apply international standards on siting, design, construction, operation, quality assurance and emergency preparedness.33 The 1997 IAEA Joint Convention of the Safety of Spent Fuel Management and on the Safety of
OSPAR Decision 2001/1 on the Review of Authorisations for Discharges or Releases of Radioactive Substances from Nuclear Reprocessing Activities (vol 3(1), Annex 79). 25 Vol 3(1), Annex 76; see also Chapter 9, paras 9.48-49. 26 Vol 3(1), Annex 75; see Chapter 9, para 9.50. 27 Annex 77. 28 25 February 1991, in force 10 September 1997, 30 ILM 802 (1991). Annex I includes amongst the activities which must be subject to a prior environmental impact assessment all “installations solely designed for the production or enrichment of nuclear fuels, for the reprocessing of irradiated nuclear fuels or for the storage, disposal and processing of radioactive waste”. The United Kingdom ratified on 10 October 1997; Ireland signed on 27 February 1991. See generally Chapter 7, paras 7.22-23. 29 Directive 85/337/EEC, (O.J. No. L175, 5.7.1985) as amended by Directive 97/11/EC (O.J. No. L 73, 14.3.1997); see Chapter 7, paras 7.20-21. 30 Directive 96/269/EURATOM; see Chapter 2, paras 2.89 et seq., and Chapter 4, paras 4.10 et seq. 31 Directive 92/3/EURATOM; see Chapter 4, para 4.97. 32 18 ILM 1419 (1979), in force on 8 February 1987; United Kingdom and Ireland ratified on 6 September 1991. 33 33 ILM 1514 (1994), in force 24 October 1996; Ireland ratified on 11 July 1996, United Kingdom ratified on 17 January 1996. 105
Radioactive Waste Management imposes specific safety requirements in respect of various activities at Sellafield.34 These requirements, and the other relevant rules of international law identified in particular in Chapters 7, 8 and 9 of this Memorial, are relevant also because they show how the UNCLOS obligations are to be interpreted and applied. Finally, a number of other international conventions establishing rules of international law are relevant to the issues of co-operation, environmental impact assessment and pollution prevention. These too are entirely compatible with the requirements of UNCLOS.35
(2) CUSTOMARY INTERNATIONAL LAW
6.21. The International Tribunal for the Law of the Sea has confirmed that the other relevant rules of international law to be applied by the Annex VII Tribunal include rules of customary (or general) international law.36 Beyond the role indicated above for the treaties and rules invoked by Ireland in this Memorial, these treaties and rules are also indications of a general practice accepted as law. Of particular relevance here are the ILC’s Articles on Prevention of Transboundary Harm from Hazardous Activities, adopted in 2001,37 and norms reflected in the jurisprudence of international courts and tribunals.38 In the dispute between Ireland and the United Kingdom two norms of general international law are especially pertinent, namely (1) the obligation to apply the precautionary principle and (2) the obligation, pursuant to the concept of sustainable development, to ensure that current norms and standards of environmental protection are to be applied to the authorisation of the MOX plant.
Precautionary Principle39
6.22. In this case the application of the precautionary principle means that “preventive measures are to be taken when there are reasonable grounds for concern that substances or energy introduced, directly of indirectly, into the marine environment may bring about hazards to human health, harm living resources and marine ecosystems, damage amenities or interfere with other legitimate uses of the sea, even when there is no conclusive evidence of a causal relationship between the inputs and the effects”.
6.23. This language, which is to be found in Article 2(2)(a) of the 1992 OSPAR Convention, reflects a rule of general international law amongst European States which are
34 36 ILM 1431 (1997), in force 18 June 2001; Ireland ratified on 20 March 2001, United Kingdom ratified on 12 March 2001. 35 These are referred to where relevant in Chapters 7, 8 and 9. 36 See e.g. International Tribunal for the Law of the Sea, The M/V “Saiga” (No.2), Judgment of 1 July 1999, at para 120 (“there is nothing to prevent [the Tribunal] from considering the question whether or not, in applying its laws to the Saiga in the present case, Guinea was acting in conformity with its obligations towards Saint Vincent and the Grenadines under the Convention and general international law”), emphasis added. Whilst recognising the right of a state to invoke “other rules of international law”, the International Tribunal rejected the claims by Guinea that its activities were justified by reference to “other rules of international law” (as provided by Article 58(3) of the 1982 Convention), namely the principle of “self-protection” and the “state of necessity”. 37 Vol 3(1), Annex 73. 38 E.g., the arbitral award in the Lac Lanoux case (1957), vol 3(1), Annex 80. 39 See also Chapter 9, paras 9.79-9.86. 106 parties to the OSPAR Convention or members of the European Community. The approach has been endorsed by Ireland and the United Kingdom.
6.24. The commitment to apply the precautionary principle to the Irish Sea dates back as far as 1989,40 and has been accepted by both States in numerous international conventions to which they are parties as well as the 1992 Rio Declaration on Environment and Development.41 Also in 1992 Ireland and the United Kingdom joined over 170 other states in expressly undertaking to “Not promote or allow the storage or disposal of high-level, intermediate-level and low-level radioactive wastes near the marine environment unless they determine that scientific evidence, consistent with the applicable internationally agreed principles and guidelines, shows that such storage or disposal poses no unacceptable risk to people and the marine environment or does not interfere with other legitimate uses of the sea, making, in the process of consideration, appropriate use of the concept of the precautionary approach.”42
6.25. The precautionary principle has been recognised as being inherent in the approach adopted by UNCLOS.43 It is reflected in relevant regional treaties.44 In proceedings before the WTO Appellate Body (in 1998) the European Community (on behalf of all its Members) has described the principle as being “a general customary rule of international law or at least a general principle of law”, which applies both to the assessment and management of a risk.45 Also in 1998 the United Kingdom and Ireland and other parties to the OSPAR Convention adopted a strategy on radioactive substances for the period 1998- 2003 which expressly committed to the application of the precautionary principle in reducing concentration of artificial radioactive substances in the Irish Sea to “close to zero” by 2020.46
6.26. During the course of the provisional measures phase of proceedings before the International Tribunal for the Law of the Sea the United Kingdom did not challenge Ireland’s characterisation of the precautionary principle as having the status of customary international law. In prescribing its measure the International Tribunal applied “prudence and caution”.47 The precautionary principle requires the Tribunal to interpret and apply the
40 See PARCOM Recommendation 89/3, supra. note 20. 41 31 ILM 874 (1992) (“In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures tom prevent environmental degradation”). 42 Annex 82, Agenda 21, paragraph 22.5(2), 14 June 1992, A/CONF.151/26/Rev.1.See also Agenda 21, Chapter 17, para 17.5(d) (“Coastal states commit themselves to … [a]pply preventive and precautionary approaches in project planning and implementation, including prior assessment ands systematic observation of the impacts of major projects”), para 17.22. See also para 111(a) of the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities (1995), Annex 83. 43 See ITLOS, Separate Opinion of Judge Laing, Southern Bluefin Tuna Cases, Order of 27 August 1999. para 16. See also Chapter 9, para 9.64 (“pollution” is to be interpreted and applied in the light of the precautionary principle). 44 See e.g. 1992 UN Economic Commission for Europe Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Art. 2(5)(a), 31 ILM 1312 (1992). 45 See Report of the Appellate Body, 16 January 1998, WT/DS48/AB/R, at para 16. 46 Vol 3(1), Annex 75. 47 ITLOS Order of 3 December 2001, para 84, vol 3(1), Annex 3. 107 relevant provisions of UNCLOS in a precautionary manner. The specific application of the principle is described in more detail in Chapter 9.48
Sustainable Development and the Obligation to Apply Current Norms and Standards of Environmental Protection
6.27. Together with the precautionary principle, Ireland and the United Kingdom have also committed to apply the principle of sustainable development in their activities relating to the marine environment. Agenda 21, adopted at the 1992 United Nations Convention on Environment and Development (UNCED), expressly identifies UNCLOS as being part of the commitment to achieve sustainable development, and commits states to “integrate protection of the marine environment into relevant general environmental, social and economic development policies”.49
6.28. Sustainable development requires that economic and environmental objectives be treated in an integrated manner: as declared by Principle 4 of the Rio Declaration on Environment and Development, to which both parties have subscribed: “In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.”50
6.29. The obligation to treat environment and development in an integrated manner is now reflected in international law. As one leading treatise has put it: “if states do not carry out EIAs….or integrate developmental and environmental considerations in their decision-making […] they will have failed to implement the main elements employed by the Rio Declaration and other international instruments for the purpose of facilitating sustainable development. There is … ample state practice to support the normative significance of most of these elements.”51
6.30. The obligation to integrate environment and development comprises a number of different elements, but central to the concept is the requirement that when States take decisions on proposed activities they must take into account all the environmental consequences of that decision.
6.31. Related to the requirement to apply the concept of sustainable development is the obligation of States to apply current standards of environmental protection, not older standards. In circumstances where the impact upon, and implications for, the environment are of necessity a key issue, as in the case of highly dangerous activities such as the operation of the MOX plant and associated activities, the principle has been put in this way by the International Court of Justice:
48 Chapter 9, para 9.79-84. 49 Agenda 21, Chapter 17, para 17.22(c), vol 3(2), Annex 82. See also paragraph 4 and 9 of the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities (1995) (“The duty to protect the marine environment from land-based activities was placed squarely in the context of sustainable development by the United Nations Conference on Environment and Development in 1992”). vol 3(2), Annex 83. 50 Supra. note 38. 51 See P. Birnie and A. Boyle, International Law and the Environment, (2nd ed., 2002), at p 96. 108
“The Court is mindful that, in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage. Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind — for present and future generations — of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development.”52 (emphasis added)
6.32. As described in more detail in subsequent chapters, what this means for the present case is that the United Kingdom is under an obligation, in taking any decision in 2001 relating to the operation of the MOX plant and related activities, to apply the environmental standards which are applicable in 2001. It will not be appropriate or lawful to apply environmental standards which may have been applicable in 1993 or in 1996 or in 1998 but which take no account of subsequent developments in the law or in the state of scientific knowledge or in the requirements of environmental protection. But as shown in this Memorial,53 that is precisely what the United Kingdom has done.
6.33. The requirement to apply current standards applies equally to substantive norms (governing, for example, discharge levels) and to procedural norms (imposing requirements, for example, on co-operation and information exchange, and in respect of environmental impact assessment). For the Annex VII Tribunal the approach adopted by the International Court of Justice indicates that the standards to be applied in assessing the United Kingdom’s compliance with its obligations under the 1982 Convention and other rules of international law are those which were applicable as at 3 October 2001.
6.34. The United Kingdom Environment Agency has explicitly recognised the consequences of its inability to consider the entirety of the economic costs of the MOX plant, in the context of its proposed Decision on the Justification for the Commissioning and Operation of the MOX plant. In October 1998 it stated: “It is unsatisfactory that the Agency has no powers under the RSA 93 to require an application to be submitted for a new plant prior to its construction. The time at which an application is received is crucial to the Agency’s involvement in the regulation of new plant. The Agency is dissatisfied that it was unable to consider the full economic case for the MOX plant.”54
This refers to the fact that the Agency did not take into consideration any of the costs of construction of the plant, which had already been incurred by the time it was required to take its decision. This constitutes a clear example of a failure by the United Kingdom to
52 Case Concerning the Gabcikovo-Nagymaros Project, 1997 ICJ Reps, p 7, para 140. 53 See e.g. chapter 7, para 7.81, and chapter 9, at paras 9.128-141. 54 Vol 3(2), Annex 95, at Executive Summary, and Introduction para 17 (Proposed Decision on the Justification of the MOX Plant). 109 apply standards to “activities begun in the past” – although here it is standards which were in force at the time the activity in question (construction of the MOX plant) began.
(3) INTERNATIONALLY AGREED STANDARDS AND RECOMMENDED PRACTICES AND PROCEDURES
6.35. As identified above, a number of provisions of UNCLOS require States to take into account internationally agreed standards and recommended practices and procedures.55 Such standards, practices and procedures are now set forth in many international instruments to which the United Kingdom has expressed its support and commitment. For the purposes of this case the relevant international instruments include: • IMO Codes, such as the International Code for the Safe carriage of Packaged Irradiated Nuclear Fuel, Plutonium and High Level Radioactive Waste on Board Ships;56 • IAEA guidelines;57 • the UNEP Guidelines on Environmental Impact Assessment (1987);58 • Agenda 21 (1992);59 • the UNEP Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities (1995);60 • the OSPAR Strategy with Regard to Radioactive Substances (1998);61 and • the Bergen Ministerial Declaration (2002).62
55 Supra. para 6.6. 56 See Chapter 8, paras 8.231 et seq., and 8.233. 57 See Chapter 8, paras 8.222 et seq. 58 Vol 3(2), Annex 81. 59 Ibid, Annex 82. 60 Ibid, Annex 83. 61 Vol 3(1), Annex 77. 62 Vol 3(2), Annex 86. 110
SUMMARY AND CONCLUSIONS
6.36. Article 293(1) of UNCLOS directs the Annex VII Tribunal to apply UNCLOS and other rules of international law not incompatible with the Convention. This means that the general UNCLOS provisions are to be applied and interpreted in the light of the wider body of international law, and that the Tribunal is to apply other international rules, standards and practices. UNCLOS therefore assumes an integrating function. It brings together conventional and customary norms, and regional and global norms. It directs the Annex VII Tribunal to apply all the relevant rules of international law in identifying the nature and extent of each State’s obligations, and in determining whether a state’s behaviour is in conformity with those obligations. The only limitation on that direction is that the Tribunal must be satisfied that the other rules of international law are “not incompatible” with UNCLOS. 111
CHAPTER 7
ENVIRONMENTAL IMPACT ASSESSMENT
INTRODUCTION
7.1. Ireland has long been concerned to ensure that all the environmental consequences for the marine environment of the Irish Sea flowing from the operation of the MOX plant should be fully identified and properly assessed prior to the operation of the plant. The need to assess the environmental impact of the MOX plant requires assessment of the environmental consequences of all activities that would not have occurred but for the operation of the MOX plant. The requirement to assess therefore encompasses: • the consequences of the MOX plant; • the extension of the life of the THORP plant which will arise as a result of the operation of the MOX plant, and the consequences thereof; • the storage of additional wastes produced as a result of the operation of the MOX plant and additional activities at the THORP plant; and • the risks posed by international transports, related to the MOX plant, of nuclear materials to and from the Sellafield site.
7.2. The identification and assessment of environmental risks is required to be the subject of an environmental impact assessment procedure, including the preparation of a written environmental statement. The objectives of a proper environmental assessment are, inter alia, to ensure that the activities comply with applicable international environmental obligations, to ensure that appropriate protective and response measures may be taken, to ensure that alternative proposals have been fully considered, and to ensure that interested parties and concerned States are fully informed of the environmental implications of the project.
7.3. The only environmental assessment which has ever been carried out in respect of the MOX plant was prepared in 1993 by BNFL (the 1993 MOX Environmental Statement.1 Ireland first communicated to the United Kingdom its concerns about the quality of the 1993 Environmental Statement in 1994.2 Ireland considered that the 1993 Environmental Statement did not meet the standards which applied when the assessment was prepared. Ireland was further concerned by the failure of the United Kingdom to re- assess the direct and indirect effects of the MOX plant by reference to the new environmental standards which came into effect after 1993. It communicated to the United Kingdom its concerns in this regard in 1997, in 1998, in 1999 and again in 2000.
7.4. In summary, Ireland’s case is that, in October 2001, the United Kingdom adopted a Decision justifying the operation of the MOX plant by reference to an inadequate environmental assessment, obtained in 1993 and never updated. Ireland considers the
1 Vol 3(3), Annex 103. 2 Vol 3(1), Annex 8. 112 failure properly to assess the environmental consequences of the MOX plant to be a violation of Article 206 of UNCLOS. Specifically, the United Kingdom has failed properly to assess the actual and potential environmental effects of the MOX plant by inter alia: • Failing to identify and assess the effects of the additional discharges into the Irish Sea arising from the additional operation of the THORP plant; • Failing to assess the state of the Irish Sea and determine the cumulative effects of the discharges from the MOX plant and the consequential additional discharges from the THORP plant on the Irish Sea; • Failing to assess the effects of international transports through the Irish Sea of nuclear materials associated with the MOX plant; • Failing to assess the possible environmental effects of accident or terrorist attack on the MOX plant or on international transports associated with the MOX plant; • Failing to set out any scoping or justification for why the range of impacts studied was selected; • Failing to provide any real consideration of alternatives; • Failing to use adequate baseline data, or to justify choices made in dealing with data; • Failing to consider any effects of the MOX plant, other than direct effects; • Failing to consider adequately the environmental effects of decommissioning the MOX plant.
The consequence of these multiple failures is that the United Kingdom has failed properly to assess the potential impacts of the MOX plant on the Irish Sea, as required by Article 206 of the Convention. The failure to carry out a proper environmental impact assessment is at the heart of this dispute: by not properly informing itself as to all the environmental consequences of the authorisation of the MOX plant the United Kingdom has disabled itself from fulfilling its duties to co-operate and to prevent pollution. In this way the violations of Article 206 are related to further violations of UNCLOS, including an inability to co-operate with Ireland (as required by Article 123 and 197 of UNCLOS) and a failure to “take all necessary measures to ensure that activities under [its] jurisdiction or control are so conducted as not to cause damage by pollution” to Ireland, as required by Article 194 and subsequent provisions of UNCLOS.
A. THE RATIONALE FOR ENVIRONMENTAL ASSESSMENT
7.5. This part of the Memorial is concerned with the obligation to carry out a proper assessment of the environmental impact of the MOX plant. The essence of Ireland’s argument is that the United Kingdom was bound to identify all possible environmental consequences for the Irish Sea arising from the authorisation of the MOX plant, including indirect environmental consequences which would not occur but for the authorization of the MOX plant, and to assess those consequences by reference to its environmental obligations at the date of authorisation (October 2001). Ireland considers that the United Kingdom has violated its obligation because: 113
a. For reasons outlined above and developed further below and in the Report of William Sheate,3 the 1993 MOX Environmental Statement was not in accordance with the legal standards applicable when it was made. b. Further, the United Kingdom has failed to update or otherwise revisit the MOX Environmental Statement in accordance with the law applying at the time of authorisation of the MOX plant, i.e. in 2001.
B. THE LAW
THE SOURCE OF THE LEGAL OBLIGATIONS
7.6. Article 206 of UNCLOS imposes upon the United Kingdom an obligation to assess all the potential effects of the MOX plant on the marine environment of the Irish Sea. The interpretation of Article 206 is governed by the normal rules of treaty interpretation, as reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties, and in particular its Article 31(1) (“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”) As described in Chapter 6,4 the context includes the United Kingdom’s obligations under other international agreements and instruments, notably the 1985 EC Directive 85/337 on Environmental Impact Assessment (as amended), the 1991 UNECE Convention on Environmental Impact Assessment in a Transboundary Context, the 1987 UNEP Goals and Principles of Environmental Impact Assessment, the 1995 Global Programme of Action, and Chapter 17 of Agenda 21. These instruments are relevant as a guide to the interpretation of the duties imposed by Article 206 of UNCLOS and as instances of the “other rules of international law not incompatible with this Convention,” which the present Tribunal is directed to apply to the case before it by Article 293(1) of UNCLOS.
THE DUTIES UNDER UNCLOS
7.7. The United Kingdom’s obligation to assess the effects of the MOX plant and related activities arises from Article 206 of UNCLOS. It reads as follows: “Article 206: Assessment of potential effects of activities When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in article 205.”
7.8. The essential obligation under Article 206 is the making of the assessment of the risk to the environment. As the Virginia Commentary puts it:
3 Vol 2, Appendix 6. 4 See paras 6.2-6.7. 114
“Article 206 … is concerned with the assessment of planned activities before they are begun. It is similar to the requirements of some national environmental legislation, for example, the United States National Environmental Policy Act (NEPA) of 1969, to prepare environmental impact statements in respect of actions likely to affect the quality of the environment in a significant way. In essence, Article 206 provides for the collection and dissemination of information related to the potential polluting effects of planned activities under a State’s jurisdiction or control before those activities occur. Its purpose is to ensure that such activities may be effectively controlled, and to keep other States informed of the potential risks and effects of such activities. As such, it is an essential part of a comprehensive environmental management system, and is a particular application of the obligation on States, enunciated in article 194, paragraph 2, to “take all necessary measures to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment”.5 (emphasis added)
The obligation to carry out an environmental impact assessment, as contained in Article 206, reflects a rule of general international law.6
7.9. This is confirmed by Article 7 of the ILC Draft Articles on Prevention of Transboundary Harm From Hazardous Activities (2001), which states: “Any decision in respect of the authorization of an activity within the scope of the present Articles shall, in particular, be based on an assessment of the possible transboundary harm caused by that activity, including any environmental impact assessment”7
7.10. An Environmental Assessment has two purposes: to minimize environmental risks, and to ensure that neighbouring states are duly informed of any activities entailing risk in order that their views might be made known and their interests taken into account. Environmental assessment is therefore also a central pillar of the duty to co-operate.8 Article 206 clearly requires the environmental assessment to be prepared in written form.9 Article 206 establishes a mandatory requirement (“States … shall … assess the potential effects”) subject to two conditions.
7.11. First, there must be “reasonable grounds for believing that [the MOX plant] may cause substantial pollution of or significant and harmful changes to the marine environment”. This is an objective test. As described below, other international instruments have determined that the preparation of an environmental assessment of the MOX plant is mandatory because it is deemed as a matter of international law to have potential adverse effects. The first condition is plainly fulfilled, and the United Kingdom cannot possibly claim that there are no reasonable grounds for believing that the MOX plant has no potential to cause substantial pollution of or significant and harmful changes to the marine environment.
5 Virginia Commentary (1993), Part. IV, p 122. 6 See Separate Opinion of Judge Weeramantry, Case concerning the Gabcikovo-Nagymaros project, 1997 ICJ Reports, p 7 at p 111. 7 Vol 3(1), Annex 73. 8 See Chapter 8, paras 8.110 et seq. 9 In accordance with the requirements of Art. 205 UNCLOS. This requirement is also common to the instruments establishing more detailed requirements: see infra para 7.25. 115
7.12. Second, Article 206 states that any assessment is to be carried out “as far as practicable”. It might be argued by the United Kingdom that these words could, conceivably, impose a degree of discretion on the state required to carry out the assessment. However, what is “practicable” is essentially a question of fact, which is influenced by the obligations imposed upon the United Kingdom under “other rules of international law”. For the MOX plant the specific conditions governing the preparation of the environmental assessment are determined by reference to the specific requirements of European Community law (Directive 85/337), the 1987 UNEP Guidelines and the 1991 Espoo Convention. These instruments commonly define with considerable precision the nature of the assessment that is to be carried out. They apply legal requirements. It is not open to the United Kingdom to claim that that which is required as a matter of law is not practicable.
7.13. In these circumstances, Article 206 requires the United Kingdom to assess the potential environmental effects of the MOX plant. The “practicability” of any assessment is informed by the requirements of UNCLOS and other rules of international law which are not incompatible with UNCLOS: see Article 293 UNCLOS.10 The obligation of the United Kingdom to carry out an environmental assessment is confirmed by other international instruments which it has endorsed.
7.14. Chapter 17 of Agenda 21 repeatedly commits the United Kingdom to assess projects which may have an impact on the marine environment, and generally requires the United Kingdom to carry out “prior environmental impact assessment, systematic observation and follow-up, of major projects, including the systematic incorporation of results in decision-making”.11 Agenda 21 makes it clear that the prior assessment of activities that may have significant adverse impacts upon the marine environment is required in order to prevent, reduce and control degradation of the marine environment, and is central to the application of a “precautionary and anticipatory rather than a reactive approach”.12
7.15. Similar requirements are imposed by the 1995 Global Programme of Action,13 which additionally requires States to prepare “comprehensive environmental assessments of the effect on the marine and coastal environment of historical discharges and current discharges of radioactive substances”.14
OTHER INTERNATIONAL INSTRUMENTS
7.16. The obligation under UNCLOS to carry out an environmental assessment of the MOX plant is general in nature. Greater precision can be given to its requirements by looking to other international instruments. These instruments are relevant because they give an indication of what measures are “practicable” within the meaning of Article 206.
10 See Chapter 6. 11 Agenda 21, Chapter 17, para 17.6(d); vol 3(2), Annex 82. 12 Ibid, paras 17.21 and 17.22(b). 13 Vol 3(2), Annex 83, at para 9(a): “States agreed it is necessary […] b) To ensure prior assessment of activities that may have significant adverse impacts upon the marine environment”; also para 110(c): “Ensuring proper planning, including environmental impact assessment, of safe and environmentally sound management of radioactive waste, including emergency procedures, storage, transportation and disposal, prior to and after activities that generate such waste”. 14 Ibid, para 112(c). 116
The following section identifies the relevant instruments in general terms, and then describes the common requirements they impose. These define, in concrete terms, the requirements of Article 206.
(a) Overview of Relevant Instruments (in Chronological Order)
1987 UNEP Goals and Principles
7.17. The 1987 UNEP Goals and Principles of Environmental Impact Assessment were adopted by UNEP Governing Council Resolution 14/25 on 17 June 1987.15 Governing Council Resolution 14/25 notes that the Governing Council was “Mindful that the environmental impacts of development activities, which may on occasion reach beyond national boundaries, can significantly affect the sustainability of such activities, Convinced that the integration of environmental and natural resources issues into planning and programme implementation is indispensable in a process of sustainable development, Considering that environmental impact assessment is a valuable means of promoting the integration of environmental and natural resources issues into planning and programme implementation and thereby helps to avoid potential adverse impacts”.
7.18. The object of the Goals and Principles is to ensure that “before decisions are taken … to undertake or to authorise activities that are likely to significantly affect the environment, the environmental effects of those activities should be taken into account”.16 The Goals also emphasise the duty to co-operate, with the object of encouraging “information exchange, notification and consultation between States when proposed activities are likely to have significant transboundary effects on the environment of those States”.17 Principle 1 then provides that “Where the extent, nature or location of a proposed activity is such that it is likely to significantly affect the environment, a comprehensive environmental impact assessment should be undertaken in accordance with the following principles”.
7.19. The Principles then set out the detailed requirements which an environmental impact assessment should, at a minimum, include (Principle 4), requiring that the environmental effects in an EIA “should be assessed with a degree of detail commensurate with their likely environmental significance” (Principle 5). The Principles also call for the conclusion of appropriate arrangements to provide for notification, exchange of information and consultation on the potential environmental effects of activities which are likely to significantly affect other States (Principles 11 and 12). It is apparent that environmental assessment is a central part of the duty to co-operate: if an environmental assessment is carried out inadequately the entire basis for co-operation is put in jeopardy. Moreover, without a proper assessment it becomes difficult, if not impossible, for neighbouring states to prepare adequately for any emergencies which may occur.
15 Vol 3(2), Annex 81. 16 Ibid, Goals, para 1. 17 Ibid, Goals, para 2. 117
Directive 85/337/EEC
7.20. Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment was adopted unanimously by the (then) ten EEC member states, and required them to take “the measures necessary to comply with [the] Directive by 3 July 1988”.18 The Directive requires the environmental assessment “of public and private projects which are likely to have significant effects on the environment”.19 It indicates the United Kingdom’s view as to what is “practicable”.
7.21. Article 2(1) of the Directive provides that: “member states shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to an assessment with regard to their effects.”
Article 4 divides projects subject to assessment into two classes: certain projects which are presumed to have “significant effects on the environment” and for which assessments are mandatory (Annex I projects), and other projects for which assessment is not presumed to be necessary but will be required if the project is likely to have “significant effects on the environment” (Annex II projects). The Annex I list includes nuclear power stations and radioactive waste disposal and storage installations. The minimum requirements of the assessment are defined in Articles 5 to 10 of the Directive, and addressed in further detail below. Directive 85/337/EEC was amended by Directive 97/11/EC, requiring Member States to take measures necessary to comply with the Directive by 14 March 1999. Directive 97/11 introduced amendments to inter alia the information to be provided and the range of projects subject to mandatory environmental assessment.20 Directive 97/11 does not apply to projects in respect of which a request for development consent has been submitted to a competent authority before 14 March 1999.21
1991 Espoo Convention
7.22. The 1991 Espoo Convention was adopted under the auspices of the UN Economic Commission for Europe.22 It commits parties to take all appropriate and effective measures to prevent, reduce and control significant adverse transboundary environmental impact
18 O.J. No. L 175, 5. 7.1985, p 40. 19 Art. 1(1) and (4). 20 Annex I is amended to include: “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, • 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.” 21 Directive 97/11/EC, Art. 3(2). 22 30 ILM 802 (1991). The Convention entered into force on 10 September 1997. The United Kingdom and the European Communities are parties, Ireland is a signatory. 118 from proposed activities;23 requires that parties of origin notify affected parties of certain proposed activities which are likely to cause a significant adverse transboundary impact and requires discussions between concerned parties.24 Article 1(vii) of the Convention defines “impact” broadly to include “any effect caused by a proposed activity on the environment including human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures or the interaction among these factors; it also includes effects on cultural heritage or socio-economic conditions resulting from alterations to those factors.”
Article 1(viii) defines “transboundary impact” as “any impact, not exclusively of a global nature, within an area under the jurisdiction of a party caused by a proposed activity the physical origin of which is situated wholly or in part within the area under the jurisdiction of another party”.
7.23. The party of origin is required to ensure that, in accordance with the provisions of the Convention, an environmental impact assessment is undertaken “prior to a decision to authorise or undertake a proposed activity listed in Appendix I that is likely to cause a significant adverse transboundary impact.”25 Appendix I includes installations solely designed for the production or enrichment of nuclear fuels, for the reprocessing of irradiated nuclear fuels or for the storage, disposal and processing of radioactive waste, and plainly includes the MOX plant. The Convention requires transboundary co-operation amongst parties. The documentation to be submitted to the competent authority of the party of origin must contain the information required in Appendix 2.
(b) Environmental Impact Statement: Common Requirements
7.24. The 1987 UNEP Principles, the 1985 EEC Directive and the 1991 Espoo Convention each contain provisions requiring the United Kingdom to ensure the preparation of a report containing an environmental impact statement (Environmental Report).26 They indicate (a) the benchmarks for determining what is “practicable”, and (b) what the United Kingdom is bound to cause to be prepared. For the purposes of Article 206 UNCLOS the benchmark requirement of the practicability of preparing a proper environmental report is central to this case. The Environmental Report, which is usually prepared by the developer, will be made publicly available for comment from members of the public and potentially affected states, and will serve as the basis upon which the national authorities will decide whether or not to authorise the project. As set out above, it will also serve as a basis for giving effect to the obligations inherent in co-operation.27
7.25. The 1987 UNEP Principles, the 1985 EEC Directive and the 1991 Espoo Convention indicate the minimum information in an environment impact statement or
23 Indicating what is “practicable” in terms of the substantive requirements to take “all measures necessary” to reduce pollution: see Chapter 9. 24 Art 2(1), (4) and (5). 25 Art. 2(3). 26 Although each instrument uses a different terminology. 27 See supra. para 7.10; see also Chapter 8, paras 8.110 et seq. 119 report. The requirements of these three instruments are more or less identical. They require the Environmental Report to include: • A description of the proposed activity;28 • A description of the potentially affected environment;29 • A description of practical and reasonable alternatives, including the no action alternative;30 • An assessment of the likely or potential environmental impacts of the proposed activity and alternatives, including the direct, indirect, cumulative, short-term and long-term effects;31 • An identification and description of measures available to prevent, mitigate or minimise or offset adverse environmental impacts of the proposed activity and alternatives, and an assessment of those measures;32 • An indication of gaps in knowledge and uncertainties which may be encountered in compiling the required information;33 • An indication of predictive methods and underlying assumptions as well as the relevant environmental data used;34 • An outline for monitoring and management programmes and any plans for post-project analysis;35 • An indication of whether the environment of any other State is likely to be affected by the proposed activity or alternatives;36 and • A non-technical summary of the information provided.37
7.26. These requirements are common to the three international instruments and reflect a general requirement under international law. They reflect what is “practicable” for the purposes of Article 206 of UNCLOS, and thereby establish the minimum requirements against which the United Kingdom’s compliance with Article 206 falls to be determined. The environmental statement is viewed in the context of UNCLOS as an “essential part of
28 1987 UNEP Principles, Principle 4(a); 1985 EC EIA Directive, Annex III, para 1; 1991 Espoo Convention, Appendix II, para (a). 29 1987 UNEP Principles, Principle 4(b); 1985 EC EIA Directive, Annex III, para 3; 1991 Espoo Convention, Appendix II, para (c). 30 1987 UNEP Principles, Principle 4(c); 1985 EC EIA Directive, Annex III, para 2; 1991 Espoo Convention, Appendix II, para (b). 31 1987 UNEP Principles, Principle 4(d); 1985 EC EIA Directive, Annex III, para 4; 1991 Espoo Convention, Appendix II, para (d). 32 1987 UNEP Principles, Principle 4(e); 1985 EC EIA Directive, Annex III, para 5; 1991 Espoo Convention, Appendix II, para (e). 33 1987 UNEP Principles, Principle 4(f); 1985 EC EIA Directive, Annex III, para 7; 1991 Espoo Convention, Appendix II, para (g). 34 1991 Espoo Convention, Appendix II, para (f). 35 1991 Espoo Convention, Appendix II, para (h). 36 1987 UNEP Principles, Principle 4(g); 1985 EC EIA Directive, Article 7; the requirement is implicit in the requirements of the 1991 Espoo Convention, which is limited to projects with potential transboundary consequences. 37 1987 UNEP Principles, Principle 4(h); 1985 EC EIA Directive, Annex III, para 6; 1991 Espoo Convention, Appendix II, para (i). 120 a comprehensive environmental management system”.38 An environmental statement which fails to meet the standards required by Article 206 implies also a failure on the part of the State concerned to “take all necessary measures to ensure that activities under [its] jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment”, as required by Article 194(2) of UNCLOS. The Virginia Commentary underscores the central requirement of environmental assessment, and the environmental statement.39
(c) Environmental Impact Assessment: The Need to Update
7.27. The three instruments defining the precise requirements of the content of an Environmental Report are silent about what is to happen when a project is initiated and an environmental assessment carried out, only for there to be a significant delay (for example 5 or more years) between the preparation of the environmental statement and final approval by the relevant national authorities. An environmental assessment, including any statement or report, is necessarily limited to a particular time and place, and is not a license to develop the same plant in another place or at another time. But this is how the 1993 MOX Environmental Statement is treated by the United Kingdom authorities. As described below, the Environmental Statement for the MOX plant was prepared in 1993, approved by the local municipality in 1994, and only approved by the national authorities in the process of reaching the decision to authorise the operation of the MOX plant in October 2001 (i.e. some eight years after the 1993 MOX Environment Statement was prepared).
7.28. This issue has not been considered by the courts and tribunals authorised to review compliance with the Directive 85/337/EEC and the 1991 Espoo Convention. However, reference was made to the issue in one case before the European Court of Justice, which concerned the situation in which a project was initiated but not completed prior to the date for implementing Directive 85/337/EEC (1988), and then came up for a fresh consent from the national authorities after 1988. Although the point did not eventually have to be decided by the Court, Advocate-General Mischo expressed his “fear that the absence of any provision regarding the period of validity of consents will be the source of many difficulties”, stressing that “we are dealing with the environment, a field in which certainties become obsolete particularly rapidly. Who cannot call to mind some grandiose project drawn up ten years ago, or even more recently, in the name of economic development (sacrosanct) or simply of progress, unopposed at the time but not implemented for lack of funds, and which no-one would dare to recommend today because of the foreseeable impact on the environment?”40
7.29. If the matter has not come before the European courts, it has been addressed by the International Court of Justice in relation to general international law. In the Case Concerning the Gabcikovo-Nagymaros Project the International Court was presented with a situation in which it was called upon, in 1997, to direct the parties to the appropriate standards of environmental protection to be applied in the future in respect of a project which had been agreed and initiated in 1977. Recognising that the Project’s impact upon,
38 Virginia Commentary, para 7.8 above. 39 Ibid. 40 Case C-81/96, Burgemeester en wethouders van Haarlemmerliede en Spaarnwoude and Others v Gedeputeerde Staten van Noord-Holland, 1998 ECR I-3923, at pars. 34 and 32. 121 and its implications for, the environment were potentially significant, the Court stated that “In order to evaluate the environmental risks, current standards must be taken into consideration”.41 The Court went on: “Owing to new scientific insights and to a growing awareness of the risks for mankind – for present and future generations – of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. […] For the purposes of the present case, this means that the Parties together should look afresh at the effects on the environment of the operation of the Gabcíkovo power plant.”42
7.30. The requirement that States must give proper weight to new standards, including assessing and re-assessing the effects of a project on the environment, is reflected also in the Separate Opinion of Judge Weeramantry, who joined in the majority. His Separate Opinion includes a section entitled “The Principle of Continuing Environmental Impact Assessment”. That part of the Opinion explains the rationale which lay behind paragraph 140 of the International Court’s Judgment: “[E]nvironmental impact assessment means not merely an assessment prior to the commencement of the project, but a continuing assessment and evaluation as long as the project is in operation. This follows from the fact that EIA is a dynamic principle and is not confined to a pre-project evaluation of possible environmental consequences. As long as a project of some magnitude is in operation, EIA must continue, for every such project can have unexpected consequences; and considerations of prudence would point to the need for continuous monitoring.”43
7.31. The logic behind this approach applies equally to the phases between the initiation of a project (1993 in the case of the MOX plant) and the final authorisation of its operation (2001 in the case of the MOX plant). It arises also from the “principle of contemporaneity in the application of environmental norms” which is reflected in paragraph 140 of the International Court’s judgment. As Judge Weeramantry puts it: “In the application of an environmental treaty, it is vitally important that the standards in force at the time of application would be the governing standards”.44
7.32. The principle applied in the Gabcikovo-Nagymaros case is of general application. It concerned a joint project between two States pursuant to a treaty between them, but applies equally to a project undertaken by one State which is to be developed in a manner consistent with an international convention, in this case UNCLOS.
41 1997 ICJ Reports, p 7, para 140. 42 Ibid (emphasis added). 43 1997 ICJ Reports, p 7, at 111. 44 Ibid, p 115 (emphasis in original). 122
C. THE FACTS
7.33. In the present case the Environmental Statement for the proposed MOX plant was prepared by BNFL in 1993. It is a short document (especially as compared with an equivalent Environmental Statement prepared for a smaller proposed US MOX facility in 2000: see Volume 4 of this Memorial). The 1993 MOX Environmental Statement includes no assessment of the direct consequences of the MOX plant in relation to the extension of the life of the THORP plant, or international transports, or waste storage consequences at the Sellafield site. The MOX Environmental Statement has never been updated since 1993 (notwithstanding Ireland’s requests that it be updated to take into account inter alia the United Kingdom’s commitment to reduce concentrations of radionuclides in the Irish Sea to “close to zero” by 2020).
7.34. The Statement provided the basis for the authorisation by the local council (in 1994) for construction, and the authorisation in October 2001 by the United Kingdom Government for the operation of the MOX plant. The information contained in the 1993 Environmental Statement may also have been relied upon by the United Kingdom in its submission to the European Commission in relation to the required Article 37 EURATOM Opinion. Ireland first objected to the Environmental Statement, on the grounds of its manifest inadequacies, in 1994.45 Ireland continued to object to the Statement regularly thereafter.46 The inadequacies of the 1993 Statement by reference to the requirement of Article 206 of UNCLOS have tainted the entirety of the authorisation process, including the 1997 European Commission Opinion (pursuant to Article 37 EURATOM) and the October 2001 decision by the United Kingdom.
THE 1993 ENVIRONMENTAL STATEMENT
7.35. The 1993 Environmental Statement (vol 3(3), Annex 103) was prepared by BNFL in October 1993 in connection with its application to Copeland Borough Council. That application was limited to the construction of the MOX plant, and did not concern an application for permission to operate the MOX plant.47 It is important to note that the application to build the MOX plant was submitted prior to the grant of an operating license for the THORP plant, which was at that time under consideration by the relevant UK authorities. There has never been an Environmental Statement prepared for the THORP plant. The authorisation of the THORP plant did not consider the possible relationship of that plant to a future MOX facility, and did not therefore include any environmental assessment of the increased and prolonged discharges from THORP (resulting from the extension of the life of the THORP plant) which will be consequential to the operation of a MOX plant.
7.36. The 1993 Environmental Statement was prepared on the basis of the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, which sought to put into English law the requirements of Directive 85/337/EEC.
45 Infra., para 7.50; and Chapter 4, para 4.8. 46 See in particular the letter of 23 December 1999, infra. para 7.54 et seq. 47 The 1993 Environmental Statement, vol 3(3), Annex 103, preface (BNFL “has prepared this Environmental statement in connection with its application to Copeland Borough Council for consent to build a facility for the manufacture of Mixed Oxide (MOX) fuel assemblies”, emphasis added). 123
7.37. The Environmental Statement runs to 51 pages. It comprises a summary of five pages, followed by five chapters. Chapter 1 (10 pages) describes BNFL, its activities in the nuclear industry and the procedures it followed in applying for consent to construct the MOX plant. In describing the consent procedure it states: “This Environmental Statement does not form part of the formal applications which BNFL will make to the NII for agreement to the commencement of the various stages of the project.” (para. 1.9)
That appears to suggest that a future application to the NII for consent to operate the MOX plant will include a further Environmental Statement. In fact no further Environmental Statement was prepared, and the 1993 Statement was relied upon by BNFL in its application for operating consents.
7.38. Chapter 2 (2 pages) is entitled “The Need for the Development”. It proceeds on a number of assumptions that have been shown to be false. First, it assumes that the market for MOX fuel “will expand significantly over the next few years to over 300 tonnes per year by the end of the century” (para. 2.6). BNFL’s “conservative” estimates indicated demand for MOX fuel of 305-370 tonnes per year by 2000 (para. 2.7). As a report commissioned by Ireland from Professor Gordon Mackerron makes clear, those assumptions were inaccurate and actual production ion 2000 was significantly lower.48
7.39. Second, the Environmental Statement claims that the development of the MOX plant will “help secure the Company’s continuing profitability and the important contribution it makes to the UK economy” (para. 2.9). But in November 2001 the United Kingdom announced that ownership of the MOX plant was to be taken away from BNFL, at its own request, and vested in a new Liabilities Management Authority.49 That announcement indicated that the Sellafield site (including the MOX plant) was being treated by the United Kingdom Government as a “liability”: “I [the Secretary of State for Trade and Industry] therefore propose to set up a Liabilities Management Authority responsible for the Government’s interest in the discharge of public sector nuclear liabilities, both BNFL’s and the [United Kingdom Atomic Energy Authority’s]… [T]o enable the LMA to exercise its role across the whole public sector civil nuclear liabilities portfolio, the Government now propose to take on responsibility for most of BNFL’s nuclear liabilities and the associated assets. The most significant of those will be the Sellafield and Magnox sites.”50
7.40. Chapter 3 of the 1993 MOX Environmental Statement (4 pages) is entitled “Site Selection”. Among the factors mentioned in identifying a suitable site is the need for “a nuclear site which … minimises the transport requirements for raw nuclear materials” (para. 3.1). The Statement goes on to state that “much of the plutonium dioxide which will be used in the manufacture of MOX fuel assemblies is either in store, or will originate, at Sellafield” (para. 3.3). No mention is made of the need or intention to transport large amounts of plutonium and other nuclear materials from Germany and Japan or any other countries. No mention is made of the fact that the site is located on the coast of the Irish Sea. And no mention is made of the United Kingdom’s commitment, given a year earlier at
48 First Mackerron Report, vol 2, Appendix 10, p 501 (table C.1, column 5, shows actual production in 2000 at less than 200 tonnes). 49 See Chapter 2 paras, 2.64-69. 50 House of Commons Hansard Debates, 28 November 2001, col. 991-2, at vol 3(2), Annex 93. 124 the United Nations Conference on Environment and Development, not to store or dispose of nuclear material near the marine environment.51
7.41. Chapter 3 is notable for another reason. It concludes with the following observation: “From an operational point of view, the chosen site has the following additional advantages as a site for SMP; • Integrated access with THORP will allow direct transfer of plutonium dioxide with consequential transport advantages; • Management and operations can be combined with THORP; • Facilities, such as the discharge stack, changerooms and services can be shared with THORP.” (para. 3.9).
The passage confirms the integrated relationship between the MOX plant and the THORP plant. In fact, the MOX plant is constructed as an extension of the THORP plant, and physically adjoins it. Nevertheless, as the following chapter of the Statement confirms, no mention was made of the additional and prolonged discharges from the THORP plant which would arise as a result of this proximity to, and operational connection with, the MOX plant.
7.42. Chapter 4 (10 pages) is entitled “The Proposed Development”. It begins with the statement that in considering “control of the radiological impact on the environment” BNFL has proceeded on the basis that the construction and operation of the MOX plant is based upon “a fundamental requirement for nuclear safety that the risk presented by a facility must be as low as reasonably practicable” (para. 4.1). It is to be noted that the standard applied by BNFL differs from, and is significantly lower than, that which the United Kingdom is bound as a matter of international law to apply by UNCLOS (inter alia to minimize “to the fullest possible extent” the release of radioactive substances (Article 194(3)(a)) and by the 1992 OSPAR Convention (inter alia to use “best available techniques” and “best environmental practice … including … clean technology” (Annex I, article 1(1)).52 This contrasts with the subsequent statement that the operation of the MOX plant will meet “all international requirements” (para. 4.3), which it plainly does not – as described in Chapter 9.53
7.43. This chapter includes a description of the process of manufacturing MOX fuel (paras. 4.20 to 4.24). That section makes no mention of the fact that all the plutonium dioxide which is used to manufacture MOX fuel will originate from the THORP reprocessing plant, which process will lead to significant additional discharges of radioactive substances into the Irish Sea and into the atmosphere, as well as production of radioactive wastes. That section follows with a description of the effluents and wastes which will be produced by the MOX plant (it makes no mentions of the effluents and wastes which will be produced by the THORP plant, which will be far greater in volume).54 In relation to solid wastes it is stated that the annual volume of plutonium- contaminated material arising from the MOX plant will be “about 120m3” (para. 4.35).
51 See Chapter 9, para 9.35. 52 Chapter 9, para 9.45. 53 Ibid, at e.g. paras 9.127-145. 54 See Chapter 3, paras 3.27 et seq. 125
7.44. No mention is made of any other solid wastes arising or of the volume of additional solid wastes which will be generated in the process of obtaining the plutonium dioxide (from the THORP plant) needed to manufacture the MOX fuel. As indicated in Chapter 3, the additional wastes arising from the THORP plant will be very significant in volume.55 In relation to the solid wastes arising it is stated that all plutonium contaminated material will be “routed to the proposed new Waste Treatment Complex (WTC) where it will be compacted to approximately half its volume before being prepared for ultimate disposal in a manner consistent with the Company’s and the UK’s strategy for the disposal of intermediate level waste” (para. 4.35). This in effect means permanent storage at Sellafield, since it cannot presently be disposed of in any other way.
7.45. In relation to liquid effluents, it is stated that these will be “minimal” since MOX fabrication is an “essentially dry process” (para. 4.37). The volumes of “[e]ffluent arisings from floor washings and fuel assembly wash will be about 107m3/yr”, which will be “conditioned as necessary to make them suitable, after monitoring, for discharge to the sea” (para. 4.37). What this means is that radioactive liquids will be discharged directly into the Irish Sea.
7.46. The 1993 MOX Environmental Statement makes no mention of the volume of additional liquid effluents which will be generated by the THORP plant in the process of obtaining the uranium dioxide and plutonium dioxide needed to manufacture the MOX fuel, and then discharged into the Irish Sea. As discussed in Chapter 3, these too will be very significant in volume.56
7.47. Gaseous effluents will be released through the existing THORP stack (indicating the interconnection between the two plants). The Environmental Statement does not make it clear how radioactive they will be (see para. 4.41 of the 1993 Environmental Statement). Some of these effluents will reach the Irish Sea, either directly or by rain or run-off. Again, the Environmental Statement makes no mention of the volume of additional gaseous effluents which will be generated by the THORP plant in the process of obtaining the plutonium dioxide needed to manufacture the MOX fuel, and then discharged into the atmosphere. Once again, the effluents arising from the THORP plant will be far, far greater than those arising from the MOX plant.57
7.48. Chapter 5 (21 pages) is entitled “Assessment of Environmental Effects”. 3 pages deal with employment. 2.5 pages deal with traffic (but only by road: there is no mention of transports by sea). 1 page deals with noise pollution. 3.5 pages deal with “landscape and visual”. 1 page deals with soil. 1 page deals with water (not including the marine environment). 1 page deals with “air and climate”. 1.5 pages deal with “flora and fauna” (although none in the marine environment”). Half a page deals with interactions, material assets and cultural heritage.
7.49. That leaves just 6 pages on the impact of radiological discharges. The Sheate Report states that:
“[s]ince the scope of the assessment has been narrowly drawn only the direct radiological aspects are considered, with no attempt to identify indirect or cumulative impacts in relation to radionuclides or other emissions. The information
55 Ibid. 56 See Chapter 3, para 3.32. 57 Ibid. 126
provided for direct radiological aspects is insufficient to judge the basis on which the impact magnitude is predicted. All aspects therefore score similarly as unsatisfactory/poor.”58
IRELAND’S CONCERNS ABOUT THE 1993 ENVIRONMENTAL STATEMENT (1993-2001)
7.50. In 1994 Ireland communicated to the United Kingdom its views as to the inadequacies of the Environmental Statement, summarising its position as follows: “The Environmental Statement does not provide sufficient and adequate information to enable the effects on the environment of the MOX plant to be assessed and … it does not comply with the relevant requirements of the EC Directive on Environmental Impact Assessment.”59
7.51. In its submission Ireland set out its concerns. It noted in particular the failure to • provide information on the relationship between the plant and the nearby marine environment of the Irish Sea; • consider the effect of further radioactive discharges on the ecology of the marine environment, including marine invertebrate fauna, algae, plankton, and commercial and sport fish; • assess the consequences of transport accidents or of accidents to the proposed MOX plant, or the impact of exposures of members of the public, either near the site or in the nearest Member State, Ireland; and • provide any information about the radiation doses which might be received by members of the public in Ireland during the normal operation of the MOX plant.
Other important concerns related inter alia to: the failure to take proper account of the area’s topography, geology and seismology; the failure to provide information on demography and meteorology; the failure to provide data on the nature and quantities of materials to be used in the production processes; the failure to provide complete information on the nature and quantities of the effluents and wastes to be generated by the MOX plant, or the methods of processing them; the absence of complete information on decommissioning and its effects; and the failure to provide information on the environmental monitoring programmes to be undertaken by BNFL.
7.52. No response was then received to Ireland’s expression of concern.
7.53. No response has ever been received.
7.54. Ireland repeatedly expressed its concerns about these aspects of the proposed MOX plant, in particular in its letter of 23 December 1999 to the UK Secretary of State for the Department of the Environment, Transport and the Regions.60 By this time more than five years had passed since the Environmental Statement had been published, and no
58 Sheate Report, vol 2, Appendix 6, at p 229. 59 Submission to Copeland Borough Council on Proposed Sellafield Mixed Oxide (MOX) Plant, 1994, vol 3(1), Annex 8. 60 Vol 3(1), Annex 20. 127 supplement had been prepared to update it. Ireland wrote to the United Kingdom reiterating its earlier concerns (in particular in relation to the inadequate assessment of the impact of discharges into the marine environment) and setting forth its view that the environmental assessment of the plant was further deficient by reason of the fact that it failed to take any account of the material developments in English, EC and international law which had occurred since 1993 for the protection of the marine environment of the Irish Sea. These legal developments, which had all come into effect for the United Kingdom since the 1993 Environmental Statement was published and approved, include the 1982 UNCLOS, the 1992 OSPAR Convention, the 1998 Sintra Ministerial Statement, the 1997 entry into force for the United Kingdom of the 1991 Espoo Convention, and the amendments to EEC Directive 85/337.
7.55. In its letter of 23 December 1999 Ireland stated: “The EIS which was prepared in 1993 does not clearly identify the discharges of radioactive material into the marine environment or assess their impact. It fails to consider the alternatives to the proposed activity, and it does not indicate predictive methods and assumptions. It does not provide any information as to the international movements of radioactive materials associated with the operation of the plant. Moreover, the EIS has been prepared on the assumption that discharges of radioactive material from the MOX operations would be internationally lawful and without taking into account the need to reduce concentrations in the environment to “close to zero” by the year 2020. Further, the EIS is premised on operations which are clearly not precautionary in character, assuming as they do the discharge of new radioactive materials into the marine environment. Finally, the consultation procedure on the economic justification of the plant has been carried out on the basis of inadequate information having been made available to the public. Despite requests from the Irish Government for such information […] the UK Government has refused to disclose this information to the Irish Government. In light of the above points, a decision to authorize the operation of the MOX plant would be based upon an EIS which was incompatible with the UK obligations under the 1982 UNCLOS, the 1991 Espoo Convention and Directive 97/11/EC and consequently be in violation of the requirements of those instruments. Such authorization would violate the obligations of the United Kingdom to apply a precautionary approach and to inter alia protect and preserve the marine environment, to take all possible steps to prevent and eliminate pollution from land based sources, and to reduce concentrations in the environment to “close to zero” for artificial radioactive substances, by the year 2020 (as required by the 1982 UNCLOS, 1992 OSPAR Convention and the 1998 Sintra Ministerial Declaration).”
7.56. The United Kingdom took more than ten weeks to respond to the letter of 23 December 1999 (see United Kingdom letter of 9 March 2000). That response from the UK Minister for the Environment apologised for the delay in responding and stated: “Whilst I am, of course, grateful to you for your further views and comments, I am sure that you understand why I cannot address these points in detail while we are still in the process of coming to a final decision on the full operation of the plant. I am also sure that you will appreciate that the implications of the data falsification incident at the Sellafield MOX Demonstration Facility will have some bearing on our decisions. Whatever our final decision, we do plan to publish 128
a decision document which will explain our reasons in full. I will ensure that you are sent a copy immediately it is published.”61
7.57. The United Kingdom did not respond further to Ireland’s concerns. The decision document on the MOX plant and international movements was published on 3 October 2001. It made no mention whatsoever of the concerns raised by Ireland in relation to the UNCLOS, including in relation to the 1993 Environmental Statement.
THE 1997 EURATOM OPINION
7.58. In the course of the provisional measures proceedings before ITLOS, the United Kingdom sought to make a great deal of an Opinion prepared by the European Commission pursuant to Article 37 of EURATOM.62 The Opinion concluded that “in normal operation and in the event of an accident of the magnitude considered in the general data” the implementation of the plan for the disposal of radioactive waste from the MOX plant “is not liable to result in radioactive contamination significant from the point of view of health, of the water, soil or airspace of another Member State” (emphasis added). A number of points may be made. First, the Opinion does not constitute an environmental assessment – it addresses only the human health-related aspects of MOX discharges and not the environmental aspects. This is because EURATOM has no competence at all in relation to environmental aspects. Second, the Opinion is very limited: it does not address (even in relation to human health) discharges arising from THORP plant, the implications of additional waste storage at Sellafield, or the risks arising from international transports. An earlier Opinion was prepared in relation to the THORP plant, and adopted by the European Commission in April 1992.63 It too only addresses human health issues, not environmental issues. And it does not address waste storage or international transportation issues. Ireland has never been provided with the documents which the United Kingdom submitted to the European Commission in support of the application. Ireland therefore cannot indicate to the Tribunal whether it took any account of the MOX plant. It is highly unlikely that it did. The third point is that the approach taken by the Commission in carrying out its Article 37 functions – especially in relation to Sellafield – has been subject to considerable criticism from independent third parties.64
THE 55 QUESTIONS
7.59. A number of the questions addressed by Ireland to the United Kingdom pursuant to the ITLOS Order of 3 December 2001 were concerned with environmental impact assessment. Questions 41, 42 and 43 asked the United Kingdom whether it has assessed the impacts (actual and potential) of planned and unplanned discharges from the Sellafield site as a whole and from the MOX and THORP plants on various non-health related aspects of the Irish Sea, including biota, fishing and other legitimate uses, and reduction of amenities. In answering those questions the United Kingdom focused – once again – on
61 Vol 3(1), Annex 22. 62 Vol 3(3), Annex 124. 63 Vol 3(3), Annex 122. 64 See STOA Report on Possible Toxic Effects from the Nuclear Reprocessing Plants at Sellafield and La Hague, November 2001, vol 3(3), Annex 105. 129 health related aspects. It conspicuously did not confirm that these other (non-human health related) aspects of the marine environment had been subject to assessment.65
7.60. Ireland also asked: “What aspects of the 1993 Environmental Statement were given detailed reconsideration, by whom, when and with what results, in the light of the United Kingdom’s acceptance of obligations under (a) [UNCLOS]; (b) the 1992 OSPAR Convention: (c) the 1998 Sintra Ministerial Declaration; and (d) the amendments to EEC Directive 85/337 introduced by Directive 87/11/EC?”
The full answer given by the United Kingdom was as follows: “In the UK’s written response to Ireland’s Statement of Claim requesting provisional measures (paragraph 31), as put before the ITLOS Tribunal, the UK made clear that decision taken on 3 October 2001, that the manufacture of MOX fuel was justified in accordance with the EC Basic Safety Standards (96/29/EURATOM), was reached after the conclusion of a process lasting 8 years during which time the UK had insisted that environmental and other requirements for the construction and operation of the MOX plant had been satisfied (see paragraphs 56-64 of that decision document). In reaching their decision on 3 October the Secretaries of State were satisfied that these requirements had been met.”
From this answer it appears reasonable to conclude that the 1993 Environmental Statement was never given detailed reconsideration by the United Kingdom in light of the United Kingdom’s obligations under UNCLOS, the 1992 OSPAR Convention and the 1998 Sintra Ministerial Declaration.66
7.61. The United Kingdom’s answer directs the reader to paragraphs 56 to 64 of the October 2001 Decision document.67 These paragraphs make no mention of UNCLOS, the 1992 OSPAR Convention or the 1998 Sintra Ministerial Declaration. Nor do they indicate that the 1993 Environmental Statement was subject to any reconsideration.
THE INADEQUACIES OF THE 1993 ENVIRONMENTAL STATEMENT: AN INDEPENDENT REPORT
7.62. The 1993 Environmental Statement is inadequate. It did not meet the standards applicable in 1993. It does not meet the standards applicable when the Decision of 3 October 2001 was adopted. This is confirmed by an independent report which Ireland has commissioned from Mr William Sheate (Senior Lecturer, Imperial College, University of London).68 The Sheate Report concludes that: “The MOX [Environmental Statement] is shown to be quite inadequate, even for the standards prevalent at the time in the early 1990s, and especially given the nature of the proposal. Overall, the [Environmental Statement] was given an E grading (poor, significant omissions or inadequacies), against the 1992 criteria
65 Vol 3(1), Annex 7, pp 79-80. 66 Ibid. 67 Vol 3(2), Annex 92, pp 235-8. 68 Vol 2, Appendix 6 at p 238. 130
and those of 2001 … It is of particular concern that the relationship between MOX and THORP would appear never to have been subjected to an environmental assessment process. No EIA was required for THORP (which preceded legal requirements), nor did the MOX [Environmental Statement] address the close relationship between these two facilities. The consequential, indirect and cumulative effects associated with this relationship, especially those relating to transportation of spent plutonium fuel to THORP to supply MOX, radioactive discharges associated with THORP, and the generation of radioactive waste at all stages of the MOX process (including from THORP), have not therefore been addressed.”69
7.63. In reaching this conclusion the Sheate Report considered the 1993 Environmental Statement by reference to two sets of criteria, namely (1) the 1992 guidelines from the Institute of Environmental Assessment; (2) the 2001 guidelines from the Institute of Environmental Management and Assessment.70 The Sheate Report also considers the 1993 Environmental Statement in comparison with other environmental statements, namely (1) environmental statements prepared in the United Kingdom around 1993 which addressed other projects (in particular the South East London Combined Heat and Power Plant), (2) the 1996 environmental statement prepared by UK Nirex in support of its proposed Rock Characterisation Facility in the context of a possible Deep Waste Repository to be constructed at Sellafield, and (3) the 2000 Environment Report prepared by the developer of a proposed MOX plant in the United States (it is to be noted that this is intended to be a far smaller facility, producing only 3.5 tonnes of MOX fuel per year, as compared with the proposed 120 tonnes per year output from the Sellafield MOX plant).
7.64. These three environmental statements serve to confirm the inadequacy of the 1993 Environmental Statement: “Comparison with the EIA process for the South East London Combined Heat and Power Plant (SELCHP) has shown how the ES for that proposal, although initially inadequate, was supplemented twice with substantial, additional information on the principal pollutants, including their assessment methodologies. In that case, the provisions for supplying further information were applied. In the case of MOX, Copeland Borough Council would appear to have authorised SMP without requiring further information from BNFL to supplement what is a very poor environmental statement …The comparison with the US consenting process for their MOX plant is stark. There, a lengthy and comprehensive procedure is being followed, which has included extensive public consultation stages, and further iterations of an environmental report by the proponent. The information being provided by the whole EIA process in the US is likely to amount to thousands of pages, compared to a mere 50 pages in the case of the SMP ES.”71
7.65. The review was undertaken by two independent reviewers. A table setting out their grading of each aspect of the Environmental Statement is at page 207 of Volume 2. The results set out in that table are summarised as follows: “The review of the environmental statement produced for the MOX plant is clearly inadequate in most respects. The independent reviews were generally consistent plus or minus one grade, and most frequently identical in the omissions
69 Ibid, at p 201. 70 Ibid, at p 205. 71 Ibid at paras 7.2-7.3. 131
and inadequacies highlighted. A number of the key issues on their own would have been cause for concern, but together make this a very poor example of an environmental statement. Moreover, the often selective and partial evaluation provided throughout the ES casts some doubt even on the reliability of those areas where some assessment is provided. For example, comments are often made in passing which suggest other aspects that should be addressed, only to find that these aspects are not addressed in the ES. A prime purpose of an environmental statement is that anyone reading it (including decision-makers, stakeholders or members of the public) should be able to understand the basis on which the authors have come to their conclusions. This is manifestly not the case with the MOX [Environmental Statement].”72 (emphasis added)
7.66. In summary, the Sheate Report concludes: “The review of the 1993 [Environmental Statement] for the MOX Sellafield plant (SMP) against the review criteria reveals considerable inadequacies, and in particular the inadequate treatment of key areas which the [Environmental Statement] could legitimately be expected to have addressed in some detail. These include, in particular:- • Lack of scoping • Lack of consideration of impacts other than direct effects • Lack of consideration of alternatives • Inadequate baseline data • Lack of significance evaluation methodology • Inadequate consideration of decommissioning • Lack of consideration of accidents • General lack of description of assessment methodologies.”73
The Report considers the adequacy of the 1993 Environmental Statement by reference to other examples, prepared during the same period and subsequently.
OTHER UK ENVIRONMENTAL STATEMENTS IN THE EARLY 1990S
7.67. The Sheate Report compares the MOX Environmental Statement with the Environmental Statement for a similar, though less potentially hazardous, project proposed at around the same time as the MOX plant was first being scrutinised.74 The South East London Combined Heat and Power Plant (SELCHP) was proposed in 1989 in the London Borough of Lewisham. This was the first plant in the UK to be built specifically to produce electricity and heat from the combustion of waste. The Environmental Statement for SELCHP was a comparable length to that of MOX – approximately 50 pages. It contained considerably more information on the emissions which would be caused by the plant. However, the data provided, and the assessment, were considered by stakeholders and the planning authority as inadequate, and further information was required. Two
72 Ibid at para 3.1, (emphasis added). 73 Ibid, Executive Summary (p 201). 74 Ibid, pp 213-214. 132 supplementary Environmental Statements were provided, and planning consent was granted by Lewisham Borough Council on 21 May 1990, but subject to conditions including the provision of further information to address outstanding issues not covered adequately by the original EIA.
7.68. The Sheate Report concludes that: “While clearly the MOX plant and the SELCHP incinerator are different kinds of installations, they share many of the same issues and concerns. Key concerns of local planning authorities and the public about incinerators include traffic and transport of waste material to the site, waste residues, atmospheric emissions, groundwater contamination and noise… By comparison with the MOX ES, therefore, for a development where emissions were important, but where there was no issue of radioactive discharges or waste, the original SELCHP ES was supplemented twice. Simply in terms of the number of pages, the two Addenda together amounted to more than twice the length of the original [Environmental Statement].”75 (emphasis added)
7.69. Ireland finds it extraordinary that a project which did not involve nuclear waste, and which fell to be assessed before the MOX plant, was required by the authorities to submit far more detailed information that was ever submitted in relation to the MOX plant.
THE 1996 NIREX ENVIRONMENTAL STATEMENT AND ITS REJECTION BY THE UK INSPECTOR AND THE UK GOVERNMENT
7.70. The Sheate Report also compares the MOX Environmental Statement to that prepared in 1994 for the proposed NIREX Rock Characterisation Facility. That facility, promoted by UK NIREX Ltd, was intended “to provide data on the geological and hydrogeological characteristics of the potential deep repository host rocks … and overlying strata, for model validation for long-term safety purposes, for repository design and for the selection of repository construction methods.”76 The long-term plan was to build a deep- waste repository for nuclear waste under the Irish Sea.
7.71. Cumbria County Council initially refused planning permission. There was then an appeal inquiry in 1995-6, during which the environmental statement was subjected to intense scrutiny. The Inspector criticised key aspects of the statement, including: • The process of site selection; • The lack of consideration of alternatives; • The scientific uncertainties and technical deficiencies in the proposals; • The impact upon the Lake District National Park.
7.72. The proposal was subsequently rejected in 1997 by the then Secretary of State for the Environment (see vol 3(3), annex 118). He considered that the adverse impacts on visual amenity, a protected species and the natural beauty of the National Park were serious, and in themselves warranted refusal of the application. Particularly significantly for present purposes, he then went on to say that:
75 Ibid, paras 5-3-5.5, emphasis added. 76 Ibid, para 1.9. 133
“Further, the Secretary of State also remains concerned about the scientific uncertainties and technical deficiencies in the proposals presented by Nirex, which would also justify refusal of this appeal. He is also concerned about the process of selection of the site and the broader issues of scope and adequacy of the environmental statement which again would justify refusal of this appeal.”77
The Sheate Report concludes that, “[g]iven the location of the MOX proposal within the Sellafield works it might have been expected that the Nirex case would have had some influence on BNFL and on the planning authority in relation to the MOX plant at the time consent was given in 1996.”78 However, that is clearly not the case.
7.73. One important point of contrast between the Nirex case and that of MOX is the perceived relationship between the project directly under assessment and other, related projects. As mentioned above, the Nirex Rock Characterisation Facility was to study the local physical conditions with a view to the eventual construction of an intermediate or deep-level waste repository under the sea. The two facilities were therefore linked in a similar manner to THORP and MOX. However, it is striking that, although “by the closing of the Nirex Inquiry in February 1996 it was clear that the go-ahead for the Sellafield [Rock Characterisation Facility] was far from inevitable”,79 the Secretary of State and the Inspector at the Nirex Inquiry took the view that “there is a link between the [Rock Characterisation Facility] and the [Deep Waste Repository]. The Secretary of State concludes that the [Rock Characterisation Facility] should not be considered without reference to the effects of the [Deep Waste Repository].”80
7.74. As the Sheate Report points out, this insistence on assessing the environmental impact of a related project which was at that time highly speculative contrasts strikingly with the absence of any assessment of MOX during the THORP authorisation process: “The decision to go ahead with THORP had already prejudged any decision on alternatives for MOX, since MOX is seen as integral to the operation of THORP and the existence of THORP is seen as integral to the location of MOX. However, MOX had not been addressed at the time THORP was given the go-ahead, when the potential environmental effects would have been most appropriately assessed.”81
THE 2000 US MOX PLANT ENVIRONMENTAL REPORT
7.75. Duke Cogema Stone & Webster (DCSW) are proposing to construct and operate a Mixed Oxide Fuel Fabrication Facility (“US MOFFF plant”) on a site next to the Savannah River near Aiken, South Carolina. The plant is to be owned by the US Department of Energy, but designed, constructed, operated and deactivated by DCSW, which is a private company. As part of the US regulatory process the owner and operator are required to prepare an Environmental Report, which will be used by the US Nuclear Regulatory Commission in support of its efforts to prepare an Environmental Impact Statement.
77 Ibid, emphasis added. See vol 3(3), Annex 118. 78 Ibid, para 1.10. 79 Ibid, para 4.4. 80 Ibid, para 4.8. 81 Ibid, para 4.7. See also para 4.14. 134
7.76. The proposed US MOFFF plant is not intended to be operated as a commercial activity. Rather, it is being proposed as a consequence of the determination by the United States Government that there is a need for a national programme to dispose of surplus United States plutonium, and that this need should be addressed by converting 36.4 tonnes of surplus weapons-grade plutonium into MOX. It will also cater for the implementation of the joint United States and Russian Federation Agreement to convert 28.2 tons of surplus Russian plutonium to MOX. It is apparent that the US plant will produce significantly smaller quantities of MOX fuel than the MOX plant at Sellafield. Alongside the US MOFFF plant it is proposed that there will be constructed and operated a Pit Disassembly and Conversion Facility for disassembling nuclear weapon pits and reconverting the recovered plutonium, as well as plutonium from other sources, into plutonium dioxide to be used as “feedstock” for the US MOFFF plant (this is equivalent to the role of the THORP plant at Sellafield). It is apparent that the US plant will produce far less pollution than the MOX plant at Sellafield, including per unit (tonne) of MOX fuel produced.82
7.77. In December 2000 DCSW prepared an Environmental Report under contract to the US Department of Energy, and it was submitted to the US Nuclear Regulatory Commission. A copy of the DCSW Environment Report is reproduced in full at Volume 4 of this Memorial. The Environmental Report for the US MOFFF plant is intended to address “all of the site-specific impacts associated with the licensing, construction and operation” of the MOFF.83 The Environmental Report comprises an extensive study that runs to 483 pages. It addresses all the matters that were not considered by BNFL’s 1993 Environmental Statement and have never been addressed by the United Kingdom authorities. The Environmental Report concludes that “Although the proposed action does have environmental impacts, the impacts are small and consequently acceptable. The environmental impacts are outweighed by the benefit of enhancing nuclear weapons reduction”.84
7.78. The US MOFFF Environmental Report provides a degree of detail which stands in sharp contrast to the 1993 MOX Environmental Statement. Specifically, the US Environmental Report: • addresses alternative actions, including the “no action alternative”; • addresses alternative sites; • addresses the environmental impacts of the Pit Disassembly and Conversion Facility (which processes and produces the plutonium dioxide) “as part of the discussions on cumulative impacts” (ES-3); • assesses in great detail the current state of the environment which will receive the gaseous and liquid discharges, and seeks to identify the cumulative effects of the discharges from the US MOFFF plant, including the discharges from plutonium dioxide production facility; • assesses the environmental effects of international transports of nuclear materials destined for use at the plutonium dioxide production facility and the US MOFFF plant (in a separate Statement: Surplus Plutonium Disposition Final Environmental Impact Statement, DOE/EIS-0283, November 1999);
82 See Barnaby Report, vol 2, Appendix 8, p 422. 83 Vol 4, at ES-2. 84 Ibid, ES-6. 135
• assess the environmental effects of transportation and disposal of spent MOX fuel; and • assesses the possible environmental effects of accidents or sabotage or terrorist attack on the plutonium dioxide production facility and the US MOFFF plant.
7.79. Notwithstanding its length and its detail, the US Nuclear Regulatory Commission has not accepted the US MOFFF Environmental Report as being adequate. In June 2001 the NRC wrote to DCSW85 requesting additional information, including in respect of a number of matters on which Ireland has been requesting information from the United Kingdom. The NRC has requested a great deal more information. It has asked the operator to provide inter alia: • A “site-wide emergency management plan, including Emergency Preparedness Plans and/or appropriate plans that would cover a MOX fuel transportation accident”;86 • A general plan for decommissioning the MOFFF “in sufficient detail to support a description of the process and impact analysis in the Environmental Impact Statement”;87 • More information on alternative technologies, for example on plutonium polishing and high efficiency particulate air filters;88 and • More information on the impact of certain proposed actions on the environment (e.g. “The ER indicates that liquid and solid wastes will be transferred to the [DOE] for processing and management. The ER also provides general information regarding how DOE manages its waste streams, but provides no information on how MOX FFF wastes will be processed or managed. Although waste processing will not be part of the … operation, it will produce environmental impacts that need to be considered in the EIS”).89
7.80. The Sheate Report notes the extreme contrast between the environmental impact assessment process in relation to the US and UK MOX facilities, which serves to emphasise the inadequacy of the latter: “A comparison of the detail required for the EIS in the US is amply illustrated by the scoping summary report produced by the US Nuclear Regulatory Commission for the EIS (see Volume 2, Appendix 8.1). This requires considerably more detail than identified against either of the UK sets of review criteria above, but emphasises in contrast the remarkably ‘light touch’ taken by BNFL in their MOX application and ES and by Copeland Borough Council in not requiring further information along the lines identified in the review above. Many of the issues which were omitted or inadequate in the BNFL ES are seen as basic requirements for the EIS for the MOX FFF in the US. The outline for the EIS provided at the end of the scoping summary report as Attachment A emphasises the much more
85 Sheate Report, vol 2, Appendix 8, pp 351 et seq. (Appendix 8.2). 86 Ibid, General Comments, para 1 (p 353). 87 Ibid, Specific Comments, para 3 (p 353). 88 Ibid, Specific Comments, paras 5 and 6 (p 354). 89 Ibid, Specific Comments, para 8 (p 354). 136
comprehensive approach taken to all environmental effects of the proposed MOX plant compared to the Sellafield example.”90 (emphasis added)
D. CONCLUSIONS: THE UNITED KINGDOM HAS VIOLATED ARTICLE 206 OF UNCLOS
7.81. In summary, Ireland submits that the United Kingdom has violated Article 206 of UNCLOS by (1) carrying out an environmental impact assessment which was inadequate by the standards applicable in 1993; (2) authorising the MOX plant in 2001, on the basis of the 1993 Environmental Statement, without updating that statement to comply with current international standards relating to (a) the content of the environmental assessment report and (b) requirements relating to the protection of the marine environment of the Irish Sea. Ireland considers that the evidence contained in the Sheate Report makes it entirely clear that, viewed against a range of criteria applicable in 1993 and 2001, the Environmental Statement is not remotely capable of complying with Article 206, the requirements of which must be interpreted in the light of applicable international law and practice. As the Sheate Report concludes: the 1993 Environmental Statement is “quite inadequate, even for the standards prevalent at the time in the early 1990s, and especially given the nature of the proposal.”.91 In order to bring itself in compliance with the requirements of Article 206 UNCLOS the United Kingdom must look afresh at all the environmental consequences of the MOX plant, and cause to be prepared a new environmental statement which inter alia: • identifies and assess the effects of the additional discharges into the Irish Sea arising from the additional operation of the THORP plant; • assesses the state of the Irish Sea and determines the cumulative effects of the discharges from the MOX plant and the consequential additional discharges from the THORP plant on the Irish Sea; • assesses the effects of international transports through the Irish Sea of nuclear materials associated with the MOX plant; • assesses the possible environmental effects of accident or terrorist attack on the MOX plant or on international transports associated with the MOX plant; • sets out a scoping or justification for why the range of impacts studied was selected; • considers alternatives, including alternative sites, alternative technologies, and the no-action alternative; • makes us of adequate baseline data, and justifies choices made in dealing with data; • consider all other effects of the MOX plant, including indirect effects and cumulative; • fully considers the environmental effects of decommissioning the MOX plant.
90 Sheate Report, vol 2, Appendix 6, p 215 (para 6.5). 91 Ibid, p 201. 137
7.82. The violation of Article 206 has other consequences. Having failed to assess properly all the environmental consequences of the authorisation and operation of the MOX plant, the United Kingdom proceeded to authorise the MOX plant on an incomplete and inadequate base of information. It was unable to respond – properly or at all – to requests for information from Ireland, because it had not put itself in a position to know all the environmental consequences of its actions. And it was unable to adequately fulfil its duties of co-operation with Ireland, in particular by disabling itself from the possibility of taking into account the views expressed by Ireland. These procedural violations are addressed in Chapter 8. The procedural violations have substantive consequences.
7.83. In the absence of a proper environmental assessment, the United Kingdom authorised the MOX plant without having first put itself in a position to know what would be all the environmental consequences of the MOX plant. In those circumstances it was not in a position to properly co-operate with Ireland as required by UNCLOS (even if it had wanted to), because it had failed properly to make available to itself the information which such co-operation required it to make available to Ireland.
7.84. Further, without that information, the United Kingdom was not in a position to “take all measures necessary” to prevent and reduce pollution, or to ensure that the authorisation of the MOX plant would not cause pollution to Irish waters, or to minimize “to the fullest possible extent” the release of radioactive substances, as required by Part XII of UNCLOS.
7.85. The failure to cause to be prepared a proper environmental assessment of the MOX plant is of central importance in its own right. But it becomes even more important in giving rise to consequential violations of the obligations to co-operate and to prevent pollution. These aspects are addressed in Chapters 8 and 9 which follow. 138 139
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. The duty to take into account “the natural characteristics” of the sea is significant, and particularly relevant in the present case. An earlier draft of Article 15 of the Straddling Stocks Agreement had proposed to refer to the “geographical and ecological characteristics” of the sea. As one authoritative commentator has remarked, “[T]he expression retained by the 1995 Agreement is in fact broader since natural characteristics may include elements other than the geographical and ecological.”7
8.15. The relationship between the specific characteristics of various sea areas and the general principles set out in the UNCLOS was clearly explained by the chairman of the Straddling Stocks Conference in a statement that he made in 1993: “It is acknowledged that conservation and management arrangements should take into account specific regional differences and situations and that regional conservation and management measures should be based on globally agreed principles in order to ensure uniformity and consistency in the application of the basic framework for fisheries management established by the 1982 Convention on the Law of the Sea.”8
8.16. States bordering semi-enclosed seas, such as the Irish Sea, are expected to consider the particular characteristics of those seas when they are implementing their rights and duties under the UNCLOS and engaging in the management and conservation of those seas.
8.17. The characteristics of the Irish Sea and of the Sellafield site were described above.9 The particular characteristics of the Irish Sea that are relevant in the present context include: a. the separation of the waters of the Irish Sea from the main body of North Atlantic waters; b. siting of British nuclear facilities on the shores of the Irish Sea ; c. the piping into the Irish Sea of effluents from the British nuclear facilities at Sellafield; d. the patterns of water currents, including the Irish Sea “gyre”, which tend to concentrate radioactive deposits from the Sellafield effluents in “hotspots” in the centre of the Irish Sea;
6 UN Doc. A/CONF.164/37, 8 September 1995; Published at http://www.un.org/Depts/los/convention_agreements/texts/fish_stocks_agreement/A_CONF.164_37_Eng lish.pdf. 7 F. Orrego Vicuña, The Changing International Law of High Seas Fisheries (1999), p 195. 8 UN Doc. A/CONF.164/12, 21 July 1993, quoted in F. Orrego Vicuña, The Changing International Law of High Seas Fisheries (1999), p 202. 9 Chapters 1, 2. See also Hartnett, vol 2, Appendix 7. 143
e. the narrowness and proximity to Ireland’s main centres of population of maritime passages through which ships carrying nuclear materials to Sellafield via the Irish Sea must pass.
THE DUTY OF CO-OPERATION UNDER ARTICLE 123
8.18. The specific duties of co-operation under Article 123 upon States bordering a semi- enclosed sea that are of primary relevance in this case are the duties: (i) to co-operate with each other in the exercise of their rights and in the performance of their duties under UNCLOS; (ii) to endeavour, directly or through an appropriate regional organization, to coordinate the management and conservation of the living resources of the sea; (iii) to endeavour, directly or through an appropriate regional organization, to co-ordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment.
8.19. Plainly, what is required of bordering States in any specific case will depend upon the specific facts of that case. That point is addressed later in this chapter. There are, however, certain general legal obligations arising from UNCLOS Article 123.
THE JURIDICAL NATURE OF THE OBLIGATION UNDER ARTICLE 123
8.20. Article 123 expressly imposes upon UNCLOS States Parties certain immediately binding legal obligations. The first is the duty of coordination. It expressly obliges them (i) to endeavour to coordinate the management and conservation of living resources, and (ii) to endeavour to coordinate the implementation of rights and duties with respect to the protection and preservation of the marine environment. Article 123 may not impose on the coastal States an obligation to achieve coordination in every case by, for example, reaching agreement on measures or policies: but it does oblige them to try, in good faith, to achieve it.
8.21. On a plain reading of the text, this must mean that the implementation of management and conservation policies, and of rights and duties, must in every case proceed with an awareness of the actual (as opposed to the hypothetical) interests of other littoral States and in such a way as to pursue the goal of coordination. Unilateral actions taking no account of the interests or rights or policies of neighbouring States, and making no attempt to coordinate with them, are plainly incompatible with the duty in Article 123.
8.22. Article 123 also contains a broader obligation in relation to co-operation and co- ordination, couched in the language of moral, rather than legal, obligation. It stipulates that bordering States “should co-operate with each other in the exercise of their rights and in the performance of their duties under this Convention.”
8.23. This duty to co-operate is expressed in hortatory, rather than mandatory, language. Nonetheless, the fact that this obligation is not couched in the language of immediately binding legal duties does not mean that it is without binding legal effect. 144
8.24. There are three ways in which this broader obligation under Article 123 has legal effects: (i) as an element in the interpretation of other UNCLOS obligations; (ii) according to the principle of good faith; and (iii) in relation to the principle of the abuse of rights.
(i) Article 123 and the Interpretation of UNCLOS
8.25. First, Article 123 indicates the particular manner in which indisputably binding obligations in the UNCLOS, such as those imposed by UNCLOS Articles 192, 193, 194, 197, 206, 207, 211, 212, 213 and 217, are to be discharged in so far as they fall to be applied in the context of enclosed and semi-enclosed seas.
8.26. This is elementary law, and follows from the duty under Article 31 of the 1969 Vienna Convention on the Law of Treaties to interpret treaty provisions “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
8.27. For example, the interpretation of the obligations under UNCLOS Article 192 “to protect and preserve the marine environment,” and under Article 198 to “jointly develop and promote contingency plans for responding to pollution incidents in the marine environment” are themselves plainly binding obligations. The substantive action that is necessary in order to fulfil those obligations will vary from case to case. In relation to States bordering semi-enclosed seas, the question of the nature of the action that must be taken under Articles 192 and 197 is one that must be approached and answered in the light of Article 123. This in turn requires that regard be had to the nature of the activity giving rise to the obligation to co-operate, to the characteristics of the sea in question, and to the impact of the activity on that sea. States must, accordingly, co-ordinate inter alia their management and pollution policies and take into account the particular characteristics of the sea area in question, when taking steps to protect and preserve the marine environment and jointly developing and promoting contingency plans for responding to pollution incidents.
8.28. Those conclusions are applicable equally to the other UNCLOS Articles upon which Ireland relies in this case. The implementation of all of the duties imposed by the UNCLOS upon the United Kingdom must, in so far as their application in respect of the Irish Sea is concerned, proceed in the light of the duty to co-ordinate and the duty to co- operate under Article 123.
8.29. This conclusion follows from the interpretation in their context (that is, in the context set, in the case of semi-enclosed seas, by Article 123) of the other UNCLOS Articles. The same conclusion would be reached directly, by the straightforward and good faith interpretation of those Articles.
(ii) Article 123 and the Principle of Good Faith
8.30. Second, even as a hortatory provision of the UNCLOS, Article 123 cannot be entirely disregarded by States Parties. An outright, blanket refusal to co-operate or co- ordinate actions and plans would not be compatible with the implementation of the UNCLOS in good faith.
8.31. This would be the case even if (as is plainly not the case) Article 123 were regarded as no more than a declaration of policy. Long-established principles of 145 international law stipulate that States do not have an absolute and unlimited right to depart from declared policies. The point was explained clearly by Professor Cheng: “The protection of good faith extends equally to the confidence and reliance that can reasonably be placed not only in agreements but also in communications or other conclusive acts from another State. If State A has knowingly led State B to believe that it will pursue a certain policy, and State B acts upon this belief, as soon as State A decides to change its policy – although it is at perfect liberty to do so – it is under a duty to inform State B of this proposed change. … What the principle of good faith protects is the confidence that State B may reasonably place in State A.”10
8.32. The same principle is evident in Article 18 of the Vienna Convention on the Law of Treaties, which obliges a State that has signed but not ratified a treaty to refrain from acts which would defeat the object and purpose of the treaty until such time as it has made clear its intention not to become a party to the treaty. Announced policies cannot be disregarded at will. There is a legal duty to act consistently with them.
8.33. UNCLOS Article 123 is an integral part of the UNCLOS. It defines the nature of the relationship between States Parties in those parts of the world where the implementation of rights and duties under the Convention by one State is likely to have the greatest and most immediate impact upon the rights and interests of other States, simply because of the geographical nature of enclosed and semi-enclosed seas. Indeed, for States bordering such seas, it is Article 123 that defines the essential basis upon which the entire Convention regime will be applied to those States. In that sense, Article 123 is the crucial provision determining the “tone” or “nature” – the precise content – of the Convention for those States. Clearly, no State Party is free to disregard either its specific legal obligations under Article 123, or the broader effect of Article 123 upon the implementation of its other duties. It may perhaps abandon the policy spelled out in the broader obligation to co- operate under Article 123; but even then it may not do so without giving notice of its intention.
(iii) Article 123 and the Principle of the Abuse of Rights
8.34. Third, it will be noted that UNCLOS Article 300 stipulates that “States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.” The duty of good faith is attached specifically to “obligations” under the Convention. This provision is relevant in two ways.
8.35. First, it applies to Article 123 itself. It applies, by virtue of the plain terms of Article 300, to the legally binding obligations in Article 123 to co-ordinate. There is, however, no reason why Article 300 should be limited in its application to the sub-category of obligations that are immediately legally enforceable. The plain words of Article 300 encompass hortatory provisions, such as the broader aspects of Article 123; and as a matter of policy it is difficult to conceive of any reason for holding that States are not bound to act in good faith in conformity with such hortatory provisions. Accordingly, Article 300 also applies to the duty to co-operate under Article 123. This is, in essence, the same conclusion as is entailed by the customary law duty of good faith.
10 B. Cheng, General Principles of Law as applied by International Courts and Tribunals, (1987, 1994), p 137, citing the Portendic case, 42 BFSP 1377-1378, 30 BFSP 619 at 641. 146
8.36. Second, it is also clear that States Parties are constrained as a matter of law in the exercise of their “rights, jurisdiction and freedoms” under other UNCLOS Articles, and must not exercise them in a manner amounting to an abuse of right. That observation applies to Articles 192, 193, 194, 197, 206, 207, 211, and 213, upon which Ireland relies in this case. In that context, UNCLOS Article 123 is relevant to the determination of what would constitute an “abuse of right.”
8.37. The principle of the abuse of rights has a narrower and more objective nature than its slightly pejorative name suggests. Again, it is clearly stated by Professor Cheng: “Good faith in the exercise of rights … means that a State’s rights must be exercised in a manner compatible with its various obligations arising either from treaties or from the general law. It follows from this interdependence of rights and obligations that rights must be reasonably exercised. The reasonable and bona fide exercise of a right implies an exercise which is genuinely in pursuit of those interests which the right is destined to protect and which is not calculated to cause any unfair prejudice to the legitimate interests of another State, whether these interests be secured by treaty or by general international law.”11
8.38. The principle, often referred to in positive terms as the duty of good faith, has been applied on many occasions by international tribunals. For instance, it was applied in the context of the uses of the seas by neighbouring coastal States in the La Bretagne arbitration.12
CONCLUSION REGARDING ARTICLE 123
8.39. The foregoing discussion has, it is submitted, demonstrated that Article 123 is applicable in three distinct roles. First, it directly imposes upon Ireland and the United Kingdom alike immediate, legally-binding duties to endeavour to co-ordinate their management and conservation of living resources, and to endeavour to co-ordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment. Second, it obliges Ireland and the United Kingdom alike to hold to the policy of co-operating with each other in the exercise of their rights and in the performance of their duties under this Convention. Third, it defines a crucial part of the context within which the nature and scope of obligations imposed by other UNCLOS Articles must be interpreted. Those other Articles are considered next.
11 B. Cheng, General Principles of Law as applied by International Courts and Tribunals, (1987, 1994), pp 131-132. Cf., E. Zoller, La bonne foi en droit international public (1977); J. F. O’Connor, Good Faith in International Law (1991). 12 82 ILR 591 at 614 (1986). 147
B. THE GENERAL DUTY TO CO-OPERATE UNDER UNCLOS ARTICLE 197
8.40. The indispensability of the duty to co-operate is generally recognised. For example, the International Law Commission has stated that “the principle of co-operation between States is essential in designing and implementing effective policies to prevent or minimise the risk of causing significant transboundary harm. The requirement of co-operation of States extends to all phases of planning and of implementation.”13
8.41. The fulfilment of the duty to co-operate with neighbouring States is usually secured simply by following the practices of good neighbourliness (“voisinage”) and diplomatic courtesy. The duty does not, however, rest solely upon considerations of international comity. It has a specific legal content.
8.42. The general duty to co-operate in relation to the protection and preservation of the marine environment is set out in UNCLOS Article 197, which reads as follows: “Article 197 Co-operation on a global or regional basis States shall co-operate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features.”
8.43. As the Virginia Commentary notes, Articles 197-201 are “couched in the language of legal obligation, to be implemented in good faith.”14 As was noted above, in the circumstances of the present case Article 197 must be interpreted in the light of Article 123. It is accordingly necessary that the duty of co-operation be fulfilled having regard to the particular circumstances pertaining to the Irish Sea.
8.44. UNCLOS itself does not indicate precisely what form co-operation should take; but such indications may be inferred from the practice of States.
8.45. Indeed, State practice has itself generated a duty of co-operation under customary international law, which is applicable in this case in two roles: first, as a guide to the interpretation of the duty of co-operation imposed by UNCLOS Article 197; and second, as one of what UNCLOS Article 293(1) refers to as the “other rules of international law not incompatible with this Convention,” which the present Tribunal is directed to apply to the case before it.
8.46. The practical necessity for co-operation was recognised in Principle 24 of the 1972 Stockholm Declaration, which stated that: “Co-operation through multilateral and bilateral arrangements or other appropriate means is essential to effectively control, prevent, reduce and eliminate
13 Report of the International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), chp.V.E.2. Commentary on Article 4, paragraph 1. 14 Vol IV, ¶ 197.1. 148
adverse environmental effects resulting from activities conducted in all spheres, in such a way that due account is taken of the sovereignty and interests of all States.” 15
That necessity is itself sufficient to give rise to a legal duty. In this respect the obligation to co-operate is among the norms that arise from the direct and irresistible operation of the facts of international life.16 There is, however, no need to rely upon that doctrine, because the specific duty to co-operate is clearly established in State practice.
8.47. State practice reveals a number of distinct elements that together make up the international law duty of co-operation. A good example of the content of the duty is to be found in the International Convention on Maritime Search and Rescue, 1979 (the “SAR Convention”).17 “CHAPTER 3: CO-OPERATION 3.1 Co-operation between States 3.1.1 Parties shall co-ordinate their search and rescue organizations and should, whenever necessary, co-ordinate search and rescue operations with those of neighbouring States. 3.1.2 Unless otherwise agreed between the States concerned, a Party should authorize, subject to applicable national laws, rules and regulations, immediate entry into or over its territorial sea or territory of rescue units of other Parties solely for the purpose of searching for the position of maritime casualties and rescuing the survivors of such casualties. In such cases, search and rescue operations shall, as far as practicable, be co-ordinated by the appropriate rescue co-ordination centre of the Party which has authorized entry, or such other authority as has been designated by that Party. 3.1.3 Unless otherwise agreed between the States concerned, the authorities of a Party which wishes its rescue units to enter into or over the territorial sea or territory of another Party solely for the purpose of searching for the position of maritime casualties and rescuing the survivors of such casualties, shall transmit a request, giving full details of the projected mission and the need for it, to the rescue co-ordination centre of that other Party, or to such other authority as has been designated by that Party. 3.1.4 The competent authorities of Parties shall: 1. immediately acknowledge the receipt of such a request; and 2. as soon as possible indicate the conditions, if any, under which the projected mission may be undertaken. 3.1.5 Parties should enter into agreements with neighbouring States setting forth the conditions for entry of each other’s rescue units into or over their respective territorial sea or territory. These agreements should also provide for expediting entry of such units with the least possible formalities. 3.1.6 Each Party should authorize its rescue co-ordination centres:
15 UN Doc. A/Conf. 48/14; 11 ILM 1416 (1972). 16 See Ch. De Visscher, Problèmes de confins en droit international public (1969), p 148ff, and Les effectivités du droit international public (1967), passim. 17 1405 UNTS 97. 149
1. to request from other rescue co-ordination centres such assistance, including vessels, aircraft, personnel or equipment, as may be needed; 2. to grant any necessary permission for the entry of such vessels, aircraft, personnel or equipment into or over its territorial sea or territory; and 3. to make the necessary arrangements with the appropriate customs, immigration or other authorities with a view to expediting such entry. 3.1.7 Each Party should authorize its rescue co-ordination centres to provide, when requested, assistance to other rescue co-ordination centres, including assistance in the form of vessels, aircraft, personnel or equipment. 3.1.8 Parties should enter into search and rescue agreements with neighbouring States regarding the pooling of facilities, establishment of common procedures, conduct of joint training and exercises, regular checks of inter-State communication channels, liaison visits by rescue co-ordination centre personnel and the exchange of search and rescue information. 3.2 Co-ordination with aeronautical services 3.2.1 Parties shall ensure the closest practicable co-ordination between maritime and aeronautical services so as to provide for the most effective and efficient search and rescue services in and over their search and rescue regions. 3.2.2 Whenever practicable, each Party should establish joint rescue co-ordination centres and rescue sub-centres to serve both maritime and aeronautical purposes. 3.2.3 Whenever separate maritime and aeronautical rescue co-ordination centres or rescue sub-centres are established to serve the same area, the Party concerned shall ensure the closest practicable co-ordination between the centres or sub- centres. 3.2.4 Parties shall ensure as far as is possible the use of common procedures by rescue units established for maritime purposes and those established for aeronautical purposes.”
8.48. If it is asked what steps are necessary in order to discharge these duties under the SAR Convention, three distinct elements may be distinguished. First, there is an implicit duty to inform other parties concerned of the facilities and arrangements in place to assist with search and rescue missions. Second, there is a duty to react to that information, or to seek such information if it has not already been given, and to take it into account in planning. That may involve the clarification of uncertainties, exploration of the possibility of changes in the practices or facilities or roles of each State, and the like. That is, there is a duty to consult. Third, there is a duty, having obtained the information and consulted the other State, to try to arrange matters so that each State’s activities complement and do not conflict with those of other States. That is, there is a duty to co-ordinate.
8.49. The 1979 SAR Convention is a good example of the need for practical co- operation between States fully and in good faith being addressed in an international instrument that spells out in some detail how that co-operation is to be implemented. The provisions must, of course, be interpreted in good faith. As is the case in other contexts where co-operation between States is necessary, the purpose and utility of the SAR Convention would be subverted if States sought to co-operate to the minimum possible extent.
8.50. Perhaps the clearest indication of the content of the duty to co-operate is provided by the work of the International Law Commission on the Prevention of Transboundary 150
Harm from Hazardous Activities. In the Draft Articles on the subject adopted in 2001,18 the International Law Commission included the following provisions relating to “activities not prohibited by international law which involve a risk of causing significant transboundary harm through their physical consequences”: “Article 4. Cooperation States concerned shall cooperate in good faith and, as necessary, seek the assistance of one or more competent international organizations in preventing significant transboundary harm or at any event in minimizing the risk thereof. Article 7. Assessment of risk Any decision in respect of the authorization of an activity within the scope of the present articles shall, in particular, be based on an assessment of the possible transboundary harm caused by that activity, including any environmental impact assessment. Article 8. Notification and information 1. If the assessment referred to in article 7 indicates a risk of causing significant transboundary harm, the State of origin shall provide the State likely to be affected with timely notification of the risk and the assessment and shall transmit to it the available technical and all other relevant information on which the assessment is based. 2. The State of origin shall not take any decision on authorization of the activity pending the receipt, within a period not exceeding six months, of the response from the State likely to be affected. Article 9. Consultations on preventive measures 1. The States concerned shall enter into consultations, at the request of any of them, with a view to achieving acceptable solutions regarding measures to be adopted in order to prevent significant transboundary harm or at any event to minimize the risk thereof. The States concerned shall agree, at the commencement of such consultations, on a reasonable time-frame for the consultations. […] 3. If the consultations referred to in paragraph 1 fail to produce an agreed solution, the State of origin shall nevertheless take into account the interests of the State likely to be affected in case it decides to authorize the activity to be pursued, without prejudice to the rights of any State likely to be affected. Article 12. Exchange of information While the activity is being carried out, the States concerned shall exchange in a timely manner all available information concerning that activity relevant to preventing significant transboundary harm or at any event minimizing the risk thereof. Such an exchange of information shall continue until such time as the States concerned consider it appropriate even after the activity is terminated. Article 14. National security and industrial secrets Data and information vital to the national security of the State of origin or to the protection of industrial secrets or concerning intellectual property may be withheld, but the State of origin shall cooperate in good faith with the State likely
18 Vol 3(1), Annex 73. 151
to be affected in providing as much information as possible under the circumstances. Article 16. Emergency preparedness The State of origin shall develop contingency plans for responding to emergencies, in cooperation, where appropriate, with the State likely to be affected and competent international organizations.”19
In the Draft Articles, “risk of causing significant transboundary harm” is defined so as to include both risks taking the form of a high probability of causing significant transboundary harm and a low probability of causing disastrous transboundary harm.20 The Commentary21 added that “‘significant’ is something more than “detectable” but need not be at the level of “serious” or “substantial.”22
8.51. Again, the Draft Articles emphasise the duties to inform, to consult, and to co- operate. This is emphasised throughout the text. For example, the Commentary states that information that the State is obliged by Draft Article 8 to pass on to States likely to be affected includes “includes not only what might be called raw data, namely fact sheets, statistics, etc., but also the analysis of the information which was used by the State of origin itself to make the determination regarding the risk of transboundary harm. The reference to the available data includes also other data which might become available later after transmitting the data which was initially available to the States likely to be affected.” 23
8.52. Further, the Commentary on Draft Article 12 states that:- “Article 12 requires the State of origin and the likely affected States to exchange information regarding the activity after it has been undertaken. The phrase ‘concerning that activity’ after the words ‘all available information’, is intended to emphasize the link between the information and the activity and not any information. The duty of prevention based on the concept of due diligence is not a one-time effort but requires continuous effort. This means that due diligence is not terminated after granting authorization for the activity and undertaking the activity; it continues in respect of monitoring the implementation of the activity as long as the activity continues.
19 Report of the International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), chp.V.E.1. 20 Draft Article 2(a). 21 Vol 3(1), Annex 73. 22 Report of the International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), chp.V.E.2. Commentary on Article 2, paragraph 4. 23 Report of the International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), chp.V.E.2. Commentary on Article 8, paragraph 6. Reproduced in vol 3(1), Annex 73. 152
The information that is required to be exchanged, under article 12, is whatever would be useful, in the particular instance, for the purpose of prevention of risk of significant harm.”24
8.53. Similarly, the ILC, citing in support the decisions of the arbitral tribunal in the Lac Lanoux case25 and of the International Court of Justice in the Fisheries Jurisdiction and North Sea Continental Shelf cases,26 stressed the need to enter into consultations in good faith.27
8.54. The ILC Draft Articles are regarded by Ireland as reflecting the minimum requirements of existing obligations of co-operation under general international law, underpinning the particular requirements applicable under UNCLOS and in the European and Northeast Atlantic regions.
8.55. The duties to inform, to consult, and to co-ordinate, which together make up the duty to co-operate, are considered in more detail in the following paragraphs, in the context of the broad UNCLOS duty to protect and preserve the marine environment.
(1) THE DUTY TO INFORM
8.56. First, there is a duty on UNCLOS States Parties to inform potentially affected States of activities that are capable of having significant environmental consequences in the territory of the other State.
8.57. The wide scope of duties to inform was recognised by the International Law Commission, in the Commentary on Draft Article 8. There it was said, in relation to a provision calling on each State to notify other States that are likely to be affected by planned activities, that: “(2) The activities here include both those that are planned by the State itself and those planned by private entities. The requirement of notification is an indispensable part of any system designed to prevent transboundary harm or at any event to minimize risk thereof. (3) The obligation to notify other States of the risk of significant harm to which they are exposed is reflected in the Corfu Channel case, where the International Court of Justice characterised the duty to warn as based on “elementary considerations of humanity”. This principle is recognised in the context of the use of international watercourses and in that context is embodied in a number of international agreements, decisions of international courts and tribunals, declarations and resolutions adopted by intergovernmental organisations, conferences and meetings, and studies by intergovernmental and international non-governmental organisations.
24 Report of the International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), chp.V.E.2. Commentary on Article 12, paras 2, 3. 25 Lac Lanoux Arbitration (France v. Spain), UNRIAA, vol XII, p 281, vol 3(1), Annex 80. 26 ICJ Reports 1974, para 78, and ICJ Reports 1969, p 3, especially paragraphs 85 and 87, respectively. 27 Report of the International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), chp.V.E.2. Commentary on Article 9, paragraphs 1-8. 153
(4) In addition to the utilisation of international watercourses, the principle of notification has also been recognised in respect of other activities with transboundary effects. For example, article 3 of the Convention on Environmental Impact Assessment in a Transboundary Context and Articles 3 and 10 of the Convention on the Transboundary Effects of Industrial Accidents. Principle 19 of the Rio Declaration on Environment and Development speaks of timely notification: “States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect and shall consult with those States at an early stage and in good faith.” (5) The procedure for notification has been established by a number of OECD resolutions…. (6) Where assessment reveals the risk of causing serious transboundary harm … the State which plans to undertake such activity has the obligation to notify States which may be affected. The notification shall be accompanied by available technical information on which the assessment is based.”28
8.58. The duty to inform appears in, inter alia,29 a. the 1909 Convention Concerning Boundary Waters between the United States and Canada;30 b. the 1929 Convention between Norway and Sweden on Certain Questions Relating to the Law on Watercourses;31 c. the l931 General Convention Concerning the Hydraulic System Concluded between the Kingdom of Romania and the Kingdom of Yugoslavia;32 d. the 1932 Convention between Poland and the USSR Concerning Juridical Relations on the State Frontier;33 e. the Convention of 27 October 1960 between Austria, Switzerland, and the German Lander of Bavaria and Baden-Wurtemberg on the protection of Lake Constance against Pollution (Article 1);34 f. the 1974 Nordic Environmental Protection Convention (Articles 5, 7, 10);35
28 Report of the International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), chp.V.E.2. Commentary on Article 8. Reproduced in vol 3(1), Annex 73. 29 For further citations see P. Okowa, “Procedural Obligations in International Environmental Agreements”, 67 BYIL 274 at 289-300, 317-330 (1996). 30 Rüster and Simma, International Protection of the Environment –Treaties and Related Documents, (1977), vol X, p 5158. 31 Rüster and Simma, vol X, p 4942. 32 Rüster and Simma, vol IX, p 4435. 33 Rüster and Simma, vol IX, p 4454. 34 Agreement on the Protection of Lake Constance from Pollution”, in Burhenne (ed.), Beiträge zur Umweltgestaltung, Internationales Umweltrecht Multilaterale Verträge (Berlin, 1974), 960: 80. 154
g. the 1979 Geneva Convention on Long Range Transboundary Air Pollution (Articles 5 and 8(b) );36
8.59. This practice is by no means confined to bilateral and multilateral treaties. The duty to inform is set out or reflected in many other international instruments, including: a. UNGA Res. 2995 (XXVII) on Co-operation between States in the Field of the Environment;37 b. UNGA Res. 3281 (XXIX), the Charter of Economic Rights and Duties of States;38 c. the 1978 UNEP Council Document on Natural Resources Shared by Two or More States;39 d. the 1994 Convention on Nuclear Safety;40 e. the OECD Recommendations on Transfrontier Pollution, adopted on 14 November 1974,41 11 May 1976,42 17 May 1977,43 21 September 1978,44 and 8 July 1988;45 f. the 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context;46 g. the International Law Commission’s 2001 Draft Articles on Prevention of Transboundary Harm from Hazardous Activities (Article 4);47
8.60. The duty has also been recognised in the decisions of international tribunals. The clearest and most detailed examination of the duty appears in the arbitral award in the Lac Lanoux case.48 That case concerned the interpretation of a treaty provision (Article 11 of the relevant treaty) which stipulated that certain hydrological works on a river of which France and Spain were co-riparians had to be the subject of prior notification to the other State “so that, if they might threaten the rights of the riparian owner of the adjoining Sovereignty, the claim may be lodged in due time with the competent authorities, and thus the interests that may be involved on both sides will be safeguarded.”
8.61. The Arbitral Tribunal in the Lac Lanoux case set out its reasoning in relation to that provision as follows:
35 Burhenne (ed.), Beiträge zur Umweltgestaltung, Internationales Umweltrecht Multilaterale Verträge (Berlin, 1974), 974: 14. 36 18 ILM 1442 (1979). 37 UN GAOR, 27th Session, Supp No. 30, 42. 38 14 ILM 251 (1975). 39 17 ILM 1094 (1978). 40 IAEA INFCIRC/449; 33 ILM 1514 (1994). 41 14 ILM 242 (1975). 42 15 ILM 1218 (1976). 43 16 ILM 977 (1977). 44 17 ILM 530 (1978). 45 28 ILM 278 (1989). 46 13 ILM 802 (1991). 47 UN GAOR, 56th Session, Supp No. 10 (A/56/10). 48 24 ILR 101 (1957). Reproduced in vol 3(1), Annex 80. 155
“Article 11 […] imposes on the States in which it is proposed to erect works or to grant new concessions likely to change the course or the volume of a successive watercourse a double obligation. One is to give prior notice to the competent authorities of the frontier district; the other is to set up machinery for dealing with compensation claims and safeguards for all interests involved on either side. The first obligation does not call for much comment, since its sole object is to permit the carrying out of the second. In any event, the possibility of prejudicing the course or the volume of the water mentioned in Article 11 cannot in any case be left exclusively to the discretion of the State which proposes to execute those works or to grant new concessions; the assertion of the French Government that the projected works can cause no prejudice to the Spanish riparian owners is, despite what has been said in argument … not sufficient to relieve the Government from any of the obligations contained in Article 11. … A State which is liable to suffer repercussions from work undertaken by a neighbouring State is the sole judge of its interests; and if the neighbouring State has not taken the initiative, the other State cannot be denied the right to insist on notification of works or concessions which are the object of a scheme.49
8.62. As the passage makes plain, a State that is under a duty to co-operate cannot simply put the duty to one side by claiming that its proposed acts will have no harmful impact upon other States to whom the duty is owed. That point is of particular importance in the context of the present case; and it is addressed further below.50
8.63. The decision of the International Court of Justice in the Corfu Channel case also lends support to the view that there is a fundamental duty to inform potentially affected States in the vicinity of risks emanating from material or activities located within a State’s territory.51 In that case, the International Court ruled that Albania was under a legal duty to warn British warships of the danger that they faced in approaching Albanian territorial waters that had been mined. The Court based the duty of prior notification upon the provisions of Hague Convention No. VIII of 1907, and also upon “certain general and well recognised principles”, including “elementary considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime communication; and every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.”52
8.64. By the same reasoning, States may not allow, or plan for, the use of their waters in a manner that infringes the rights of neighbouring States. They have a duty to inform neighbouring States of the nature of the threatened infringement, so that the neighbouring States may decide what action, is necessary, should be taken in response.
8.65. Given the weight of practice on the point, it is not surprising that the obligation to inform is regarded as forming a part of customary international law. Thus, as long ago as 1987, the Restatement of the Law: Foreign Relations Law of the United States included a provision that read as follows:
49 24 ILR 101 at 138. 50 Paragraph 8.275 et seq; and see paragraphs 10.1-10.12. 51 ICJ Reports 1949, p 4 at p 22. 52 ICJ Reports 1949, p 4 at p 22. 156
“§ 601 State Obligations with Respect to Environment of Other States and the Common Environment (1) A State is obligated to take such measures as may be necessary, to the extent practicable under the circumstances, to ensure that activities within its jurisdiction or control (a) conform to generally accepted international rules and standards for the prevention, reduction, and control of injury to the environment of another State or of areas beyond the limits of national jurisdiction […]”
The Comment on the provision went on to stipulate that: “(e) […] Under Subsection 1(a) a state has an obligation to warn another state promptly of any situation that may cause significant pollution damage in the state. A state has also an obligation to consult with another state if a proposed activity within its jurisdiction or control poses a substantial risk of significant injury to the environment of the other state, but it need not permit such consultations to delay the proposed activity unduly.”
8.66. UNCLOS does not provide a definition of “significant harm”. Ireland submits that the question whether the possible pollution is “significant” must take into account three factors: the degree of possible harm that may be caused; the probability of that harm being caused; and the reversibility of the harm. Possible pollution is significant if there is a high probability of pollution arising, even if that pollution may cause relatively little harm. Possible pollution is also significant even if there is only a low probability of pollution, if that pollution would cause a great deal of harm. Both possibilities are relevant in the present case.
8.67. As far as the third element is concerned, where the harm would be easily or quickly reversed, it may be regarded as less significant than harm that is irreversible or reversible only in the long term. It is in all practical senses impossible to remove radioactive pollution from the sea and seabed. Nuclear material carried by ship, on the other hand, might be salvageable in certain conditions. In all cases, the half-life of the radioactive material is such that radioactive pollution is, in human terms, completely irreversible.
8.68. The content of the duty to inform has been summarised in the following terms: “In treaty regimes and in the works of codification bodies, it is frequently provided that the notification duty requires the State of origin to inform the State which might be affected of any activity on its territory (either planned or actual) which entails a risk of transboundary harm. It is also required to provide the potentially affected State with all the necessary information relating to the nature of the activity, the risks involved, as well as the injury may cause. This is to enable the potentially affected States to make its own evaluation of the situation. The notification is also intended to provide the parties with an opportunity for finding an amicable solution to the problems raised, taking into account the interests of both the State of origin and the affected States.”53
8.69. That summary of the duty needs to be considered in the context of the UNCLOS provisions. In particular, it must be considered in the light of the rights of coastal States secured by the UNCLOS. Coastal States have throughout their territorial seas and 200 mile
53 P. Okowa, “Procedural Obligations in International Environmental Agreements”, 67 BYIL 274 at 291-292 (1996). 157
EEZs sovereign rights for the purpose of conserving and managing natural resources, and jurisdiction with regard to the protection and preservation of the marine environment (UNCLOS Articles 56(1); 211), and also have particular competences concerning maritime casualties (UNCLOS Articles 22, 23, 221).
8.70. The territorial sea is a part of the territory of the State. As a matter of law, pollution of those waters should be treated as seriously as pollution of any other part of the territory of the State. As a matter of fact, pollution of the territorial sea is the pollution of a part of the critical coastal area where fishing, tourism, shipping and other interests tend in all States to be concentrated.
8.71. Further, the right of a coastal State to be informed of risks and hazards to its marine environment must be interpreted in the light of the legal recognition of the primary interest of the coastal State in the marine environment out to the limits of its 200-mile zone. The coastal State not only has exclusive rights over the resources of its 200-mile zone. Its rights are akin to property rights, but they are accompanied by a specific responsibility for the conservation of the living resources of the 200-mile zone: UNCLOS Article 61 obliges States to take measures designed to maintain or restore populations of harvested species.
8.72. These coastal States interest may be affected by activities occurring in the territory of another State, as well as activities actually within or in proximity to the concerned State’s 200-mile zone.
8.73. The interest, and the rights, of the coastal State in the preservation of its territorial sea and EEZ from pollution and from maritime casualties have been underlined by recent changes in the legal regime of liability for nuclear accidents. In 1997 the IAEA adopted two instruments modifying the area within which the coastal State has exclusive jurisdiction over legal actions concerning nuclear damage under the 1963 Vienna Convention on Civil Liability for Nuclear Damage. One was the 1997 Protocol to Amend the Vienna Convention,54 the other the 1997 Convention on Supplementary Compensation.55 Unlike the 1963 Vienna Convention, Article XI of which had limited the exclusive jurisdiction of the coastal State to incidents occurring within its territorial sea, the 1997 instruments extend that right to all cases “where a nuclear incident occurs within the exclusive economic zone of a Contracting Party or, if such a zone has not been established, in an area not exceeding the limits of an exclusive economic zone, were one to be established by that Party.”
8.74. Those two instruments follow the established approach in international law to responsibility for reacting to incidents offshore that may lead to marine pollution. The International Convention on Oil Pollution Preparedness, Response and Co-Operation, 1990, for instance, obliges ships to report pollution incidents to “the nearest coastal State.”56
54 Protocol to Amend the 1963 Vienna Convention on Civil Liability for Nuclear Damage; IAEA INFCIRC566.shtml; http://www.iaea.or.at/worldatom/Documents/Legal/protamend.shtml. See Article 12. 55 Convention on Supplementary Compensation for Nuclear Damage; IAEA Doc. INFCIRC/567; http://www.iaea.or.at/worldatom/Documents/Legal/supcomp.shtml. See Article XIII(2). 56 International Convention on Oil Pollution Preparedness, Response and Co-Operation, 1990, Article 4. 1891 UNTS 51; 30 ILM 733 (1991); 18 Law of the Sea Bulletin 37 (1991). 158
8.75. Similar steps have recently been taken in relation to the 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy. In February 2002, a draft protocol was adopted which contained a provision in exactly the same terms as the 1997 revision of the Vienna Convention just quoted.57 There has also been prepared another draft protocol, to amend the 1963 Supplementary Convention. That assimilated, for the purposes of that Convention, damage suffered in the territorial sea and “in or above the exclusive economic zone of a Contracting Party or on the continental shelf in connection with the exploitation or exploration of the natural resources of that exclusive economic zone or continental shelf.”58
(2) THE DUTY TO CONSULT
8.76. The second component of the duty to co-operate is the duty to consult. The duty to inform is an essentially “one way” obligation. It is discharged by the passing of information from one State to the other. The duty to consult, on the other hand, requires a “two way” process of the exchange and consideration of their respective views by the States concerned.
8.77. A leading textbook describes consultations as follows: “Consultations usually involve discussions specifically intended to impart or exchange information about the matter in question … While consultations must be undertaken in good faith, they do not give to any of the states involved a right to have its views accepted by the others or to stop them acting in whatever way they propose.”59
The text then quotes a definition of “the essence of consultation” drawn from an English case: “the communication of a genuine invitation, extended with a receptive mind, to give advice … If the invitation is once received, it matters not that it is not accepted and no advice is proffered.”60
8.78. It has been observed that “[a]lmost all the treaty instruments on environmental protection provide for the exchange of information on a regular basis.”61
8.79. Again, the decision in the Lac Lanoux case is directly in point. The Arbitral Tribunal there considered the content of the obligation upon States to seek, by preliminary negotiations, terms for an agreement over the use of a shared watercourse, in circumstances where there was no obligation actually to reach an agreement. The obligation was, in essence, an obligation of consultation, with a view to the negotiation of an agreement. The Tribunal said:
57 OECD Doc. NEA/LEG/CPPC(98)10/FINAL/REV1, 22 February 2002. Draft Protocol to amend the Convention on Third party Liability in the Field of Nuclear Energy of 29 July 1960…, paragraph M (f), amending Article 13 of the 1960 Convention. 58 OECD Doc. NEA/LEG/CPPC(2000)31/FINAL, 22 February 2002. Draft Protocol to amend the Convention of 31st January 1963 Supplementary to the Paris Convention of 29th July 1960 on Third party Liability in the Field of Nuclear Energy…, Article 2(a)(iii). 59 Sir R. Jennings and Sir A. Watts, Oppenheim’s International Law (9th ed. 1992), pp 1181-1182. 60 From Agricultural Board v. Aylesbury Mushrooms [1974] 1 WLR 190, 194-5. 61 P. Okowa, “Procedural Obligations in International Environmental Agreements”, 67 BYIL 274 at 300 (1996), where many instances of such treaty practice are cited. 159
“…[O]ne speaks, although often inaccurately, of the ‘obligation of negotiating an agreement’. In reality, the engagements thus undertaken by States take very diverse forms and have a scope which varies according to the manner in which they are defined and according to the procedures intended for their execution; but the reality of the obligations thus undertaken is incontestable and sanctions can be applied in the event, for example, of an unjustified breaking off of the discussions, abnormal delays, disregard of the agreed procedures, systematic refusals to take into consideration adverse proposals or interests, and, more generally, in cases of violation of the rules of good faith (Tacna-Arica Arbitration: Reports of International Arbitral Awards, vol. II, pp. 921 et seq.; Case of Railway Traffic between Lithuania and Poland: PCIJ., Series A/B, No. 42, pp. 108 et seq.).”62
8.80. As was noted above,63 the Restatement of the Law: Foreign Relations Law of the United States indicated that the duty to consult other States had become a part of customary international law.
8.81. Light is cast upon the content of the duty to consult by the award in the Lac Lanoux case. Having explained the legal force of obligations of this kind, the Lac Lanoux Tribunal went on to discuss in greater detail the content of the obligation of consultation as it arose under the treaty in question in that case. It said, speaking of the safeguarding of interests of co-riparians by means of that obligation: “The … question is to determine the method by which these interests can be safeguarded. If the method necessarily involves communications, it cannot be confined to purely formal requirements, such as taking note of complaints, protests or representations made by the downstream State. The Tribunal is of the opinion that, according to the rules of good faith, the upstream State is under the obligation to take into consideration the various interests involved, to seek to give them every satisfaction compatible with the pursuit of its own interests, and to show that in this regard it is genuinely concerned to reconcile the interests of the other riparian State with its own. […] […] A State which has conducted negotiations with understanding and good faith in accordance with Article 11 of the Additional Act is not relieved from giving a reasonable place to adverse interests in the solution it adopts simply because the conversations have been interrupted, even though owing to the intransigence of its partner. Conversely, in determining the manner in which a scheme has taken into consideration the interests involved, the way in which negotiations have developed, the total number of the interests which have been presented, the price which each Party was ready to pay to have those interests safeguarded, are all essential factors in establishing, with regard to the obligations set out in Article 11 of the Additional Act, the merits of that scheme.”64
8.82. The duty to consult plainly requires the active engagement of both States in the process of seeking to ensure that the interests of both States are accommodated as far as is possible in activities touching upon those interests, even where one of the States may have
62 24 ILR 101 at 128. Reproduced in vol 3(1), Annex 80. 63 Paragraph 8.65. 64 24 ILR 101 at 139, 141. Reproduced in vol 3(1), Annex 80; p 489 at pp 527, 529. 160 a right to engage in those interests unilaterally. The duty does not, on the other hand, require that both States should have agreed to a course of action before it can be lawfully undertaken. The duty to consult another State does not amount to a duty to obtain the prior consent of that other State.
8.83. This approach was reflected in the Commentary of the International Law Commission on Draft Article 9 on the Prevention of Transboundary Harm from Hazardous Activities . That Article, quoted above,65 sets out an obligation to enter into consultations with a view to achieving acceptable solutions regarding measures to be adopted in order to prevent significant transboundary harm or at any event to minimize the risk thereof, arising from activities undertaken by a State. The relevant section of the Commentary, which reflects Ireland’s understanding of the legal position, read as follows: “(2) There is a need to maintain a balance between two equally important considerations in this article. First, the article deals with activities that are not prohibited by international law and that, normally, are important to the economic development of the state of origin. Secondly, it would be unfair to other States to allow those activities to be conducted without consulting them and taking appropriate preventive measures. Therefore, the article does not provide a mere formality which the State of origin has to go through with no real intention of reaching a solution acceptable to the other States, nor does it provide a right of veto for the States that are likely to be affected. To maintain a balance, the article relies on the manner in which, and purpose for which, the parties enter into consultations. The parties must enter into consultations in good faith and must take into account each other’s legitimate interests. The parties should consult each other with a view to arriving at an acceptable solution regarding the measures to be adopted to prevent significant transboundary harm, or at any event to minimize the risk thereof.”66
(3) THE DUTY TO CO-ORDINATE
8.84. The duty to co-ordinate is explicitly set out in UNCLOS Article 123. It arises also from the provisions of UNCLOS Article 207. Paragraph (3) of that Article obliges States to “endeavour to harmonize their policies … at the appropriate regional level.” In the context of a semi-enclosed sea, the “appropriate regional level” is harmonization among the littoral States of that sea. That means, in this case, Ireland and the United Kingdom.
8.85. Furthermore, the duty to co-ordinate is an implicit element of the duty to co- operate in UNCLOS Article 197.
8.86. That the duty to co-ordinate should be a component of UNCLOS Article 197 is in part a matter of common sense. There is an obligation to inform another State of activities that will affect it, and to take account of the other State’s interests. The impact of the activity on the other State will depend in part upon factors in the other State, including the plans and proposals that the other State has for dealing with the matter. It cannot seriously be suggested that a State is obliged to listen to explanations of the interests of other States but not to their plans for dealing with the impact of the projected activity upon those plans
65 Paragraph 8.50. 66 Report of the International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), chp.V.E.2. Commentary on Article 9. Reproduced in vol 3(1), Annex 73. 161
(and vice versa). If it must take account of those plans and proposals, that must mean that it is obliged to take account of them not merely in an abstract sense, as factors to be weighed in deciding whether to prosecute the proposed activity but also in considering how to prosecute that activity, if it does go ahead. There must be a duty upon both States to co- ordinate their plans.
8.87. It is appropriate in this context to recall that activities concerning the oceans will not affect merely the two (or more) States immediately concerned. In due course, all States will be affected. Pollution of the sea is the pollution of a global resource. This is already recognised in relation to Sellafield and the pollution of the Irish and North Seas, as protests by Norway and the Nordic Council demonstrate.67
8.88. There is no authoritative statement of the content of the duty to co-ordinate in international law. Nonetheless, the term has a plain ordinary meaning, well understood in the context of legal relations. At least two core obligations are included within the duty.
8.89. First, before adopting unilateral measures or practices which might affect the exercise by the other State of its own right unilaterally to adopt measures or practices in relation to matters in which both States have interests, the State must inform the other State of the steps that it proposes to take. In this respect the duty is essentially the same as, and reinforces, the duties to inform and consult.
8.90. Second, States that are subject to a duty to co-ordinate must not adopt unilateral measures or practices whose effect would undermine measures or practices adopted by the other State. That is plainly implicit in any reading of the term “co-ordinate”.
8.91. The obligation not to undermine measures taken by another regulatory authority is increasingly commonly found in the Law of the Sea. It is found, for example, in the 2001 Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean,68 Article 19 of which reads (in part) as follows: “Article 19. COMPATIBILITY OF CONSERVATION AND MANAGEMENT MEASURES 1. The Contracting Parties recognise the need to ensure compatibility of conservation and management measures adopted for straddling fish stocks on the high seas and in areas under national jurisdiction. To this end, the Contracting Parties have a duty to cooperate for the purposes of achieving compatible measures in respect of such stocks of fisheries resources as occur in the Convention area and in areas under the jurisdiction of any Contracting Party. The appropriate Contracting Party and the Commission shall accordingly promote the compatibility of such measures. This compatibility shall be ensured in such a way which does not undermine measures established in accordance with articles 61 and 119 of the 1982 Convention. 2. For the purpose of paragraph 1, the coastal States and the Commission shall develop and agree on standards for reporting and exchanging data on fisheries for the stocks concerned as well as statistical data on the status of the stocks.”
67 See e.g. chapter 1, para 1.68. 68 http://www.fao.org/Legal/TREATIES/032t-e.htm; 41 ILM 257 (2002). 162
8.92. Similarly, Article 5(1)(e) of the Framework Agreement for the Conservation of Living Marine Resources on the High Seas of the Southeast Pacific (the “Galapagos Agreement”)69 lists among the “conservation principles” applicable under that Agreement the following principle concerning measures adopted to regulate high seas fisheries: “The measures adopted shall not be less strict than those established for the same species in the zones under national jurisdiction adjacent to the Agreement’s area of application, shall not undermine the effectiveness of the same, and shall be fully compatible with them in all cases.”
C. IMPLEMENTATION OF THE DUTIES TO INFORM, TO CONSULT AND TO CO-ORDINATE IN THE PRESENT CASE
8.93. Ireland considers that the duty of co-operation, as described above, may be discharged through bilateral or through multilateral mechanisms. What is, however, necessary in each case is that there should be (a) sufficient information passed to the interested State to enable it to assess for itself the implications of any proposed measures or actions for its own interests, and (b) a proper procedure in the State passing on the information to ensure that any representations made by the other State will be considered and evaluated, and in so far as possible accommodated, before a final decision is taken on the proposed measures or actions.
8.94. It is the submission of Ireland that the United Kingdom has failed properly to discharge the duty of co-operation that is imposed upon it by the UNCLOS. Ireland considers that: a. the United Kingdom has not made sufficient information available to Ireland to enable Ireland to make its own assessments of the implications and risks arising from the MOX plant; b. Ireland’s representations and interests have not been properly taken into account, and in some instances have not been taken into account at all.
8.95. Ireland acknowledges that there have, over the years, been continuing contacts between the Irish and British authorities in relation to the Sellafield plant and associated shipments. The problem is not that the United Kingdom is unwilling to participate in procedures that are appropriate vehicles for co-operation with Ireland and for the discharge of the United Kingdom’s other responsibilities under UNCLOS, or to attend meetings. The problem is that the procedures do not in practice lead to the degree of co-operation to which Ireland is entitled, and do not fulfil the obligations to co-operate that the United Kingdom has assumed under the UNCLOS and also under the OSPAR Convention and other legal instruments.
8.96. The United Kingdom’s obligation to co-operate with Ireland includes, as was explained above, a duty to notify, consult and co-operate with Ireland. Ireland is accordingly entitled to be notified by the United Kingdom of the essential details concerning the operation of the MOX plant and the international movements of radioactive materials associated with the operation of the plant, without Ireland having to request each
69 The text is published on the website of the Comisión Permanente del Pacífico Sur at http://www.cpps- int.org/jurgaltxteng.htm. 163 piece of that information. In fact, Ireland has been provided with very little information, and in certain respects (notably in relation to the shipments of nuclear materials to and from the Sellafield site) the evidence is that co-operation with Ireland has actually diminished over recent years – and not because of the current litigation.
8.97. In addition to the United Kingdom’s obligation on its own initiative to notify Ireland of the plans for the MOX plant, the United Kingdom has a further obligation to respond in a timely and substantive fashion to Ireland’s reasonable requests for further assistance and information on the proposed MOX plant and international movements of radioactive materials associated with its operation. The record shows that Ireland has repeatedly transmitted such requests for assistance and information over the past five years. In the majority of cases the United Kingdom has failed to respond at all, or has responded very late and with little or no information. That failure is evident from the documentary record.
THE HISTORY OF NON-COOPERATION
8.98. Ireland’s letter of 23 December 199970 provides a clear example. In that letter Ireland’s request concerned three matters. The first was the falsification of data relating to MOX fuel exported to Japan, which came to light in the autumn of 1999, and the consequent suspension by Japan of MOX imports from Sellafield. In that regard Ireland sought the United Kingdom’s confirmation that– “(1) no decision [on the MOX plant] will be taken on economic justification so long as the Government of Japan has not indicated its agreement to the utilization of MOX fuel, and (2) that the process of consultation will be extended to permit consideration of the economic viability of the proposed MOX plant in the absence of any (or any significant) Japanese contracts.”71
8.99. The United Kingdom’s response arrived on 9 March 2000.72 It stated that when a final decision regarding the full operation of the plant is taken it would set out the reasons in full, and would be sent to Ireland.
8.100. Ireland’s second request in the letter of 23 December 1999 related to the inadequacy of the 1993 Environmental Statement. In that letter Ireland “calls upon the United Kingdom to carry out a new environmental impact assessment procedure taking into account the requirements of the 1982 UNCLOS, the 1991 Espoo Convention, the 1992 OSPAR Convention, Directive 97/11/EC, and the 1998 Sintra Ministerial Declaration. The Irish Government also seeks confirmation that the operation of the proposed MOX plant will not be authorized before such a revised environmental impact assessment procedure has been carried out.”73
8.101. The United Kingdom’s letter of 9 March 2000 did not respond at all to this point. Nor has the United Kingdom responded to it since.
70 Vol 3(1), Annex 20, p 129. 71 Vol 3(1), Annex 20, p 129 at p 130. 72 Vol 3(1), Annex 22. 73 Vol 3(1), Annex 20, p 129 at p 133. 164
8.102. Ireland’s third request in its letter of 23 December 1999 concerned the impact of the discharges from the MOX plant into the marine environment, having regard to the obligation that the United Kingdom accepted in 1998 to reduce concentration of artificial radioactive substances in the Irish Sea to “close to zero” by 2020, as well as the precautionary principle. In this regard Ireland wrote that it– “seeks the views of the UK Government as to the basis upon which the proposed authorization of discharges from the MOX plant into the marine environment would “meet all…international standards and legal requirements”, as the Environment Agency claims. The Irish Government further seeks confirmation that no authorization will be granted or put into effect pending resolution of these matters.”74
8.103. The United Kingdom’s letter of 9 March 2000, purportedly in response to Ireland’s letter of 23 December 1999, did not address this aspect of Ireland’s request.
8.104. It is clear from this exchange that the United Kingdom has not responded to any of Ireland’s enquiries, and cannot be considered to have taken into account Ireland’s interests.
THE FAILURE TO PROVIDE INFORMATION
8.105. A second example of the United Kingdom’s failure to fulfil its obligations concerns Ireland’s request for information under Article 9 of the OSPAR Convention, resulting in the invocation by Ireland of the OSPAR dispute settlement procedure and the constitution of an arbitral tribunal to resolve the dispute.
8.106. As described in its Statement of Claim in that Case,75 Ireland requested information relating inter alia to the proposed start date for the operation of the MOX plant, the number of years over which the plant is to operate, the volume of plutonium and uranium oxides which are to be reprocessed into MOX pellets, and the number of international transports of spent nuclear fuel and of MOX fuel assemblies which will be entering the Irish Sea in close proximity to Ireland (as set out in the PA Report). Ireland reiterated that request on several occasions. Each time the request was met with silence or a refusal to give the information, without any reasons beyond a general and unparticularised claim to “commercial confidentiality.”76
8.107. Ireland has also been obliged to remind the United Kingdom about requests for information which have been made but not responded to. For example, in the letter of 30 July 1999 Ireland sought a full copy of the PA Report.77 Some five months later no response had been received from the United Kingdom. A further request was made by letter of 18 November 1999.78. A response finally came on 17 December 1999, refusing to provide the information. The reasoning in that response was limited to a statement that “[d]isclosure of this information could cause BNFL unacceptable commercial harm.”79 On
74 Vol 3(1), Annex 20, p 129 at pp 133-134. 75 Vol 3(1), Annex 72, p 331. 76 Vol 3(1), Annex 72 at pp 336 et seq. 77 Vol 3(1), Annex 16. 78 Vol 3(1), Annex 18. 79 Vol 3(1), Annex 19. 165
21 May 2001 the United Kingdom Environment Minister responded to a further request80: “I am still considering this but I hope to be able to provide you with a substantive reply shortly”.81 No such reply was forthcoming until after Ireland had commenced arbitration proceedings; and when it did arrive it provided a less than complete set of reasons for the refusal to give the information.82 Once again, the exchange of letters demonstrates the reluctance of the United Kingdom to engage with Ireland, amounting in Ireland’s view to a failure to co-operate.
NON-COOPERATION ON MOX START-UP
8.108. A third example of non-cooperation concerns the United Kingdom’s failure to accede to Ireland’s request that the United Kingdom not authorise the MOX plant pending the outcome of the OSPAR arbitration proceedings. It will be recalled that one purpose of those proceedings is to obtain basic information which will allow Ireland to assess whether the environmental consequences of the operation of the MOX plant have been properly considered in accordance with the United Kingdom’s obligations under UNCLOS. Here, Ireland’s request was made in its Statement of Claim of 15 June 2001 and the covering letter.83 No response was received. Ireland sent a reminder on 27 August 2001.84 On 13 September 2001 the United Kingdom responded, declining to accede to Ireland’s request.85
8.109. The United Kingdom’s failure to fulfil its duty of co-operate with Ireland is pervasive. It reaches across all aspects of the State-to-State relationship in respect of the MOX plant and associated activities. For the purposes of the present case, however, it may be convenient to summarise the particular failings under three broad headings: (a) failures arising from breach of the UNCLOS obligations relating to environmental impact assessments (b) failures arising from breach of the UNCLOS obligations relating to the substantive protection and preservation of the marine environment; (c) failures arising from breach of the UNCLOS obligations relating to the shipments of nuclear materials associated with the MOX plant.
Each will be considered in turn.
Non-cooperation over Environmental Impact Assessments
8.110. Ireland submits that the failings of the United Kingdom in relation to the obligation to prepare an environmental impact assessment, detailed in chapter 7, and also in relation to the obligation to protect and preserve the environment, detailed in chapter 9, have two aspects. They are, as is explained in chapters 7 and 9, violations of the United Kingdom’s specific obligations under the UNCLOS to conduct a proper environmental impact assessment and to prevent the pollution of the sea. Where, as here, such violations are
80 Vol 3(1), Annex 25. 81 Vol 3(1), Annex 26. 82 Vol 3(1), Annex 31. 83 Vol 3(1), Annex 72. 84 Vol 3(1), Annex 30. 85 Vol 3(1), Annex 32. 166 committed by a co-riparian State on a semi-enclosed sea, and in the face of attempts by another co-riparian to engage in a process of consultation and co-operation that will avert those substantive violations of the UNCLOS obligations, the violations amount in addition to a breach of the duty to co-operate imposed by UNCLOS Article 123 and the other UNCLOS provisions described above. The analysis set out in chapters 7 and 986 will not be repeated here; but the main points relevant to the duty to co-operate will be summarised.
8.111. Non-cooperation over environmental impact assessments will be dealt with first. First, the inadequacy of the environmental assessment of the MOX plant and related activities is in itself a failure on the part of the United Kingdom to fulfil its duties to co- operate with Ireland.
8.112. The circumstances surrounding the production of the United Kingdom’s assessment of the environmental impact of the MOX plant and related activities have been described above.87 Ireland has repeatedly made representations to the United Kingdom, both in the form of representations that no adequate environmental assessment has been or is being carried out and in the form of responses to such public consultations as have been held by the United Kingdom on the matter.
8.113. The record shows that Ireland has repeatedly transmitted requests for assistance, co-operation and information in relation to the environmental impact assessment over the past seven years. In the great majority of cases the United Kingdom has simply failed to respond at all, or has responded very late. When the United Kingdom has responded, no substantive material or information has been provided. Indeed, the record shows compellingly that on no occasion has the United Kingdom responded substantively to any request put by Ireland.
8.114. The proposed MOX plant was the subject of an environmental impact assessment procedure in 1993. In 1994 Ireland communicated to the United Kingdom its views as to the inadequacies of the Environmental Statement, summarising its position as follows: “the Environmental Statement does not provide sufficient and adequate information to enable the effects on the environment of the MOX plant to be assessed and that it does not comply with the relevant requirements of the EC Directive on Environmental Impact Assessment [Directive 85/337/EEC]”88
8.115. In that submission Ireland set out its various concerns. It noted in particular the complete failure to assess the consequences of transport accidents or of accidents to the proposed MOX plant, or the impact of exposures of members of the public, either near the site or in the nearest Member State, Ireland. It noted also the failure to provide any information about the relationship between the plant and the marine environment of the Irish Sea; the failure to consider the effect of further radioactive discharges on the ecology of the marine environment and the failure to provide complete information on the nature and quantities of the effluents and wastes to be generated by the MOX plant, or the
86 See also the account in Chapters 1and 4. 87 Chapter 4, paragraph 4.7 et seq. 88 Submission to Copeland Borough Council on Proposed Sellafield Mixed Oxide (MOX) Plant, 1994, page 10; vol 3(1),Annex 8, p 89 at p 94. 167 methods of processing them. These concerns were reiterated in Ireland’s submissions of 4 April 199789 and 16 March 1998.90
8.116. Subsequently, in its letter of 30 July 1999 Ireland again set out its concerns about the MOX plant, associated transports of radioactive materials and the impact of these activities on the marine environment of the Irish Sea.91
8.117. These concerns were taken up again, and in further detail, in Ireland’s letter of 23 December 1999 to the UK Secretary of State for the Department of the Environment, Transport and the Regions.92 By this time more than five years had passed since the Environmental Statement had been published, and no supplement had been prepared to update it. Ireland wrote to the United Kingdom reiterating its earlier concerns, (in particular in relation to the inadequate assessment of impact of discharges into the marine environment) and setting forth its view that the environmental assessment of the plant was further deficient by reason of the fact that it failed to take any account of the material developments in English, EC and international law which had occurred since 1993 for the protection of the marine environment of the Irish Sea.
8.118. The letter of 23 December 1999 expressly identified further international legal obligations which had to be taken into account in authorising the MOX plant and international movements of radioactive materials, including: • The obligation to protect and preserve the marine environment and to prevent pollution of the marine environment: UNCLOS Arts. 192 to 194; • The obligation to take all possible steps to prevent and eliminate pollution from land based sources in accordance with Annex 1 of the 1992 OSPAR Convention, making use inter alia of “best available techniques” and “best environmental practice”: see UNCLOS Art. 207, and 1992 OSPAR Convention, Art 3; • The obligation to reduce concentrations in the environment to “close to zero” for artificial radioactive substances, by the year 2020; see the 1998 Sintra Ministerial Statement; • The obligation to ensure that national authorities make available information on activities or measures adversely affecting or likely to affect the state of the maritime area: see 1992 OSPAR Convention, Art 9(1); and • The obligation to prepare an environmental impact assessment prior to a decision to authorise a proposed activity: see UNCLOS Art 206.
8.119. The United Kingdom did not respond at all to the first letter, and merely acknowledged receipt (ten weeks later) of the second.93
8.120. In its letter of 23 December 1999 Ireland had made a number of requests to the United Kingdom. One of them related to the inadequacy of the 1993 Environmental Statement. Here, Ireland
89 Vol 3(1), Annex 9. 90 Vol 3(1), Annex 11. 91 Vol 3(1), Annex 16. 92 Vol 3(1), Annex 20. 93 Vol 3(1), Annex 22. 168
“calls upon the United Kingdom to carry out a new environmental impact assessment procedure taking into account the requirements of the 1982 UNCLOS, the 1991 Espoo Convention, the 1992 OSPAR Convention, Directive 97/11/EC, and the 1998 Sintra Ministerial Declaration. The Irish Government also seeks confirmation that the operation of the proposed MOX plant will not be authorized before such a revised environmental impact assessment procedure has been carried out.”94
8.121. The United Kingdom’s letter of 9 March 200095 did not respond to this point at all. The United Kingdom has not responded to it since.
8.122. Ireland’s third request in its letter of 23 December 1999 concerned the impact of the discharges from the MOX plant into the marine environment, having regard to the obligation which the United Kingdom accepted in 1998 to reduce concentration of artificial radioactive substances in the Irish Sea to “close to zero” by 2020, as well as the precautionary principle. In this regard Ireland “seeks the views of the UK Government as to the basis upon which the proposed authorization of discharges from the MOX plant into the marine environment would “meet all…international standards and legal requirements”, as the Environment Agency claims. The Irish Government further seeks confirmation that no authorization will be granted or put into effect pending resolution of these matters.”96
8.123. The United Kingdom’s letter of 9 March 2000, purportedly in response, did not address Ireland’s request on this point. On the contrary, it makes it clear that the United Kingdom had not responded to any of Ireland’s enquiries, and could not be considered to have taken into account Ireland’s interests. The 9 March 2000 letter from the UK Minister for the Environment apologised for the delay in responding and stated: “Whilst I am, of course, grateful to you for your further views and comments, I am sure that you understand why I cannot address these points in detail while we are still in the process of coming to a final decision on the full operation of the plant. I am also sure that you will appreciate that the implications of the data falsification incident at the Sellafield MOX Demonstration Facility will have some bearing on our decisions. Whatever our final decision, we do plan to publish a decision document which will explain our reasons in full. I will ensure that you are sent a copy immediately it is published.” 97
8.124. The United Kingdom did not respond further to Ireland’s concerns. The decision document on the MOX plant and international movements was finally published on 3 October 2001.98 It made no mention whatsoever of the concerns raised by Ireland in relation to the 1982 Convention.
94 Vol 3(1), Annex 20, p 129 at p 133. 95 Vol 3(1), Annex 22. 96 Vol 3(1), Annex 20, p 129 at p 134. 97 Vol 3(1), Annex 22. 98 Vol 3(2), Annex 92. 169
8.125. Despite all of these representations, the United Kingdom has not yet produced a credible environmental impact assessment relating to the MOX plant and associated activities. That constitutes a breach of the United Kingdom’s obligations under UNCLOS Article 206, as was explained above.
8.126. That same failure itself also amounts to a breach of the United Kingdom’s obligations to co-operate with Ireland in order to protect the marine environment, in pursuance of UNCLOS Articles 123 and 192-194, 197, 206, 207, 211, 212, 213, 217 and 293. The duty to co-operate, as has been explained, obliges the United Kingdom to inform Ireland of the nature and extent of the threat to the Irish Sea resulting from the commissioning of the MOX plant and associated activities. The failure to provide full information plainly violates the duty to co-operate with Ireland. And the failure of the United Kingdom to inform itself of the true extent of the environmental risks prevents the United Kingdom from discharging properly its part of the responsibility that it shares with Ireland for co-operating in order to protect and preserve the marine environment of the Irish Sea.
Non-cooperation over Protection and Preservation of the Marine Environment
8.127. The breaches by the United Kingdom of its duties to prevent and reduce pollution of the Irish Sea are explained in detail in chapter 9. Those details will not be rehearsed here. Like the failings regarding the environmental impact assessment, they amount ipso facto to a breach of the United Kingdom’s obligation to co-operate with Ireland, its co- riparian on that sea.
8.128. Ireland and the United Kingdom, as co-riparians of the semi-enclosed Irish Sea, share responsibility for safeguarding its marine environment. The period of severe pollution of the Irish Sea by emissions from the Windscale / Sellafield plants may have drawn to a close; and personnel changes may have removed from the Sellafield those responsible for the more egregious violations of safe operating procedures. The fact remains that the Sellafield plant is constantly adding to the pollution of the Irish Sea and that the commissioning of the MOX plant will prolong that pollution, including that from the THORP plant.
8.129. In addition, the presence of nuclear material on the Sellafield site, which is extended in time and in volume as a result of the commissioning of the MOX plant, presents a further risk of non-operational pollution as a result of accident or sabotage. All this takes place at a time when the United Kingdom has chosen publicly to commit itself to a reduction of pollution from the Sellafield plant to levels “close to zero” by the year 2020 and to reconsider future reprocessing contracts.
8.130. As is explained in chapters 7 and 9, the United Kingdom has failed to conduct a proper appraisal of the environmental risk consequent upon the commissioning of the MOX plant; it has failed to apply the precautionary principle, and its present commitment to reduce emissions to “close to zero”, in developing the Sellafield site; and it has failed to adopt the best available technology and make use of best environmental practice to reduce pollution. Ireland has made these points to the United Kingdom. Its communications have not succeeded in eliciting any substantive responses from the United Kingdom, nor even in enticing the United Kingdom into a meaningful dialogue on the matter.
8.131. In all these respects the United Kingdom has not only failed in its substantive obligations to protect the environment of the Irish Sea, it has failed also in its duty under 170
UNCLOS to co-operate with Ireland, as the co-riparian on the Irish Sea with whom the United Kingdom shares the responsibility for protecting and preserving the marine environment.
Non-cooperation in Bilateral Dealings
8.132. A similar pattern is revealed by the workings of the UK-Ireland Contact Group on Radioactivity Matters (the “Contact Group”).99 Once again, Ireland wishes to emphasise that it acknowledges and appreciates that valuable contacts and exchanges of information have occurred through the Contact Group. Ireland’s complaint is that, despite the contacts between Irish and British officials, key information which the Irish Government needs in order to discharge its responsibilities to the population of Ireland and in respect of Irish waters, and in order to determine the considered Irish position concerning developments at the Sellafield site that impact upon the Irish Sea, are being withheld from it. The developments that are critical in the present case are the building and operation of the MOX plant, and the additional and prolonged activity elsewhere on the Sellafield site that is implied by the MOX development. Ireland considers that it is entitled to that information, and that its withholding is a breach of the United Kingdom’s duty to co- operate.
8.133. The minutes of the Contact Group evidence a number of examples. First, there is the question of the THORP throughput figures. Those statistics are important because they enable Ireland to evaluate matters such as the ability of BNFL to meet NII (the British Nuclear Installations Inspectorate) targets regarding the vitrification of high level waste, the implications of future reprocessing contracts, and changes in the nature and amount of discharges over time. That, in turn, is important in order to enable Ireland to determine the precise nature and degree of the risk presented by the operations at Sellafield, now entering a new phase with the commissioning of the MOX plant.
8.134. At a Contact Group meeting on 11 December 1998, a United Kingdom representative undertook to seek 1998 THORP throughput figures from the British Department of Trade and Industry (Minute 2.4). At the meeting on 11 June 1999 it was stated that “the 1998 throughput figures for Thorp are not yet ready. They are expected to be ready soon and will be sent through to the RPII [i.e., the Radiological Protection Institute of Ireland]” (Minute 1.2). On 30 November 1999, it was said that “BNFL do not publish annual throughput figures for THORP as this was confidential information” (Minute 1.3). The information was, accordingly, never delivered to Ireland.
8.135. The ultimate withholding of the information that the United Kingdom had undertaken to seek from BNFL for transmission to Ireland is made more difficult to understand by the fact that BNFL used to publish information on the throughput at THORP. For example, a BNFL Press Release dated 30 August 1996 reported that “[a]ll throughput targets have been either achieved or exceeded and over 200 tonnes of fuel has been sheared and dissolved during the year. The plant is targeted to reprocess over 400 tonnes in its third year of operation, rising to an annual throughput of 900 tonnes by the fifth year.” 100
99 The Minutes of the Contact Group are set out in the Confidential Annex. 100 http://www.bnfl.com/website.nsf/. The Press Release appears under the headings “1996’, and then “30th August’. Site last visited on 20 July 2002. 171
8.136. Moreover, the information denied to Ireland appears to have been published on the internet in January 1999. A WISE news communiqué dated 22 January 1999 recorded that BNFL had stated that “throughput of THORP in financial year 1998/99, which runs to end March 1999, would be 900 tonnes of spent fuel, to make up for former lower-than- planned production rates. By December 15, throughput of THORP in 1998/99 was 400 tons.”101.
8.137. There is also other information that has been sought through the Contact Group that has not been provided. For example, the probability risk assessments for the Magnox reactors at Sellafield;102 the United Kingdom’s plans for the growing plutonium stockpile at Sellafield and the lack of transparency in relation to plans for the return of overseas waste.103
8.138. The United Kingdom increasingly resorts to the plea that all available information is available in published documents or on the web-site. That was, for example, the position taken at the Contact Group meeting on 17 November 2000 (Minute 1.3), after the United Kingdom had undertaken at the 30 November 1999 Contact Group meeting to forward to Ireland details of the performance of the Thorp (Minute 1.3) Of necessity, Ireland has to obtain data wherever it can, from the United Kingdom and elsewhere. But it is not desirable that it should have to rely upon information published on, for example, unofficial websites, where the accuracy and provenance of the information is difficult or impossible to verify.
8.139. Ireland has had occasion to remark in the Contact Group upon the desirability of obtaining information from official sources, rather than learning of it from the news media.104 It has recently had to restate that point in the context of these proceedings.105 Ireland recognises the sensitivity of information concerning all aspects of the Sellafield site. It recognises that, as a matter of policy, limited and partial information is disclosed to the worldwide general public. It considers, however, that in relation to those matters, described above, in which Ireland has an immediate interest and clear legal responsibilities, it is entitled to fuller disclosure on a government-to-government basis.
8.140. The withholding of information necessary for Ireland to develop its own appraisal of the risk from the Sellafield site and related shipments, and its responses to that risk, is a pattern that runs right through Ireland’s contacts with the United Kingdom.
8.141. For example, on 31 March 1998 Mr Joe Jacob, then Minister of State at the Irish Department of Public Enterprise, wrote to Mr John Battle, then British Minister of State for Science, Energy and Industry. The letter concerned the storage of high level waste at Sellafield. That waste comes in part from the THORP plant; and the commissioning of the MOX plant will, by extending the operational life of the THORP plant, extend the quantity and duration of the production of wastes at Sellafield. Writing of the High Level Waste (HLW) storage facilities at Sellafield, Minister Jacob said “I note the Health and Safety Executive (HSE) consider that the HLW storage arrangements are acceptably safe and that there is adequate provision to deal effectively and safely with all likely incidents and failures. I find it difficult to be convinced of this position without the release of
101 http://www.antenna.nl/wise/505/4971.html. Site last visited 20 July 2002. 102 Confidential Annex: Contact Group meeting 27 January 1998, Minute 11. 103 Confidential Annex: Contact Group meeting 17 November 2000, Minute 6.3. 104 Confidential Annex: Contact Group meeting 30 November 1999, Minute 6.2. 105 See the letter of the Agent of Ireland to the Agent of the United Kingdom, 15 July 2001. 172 information of a detailed technical nature including the contents of probability risk assessments.” 106
8.142. The reply dated 19 May 1998107 simply referred back to an earlier letter, dated 1 December 1997,108 in which Mr Battle stated that the HSE “is satisfied that the arrangements for HLW storage at Sellafield are acceptably safe”, and enclosed copies of a number of published reports on the matter.
8.143. Mr Jacob responded on 1 July 1998, noting that “[t]he ability of the Radiological Protection Institute of Ireland (RPII) to make its own judgement about the degree of risk associated with the HLW tanks has been limited by the non-availability of the Probability Risk Assessment (PRA). Access to this information has been requested a number of times at various levels of UK/Ireland contacts and has been consistently refused on grounds of commercial confidentiality.” He added that “the RPII have written to BNFL requesting that they reconsider their refusal to make this information available. The Institute have also indicated that they would be open to accepting any suggestions by BNFL to ensure that the commercial confidentiality of this material would not be compromised.”109
8.144. A visit to Sellafield by RPII representatives was arranged110; but, while methodologies used in making regulatory decisions were discussed, the PRA was not released. No copy of the PRA (now known as the Continued Operation Safety Report (COSR) was provided, but the COSR was eventually made available for reading by Irish officials in February 2000. Ireland is grateful for that facility. The COSR provided detailed information on operational failures and natural disasters affecting the HASTs specifically, although not on the threat from terrorism.
8.145. A further example concerns the HSE reports on safety at Sellafield. On 17 February 2000, the Rt Hon. Helen Liddell, British Minister of State for Energy and Competitiveness in Europe, wrote to Minister Jacob informing him that on the following day she would announce to the House of Commons that three HSE reports concerning Sellafield would be published on the following day.111 Those reports related to the falsification of data in the MOX Demonstration Facility (which led to the refusal of Japan to accept delivery of the pellets to which the data related), the storage of high level waste at Sellafield, and the supervision of operations at the BNFL site.
8.146. The details of those reports have been summarized in chapter 2.112 They disclosed an alarming series of safety lapses. Irish Minister Jacob wrote at the time to the British Minister for the Environment, “there is an onus on the UK Government to demonstrate to my Government that your regulatory systems are adequate to deal with the shortcomings and that everything possible is being done to minimise the risk to Ireland. I should add that I find it disquieting that it has taken so long to highlight these safety issues given the length of time these facilities have operated.”113
106 Vol 3(1), Annex 12. 107 Vol 3(1), Annex 13. 108 Vol 3(1), Annex 10. 109 Vol 3(1), Annex 14. 110 Vol 3(1), See the letter from Mr Battle to Mr Jacob, 21 July 1998: Annex 15. 111 Vol 3(1), Annex 21. 112 See paragraphs 2.70 et seq. 113 See Confidential Annex. 173
Non-cooperation in the Context of the Present Legal Proceedings
8.147. There is another, specific aspect of co-operation that must be considered. Ireland’s realisation that it would have to resort to litigation to obtain information to which it believes it is entitled has been known to the United Kingdom since at least June 2000. At the meeting of the UK-Ireland Contact Group held on 2 June 2000, Ireland pointed out that it might bring the question of the withholding of MOX information before the OSPAR Commission. As was explained above, that information was sought in order to enable Ireland to make a fully reasoned case in respect of the authorization of the MOX plant. The full history of the attempts to elicit this basic information from the United Kingdom is set out in chapter 4.
8.148. The issue remaining unresolved, OSPAR proceedings were initiated on 15 June 2001. On 27 August 2001 Ireland requested that the United Kingdom confirm that it would not authorise the operation of the MOX plant pending the conclusion of the OSPAR proceedings. By a letter of 5 September 2001, the United Kingdom refused to supply the information because “it would cause unreasonable damage … to the economic case for the Sellafield MOX plant itself.”114 By a letter of 13 September 2001, the United Kingdom refused to give an undertaking not to authorise the plant pending the conclusion of the OSPAR proceedings.115 While it is not a matter for this Tribunal, it is relevant to the background of the question of co-operation under the UNCLOS to note that the information sought might disclose that the “justification” for the MOX plant fails to meet the criteria which determine, as a matter of EU law, the right of the United Kingdom to establish such plants.
8.149. On 3 October 2001 the United Kingdom decided that the MOX plant is “economically justified”,116 thus opening the way to the commissioning and operation of the plant.
8.150. On 5 October 2001, at a meeting in London, Ireland notified the United Kingdom that following the decision of 3 October, a dispute existed concerning the United Kingdom’s duties under the UNCLOS, and that Ireland reserved its right to institute UNCLOS proceedings without further notice. Ireland indicated that it was available to exchange views on the matter with the United Kingdom.
8.151. On 25 October 2001, given that the United Kingdom had indicated on the previous day that it was unwilling to suspend the operation of the MOX plant pending resolution of the dispute, and Ireland having learned that the MOX plant could be operational as early as 23 November 2001, Ireland instituted proceedings under the UNCLOS.117 On the same day it transmitted to the United Kingdom a request for provisional measures.
8.152. On 30 October 2001, Ireland wrote to the British Department for Environment, Food and Rural Affairs (DEFRA) enquiring as to when the MOX plant was likely to be authorised and operational.118 No reply having been received, Ireland wrote again on 6 November.119 No reply having been received, Ireland submitted its Request for Provisional
114 Vol 3(1), Annex 31. 115 Vol 3(1), Annex 32. 116 See the Decision of 3 October 2001: vol 3(2), Annex 92. 117 Vol 3(1), Annex 1. 118 Vol 3(1), Annex 39. 119 Vol 3(1), Annex 40. 174
Measures to the ITLOS on 9 November. DEFRA eventually replied to Ireland’s letters of 25th and 30th October a week later, on Thursday November 15th.120 This was four days before the ITLOS hearings were scheduled to begin in Hamburg on Monday 19 November. In the meantime, Ireland, having been given a copy of a letter from BNFL to Friends of the Earth (dated 17 October 2001), learned that BNFL intended to commission the MOX plant on 23 November 2001.121 That letter had been copied to DEFRA, but the information was not passed on to Ireland, notwithstanding its request of 30 October 2001.
8.153. Ireland submits that the action of the United Kingdom in pressing ahead with the authorisation and operation of the MOX plant, despite Irish requests that such action be suspended pending the settlement of the disputes concerning the provision of information and the violations of the United Kingdom’s duties under the UNCLOS, is a further instance of a failure to co-operate with Ireland as required by UNCLOS and in particular by UNCLOS Articles 123 and 197.
The Terrorist Threat
8.154. There is a further instance of substantive duties to which the duty of co-operation attaches in the context of the duty to protect and preserve the marine environment. That instance concerns the duty to assess and respond to the terrorist threat posed to the Sellafield site. That aspect is not explained in detail in chapter 9, and will be explained here.
8.155. Ireland is concerned both by planned and accidental emissions that are incidents of the operation of the Sellafield facilities, and by emissions that may result from deliberate attacks upon the facilities or nuclear materials being shipped to or from them (which are referred to here as the “Sellafield facilities and associated shipments”).
8.156. The United Kingdom states that the security and safety precautions of the Sellafield site are kept under regular review by the Office for Civil Nuclear Security and the Health and Safety Executive. They state that the MOX Plant is one of many plants within a large industrial site and has no special features that would single it out for terrorist attack. Ireland disagrees.
8.157. There is a danger, months after the attacks of September 11th 2001 in the United States, of supposing that nothing of that kind could ever happen again. Those, including the Irish Government, whose public or professional responsibility it is to appraise the level of risk and to respond to it in an appropriate fashion, consider that there is a real risk of terrorist activity, demanding a considered response.
8.158. The September 11th attacks have heightened both the existence of the threat to the Sellafield facility, and the urgency with which Ireland has sought reassurance on the additional protective measures introduced by the British authorities. The increased concerns are not felt only by Ireland. The international community as a whole, and more especially the international organizations which carry a particular responsibility for nuclear and shipping matters, have made considered statements calling for action on the part of States to meet the changed circumstances brought about by the events of September 11.
120 Vol 3(1), Annex 41. 121 See the letter of 17 October 2001 from BNFL to Friends of the Earth: vol 3(3), Annex 120. 175
International Concern at the Terrorist Threat
8.159. Increased safety precautions have been taken in respect of nuclear facilities around the world, now recognised as prime targets for terrorist attack.122 Japan is reported to have ordered round-the-clock patrols of the waters near its nuclear plants. France is reported to have severely restricted access to its nuclear facilities and deployed surface to air missiles and fighter aircraft to protect its nuclear waste processing plant. Authorities in the Czech Republic are reported to have tightened airspace restrictions over nuclear power stations. In the United States and elsewhere steps were immediately taken to prevent transports, both national and international, of movements of radioactive materials and wastes. On 12 September 2001 the United States Energy Secretary suspended shipments of US Department of Energy nuclear materials and atomic waste, acknowledging that such shipments constitute real targets. The moratorium on movements was re-imposed following the US military action in Afghanistan and the threat of additional terrorism in the United States. Ireland has also noted press reports stating that military planes were scrambled over the Sellafield site following credible reports of a threat to the site.123
8.160. On the international plane, the IAEA held a special session on this question on 2 November 2001 Just before that session, the IAEA Director General stated that “States need to recognise that safety and security of nuclear material is a legitimate concern of all States. Countries must demonstrate, not only to their own populations, but to their neighbours and the world that strong security systems are in place. The willingness of terrorists to commit suicide to achieve their evil aims makes the nuclear terrorism threat far more likely than it was before September 11.”124
8.161. Similarly, the Summary Report of the Second Review Meeting of the Contracting Parties to the Convention on Nuclear Safety, dated 26 April 2002 records that: “In the light of the events of 11 September 2001, the issue of assuring the security of nuclear installations from terrorist attacks was a matter of significant concern to Contracting Parties. However, noting that security in physical protection matters do not lie within the scope of the Convention, and that the sensitivity of information related to the issue would make it difficult to conduct meaningful discussion in this forum, the Review Meeting decided that consideration of this issue be excluded from the scope of the Country Group sessions. Contracting Parties were encouraged to address this issue in other appropriate international fora and in bilateral consultations.”125
8.162. The importance of co-operation and communication was emphasised in that Summary Report. The section of the Report setting out “Observations on emergency preparedness” included the following passage: “59. For several Contracting Parties without nuclear installations, the main focus of reporting was on emergency planning and on channels of communication with neighbouring countries operating nuclear installations and on active participation
122 See for example the Press Reports at vol 3(3), Annex 107. 123 Lexis, The Express, 1 November 2001: vol 3(3), Annex 107 at p 321. 124 IAEA Press Release, November 1, 2001: vol 3(3), Annex 111. 125 IAEA Doc. CNS-RM-2002/02, paragraph 6. Emphasis added. 176
in international emergency exercises. Many of these countries have also developed extensive monitoring and response capabilities. 60. Several bilateral agreements and arrangements with neighbouring countries regarding emergency preparedness were concluded during the reporting period. Such agreements or arrangements would be welcomed in those cases where nuclear installations are located in the vicinity of national borders, and such a mechanism is not already in place. 61. In the next National Reports, information would be welcomed on improvements made in the area of the emergency preparedness, including the results of national and international exercises.”
8.163. In the concluding remarks set out in the same Report, it was reported that “the review process demonstrated the value of the comprehensive exchange of nuclear safety information between peers.”
8.164. This approach is not new. In May 2001, even before the attacks on the World Trade Centre, an International Conference on Security of Material – “Measures to Detect, Intercept and Respond to the Illicit Uses of Nuclear Materials and Radioactive Sources”, concluded that “improved methodology, improved information and improved co-operation with competent national and international organizations would contribute to improving threat assessments and developing security measures.”126
THE DUTY TO CO-OPERATE OVER NUCLEAR SECURITY
8.165. The duty of the United Kingdom to co-operate over the terrorist threat to the United Kingdom arises from the UNCLOS, which imposes upon the United Kingdom a number of distinct duties in respect of the security of the Sellafield facilities. The principal obligations are as follows: a. the duty under Article 123 to co-operate and co-ordinate the exercise of its rights and performance of its UNCLOS duties, as a co-riparian with Ireland of the Irish Sea; b. the duty under Articles 193 and 194 to take all measures necessary to prevent pollution arising from terrorist attacks upon the Sellafield facilities and associated shipments; c. the duty under Article 206 to assess the potential effects of escapes of nuclear materials from the Sellafield facilities and associated shipments resulting from a terrorist attack; and d. the duty under Article 207 to take such measures as may be necessary to prevent pollution arising from terrorist attacks upon the Sellafield facilities and associated shipments, and to endeavour to harmonize its policies in this connection with Ireland as the other littoral State on the Irish Sea.
8.166. The United Kingdom is also bound by obligations set out in other agreements, notably the 1980 Convention on the Physical Protection of Nuclear Material (‘CPP’), and the IAEA Guidelines for Physical Protection of Nuclear Material and Nuclear Facilities (‘Guidelines’), the 1994 Convention on Nuclear Safety, and the 1997 Joint Convention on
126 IAEA Doc. GOV/2001/37-GC(45)/20, paragraph 5, 14 August 2001. 177 the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management. (Some of these are primarily relevant to shipments, rather than to material on-site at Sellafield, and will be considered below.)
8.167. These instruments are relevant in two ways: first, as a guide to the interpretation of the duties imposed by UNCLOS; and second, as instances of what UNCLOS Article 293(1) refers to as the “other rules of international law not incompatible with this Convention,” which the present Tribunal is directed to apply to the case before it. Their significance is that they underline that the appraisal of the terrorist threat and the preparation of responses to it are not matters that are exempted from the duty to co- operate.
Duties under UNCLOS
8.168. It is convenient to consider first the obligations of the United Kingdom imposed by the UNCLOS in relation to the security of the Sellafield plant. The United Kingdom’s duties begin at the stage when the planning of operations at the Sellafield plant, and of shipments to and from that plant, is first undertaken. Article 206 of UNCLOS addresses that stage of the activity, imposing a duty to assess the effects of the MOX project on the marine environment.
8.169. UNCLOS Article 205, in turn, requires States either to publish reports or to provide them to the competent international organizations, which should make them available to all States. The essential obligation under Article 206, however, is the making of the assessment of the risk to the environment, rather than the communication of the report of the assessment. The application of UNCLOS Articles 205 and 206 in the circumstances of the present case has been explained above.127
8.170. The final authorisation of the operation of the MOX plant was given after the events of 11th September 2001.128 The authorisation entailed direct and indirect consequences. Directly, the MOX plant establishes another nuclear facility at Sellafield. Indirectly, associated facilities including the THORP plant and the waste management and storage facilities may, as result of the operation of the MOX plant, be required to hold more radioactive material. Ireland is concerned with the additional material, beyond that which would have been found on the site if the MOX had not been developed. The additional material is the material that would not have been present but for the development of MOX plant, including the material that may be expected to be found on the site at dates after the date at which the THORP plant and associated waste and storage facilities would have been expected to close down but for the development of the MOX plant.
8.171. As far as Ireland is aware, the United Kingdom made no attempt to assess the pollution risk arising from terrorist action before the MOX plant was authorised. It certainly did not inform Ireland of any such assessment, or attempt to so inform Ireland.
8.172. The risk-assessment obligation under Article 206 is supplemented by the obligation to take the steps that are necessary to prevent any pollution actually occurring.
127 See paragraphs 7.7 et seq. 128 See the decision of 3 October 2001: Annex 92. 178
8.173. UNCLOS Articles 193 and 194 impose upon States Parties duties concerning the protection and preservation of the marine environment. Article 193 stipulates that the right of States to exploit their natural resources is subject to a duty to “protect and preserve the marine environment.” Article 194 amplifies that obligation by stipulating inter alia that States must “take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal” and “endeavour to harmonize their policies in this connection.” (Article 194 is discussed in greater detail in chapter 9.129)
8.174. Articles 193 and 194 (and also Article 211, which contains comparable provisions relating to vessel-source pollution) build upon the base established by Article 206. The evident scheme is that a State, having made its assessment of the risk to the environment, should then take steps, individually or jointly with other States “as appropriate”, to prevent, reduce and control such pollution as might occur.
8.175. Article 207 is more specific. It deals with pollution from land-based sources. Again, States are obliged to take all necessary steps to prevent, reduce, and control pollution of the marine environment. Those steps include the adoption of legislation and taking of “other measures necessary to prevent” pollution, and endeavouring to harmonize policies at the appropriate regional level.
8.176. The application of these obligations to prevent pollution in the circumstances of the present case is discussed in detail in chapters 7 and 9.
8.177. All of these UNCLOS obligations are to be read in the light of the United Kingdom’s general obligation in Article 123 to co-operate and co-ordinate the exercise of its rights and performance of its duties with Ireland, as the co-riparian of the semi-enclosed Irish Sea.
Duties under Other International Instruments
8.178. The obligations under the UNCLOS are general in nature, but greater precision can be given to their meaning by looking to other international instruments.
8.179. These instruments are relevant because they demonstrate the need for co-operation, and specifically because they indicate what, in the context of the UNCLOS duty to take “necessary” measures for the protection of the marine environment, the international community regards as “necessary”. They are, it will be recalled, also relevant as what UNCLOS Article 293(1) refers to as the “other rules of international law not incompatible with this Convention,” which the present Tribunal is directed to apply to the case before it.
The 1994 Convention on Nuclear Safety
8.180. The duty to communicate and liase with other States potentially affected by radiological emissions is a core element of international arrangements concerning nuclear materials. Thus, the 1994 Convention on Nuclear Safety,130 concluded under the auspices of the IAEA, applies to “nuclear installations”, defined in Article 1 as “any land-based
129 See paragraphs 9.10 et seq. 130 IAEA INFCIRC/449; 33 ILM 1514 (1994). 179 civil nuclear power plant under its jurisdiction including such storage, handling and treatment facilities for radioactive materials as are on the same site and are directly related to the operation of the nuclear power plant.”
8.181. The 1994 Convention contains in Article 16 a provision concerning emergency preparedness. That provision reads, insofar as is material, as follows: “1. Each Contracting Party shall take all the appropriate steps to ensure that there are on-site and off-site emergency plans that are routinely tested for nuclear installations and cover the activities to be carried out in the event of an emergency […] 2. Each Contracting Party shall take the appropriate steps to ensure that, insofar as they are likely to be affected by radiological emergency, its own population and the competent authorities of the States in the vicinity of the nuclear installation are provided with appropriate information for emergency planning and response. 3. Contracting Parties which do not have a nuclear installation on their territory, insofar as they are likely to be affected in the event of a radiological emergency at a nuclear installation in the vicinity, shall take the appropriate steps for the preparation and testing of emergency plans for their territory that cover the activities to be carried out in the event of such an emergency.”
8.182. That provision makes explicit the duty to provide information to a neighbouring State. It is restated in general terms in the International Law Commission’s Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, which were discussed above.131 It cannot be supposed that the intention of the 1994 Convention was to provide only such information as would enable a neighbouring state to activate its own emergency plans only if it were possible to give that State notice of the emergency immediately before it occurred. Common sense dictates that if there are changes in the nature of the activities in or associated with the nuclear installation, which affect the nature or degree of the risk to which States in the vicinity are exposed, those State should be notified in advance in order that they might be able to make any necessary adjustments in their real, as opposed to their hypothetical, emergency plans. That fact is fully recognized and made explicit in the ILC Draft Articles.
The 1997 Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, 1997
8.183. The Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, 1997 (the “Spent Fuel Convention”)132 applies to nuclear facilities, defined in Article 2(f) as “a civilian facility and its associated land, buildings and equipment in which radioactive materials are produced, processed, used, handled, stored or disposed of on such a scale that consideration of safety is required”. It also applies to radioactive waste management facilities, defined as “any facility or installation the primary purpose of which is radioactive waste management, including a nuclear facility in the process of being decommissioned only if it is designated by the Contracting Party as a radioactive waste management facility”133, and also spent fuel
131 See paragraph 8.50 et seq, The Draft Articles and Commentary appear in vol 3(1), Annex 73. 132 IAEA Doc. INFCIRC/546; http://www.iaea.or.at/worldatom/Documents/Legal/jointconv.shtml. 133 Article 2(j). 180 management facilities, defined as “any facility or installation the primary purpose of which is spent fuel management”.134
8.184. The 1997 Convention contains a number of provisions that require co-operation and co-ordination between States. Article 25 of the Convention, entitled “Emergency Preparedness”, refers to the duties both of States where plants are located, and also of neighbouring States, to draw up emergency plans. It reads as follows: “(1) Each Contracting Party shall ensure that before and during operation of a spent fuel or radioactive waste management facility there are appropriate on-site and, if necessary, off-site emergency plans. Such emergency plans should be tested at an appropriate frequency. (2) Each Contracting Party shall take the appropriate steps for the preparation and testing of emergency plans for its territory insofar as it is likely to be affected in the event of a radiological emergency at a spent fuel or radioactive waste management facility in the vicinity of its territory.”
8.185. It cannot be supposed that the drafters of the provision intended that neighbouring States should draw up emergency plans in isolation from one another. A radiological emergency could be a public emergency of the utmost seriousness, affecting a very extensive area. The risk of unnecessary duplication of effort, of emergency services in neighbouring States adopting plans that cut across each other, or in some other way behaving in a manner that their neighbours had not anticipated, is something that cannot simply be ignored. A good faith attempt to devise and test meaningfully emergency plans must involve consultation and co-operation with neighbouring States.
8.186. Indeed, the 1997 Spent Fuel Convention affirms “the importance of international co-operation in enhancing the safety of spent fuel and radioactive waste management through bilateral and multilateral mechanisms,”135 and obliges States proposing to establish spent fuel and waste management facilities to consult with other States in the vicinity of the facility “and to provide them, upon their request, with general data relating to the facility to enable them to evaluate the likely safety impact upon their territory.”136
The Terrorist Threat Raised in Ireland-UK Meetings
8.187. The United Kingdom is bound to co-operate with Ireland in respect of the terrorist threat. But the United Kingdom has consistently refused to discuss that question with Ireland in any but the most vague and general of terms, expecting Ireland to rely solely upon British assurances that Ireland has nothing to worry about. That is not a satisfactory basis upon which Ireland can plan its practical responses; and it is not an appropriate manner in which to conduct State-to-State co-operation. It falls short of the United Kingdom’s obligations under the UNCLOS.
8.188. Ireland is of course aware that security questions may involve information of the highest sensitivity and confidentiality. It accepts, without hesitation or reservation, that States receiving such information are bound as a matter of law to respect the confidentiality that properly attaches to it.
134 Article 2(p). 135 Preamble, paragraph ix. 136 Articles 6(1)(iv) and 13(1)(iv). 181
8.189. The question of the terrorist threat was raised at a meeting of the Radiological Protection Institute of Ireland and the British Nuclear Installations Inspectorate (‘NII’) in November 2001. The RPII was told that if appropriate security clearances were obtained through the British Foreign and Commonwealth Office, the NII would be happy to brief the RPII on its assessment of the terrorist threat to British nuclear installations.
8.190. Ireland has sought such clearances, but the United Kingdom has taken the view that while it will explain the processes that it follows to assess the threat, evaluate vulnerabilities and develop effective countermeasures, it will not discuss details of security at civil nuclear sites, even with foreign regulators. Nor will it discuss the security assessments themselves. Accordingly, Ireland has no knowledge of the design/build characteristics of the installations at the Sellafield site, or of the United Kingdom’s assessment of the terrorist threat.137 While Ireland has accepted the invitations extended by the British authorities to attend security briefings, in order to obtain such information as is offered, it remains concerned that it does not have sufficient detailed information to enable it to make a considered assessment of the nature and extent of the terrorist threat.
8.191. For example, Ireland naturally wishes to evaluate the risks of an attack upon the Sellafield plant and to make its own contingency plans. The difficulties that it faces may be illustrated by reference to the case of the assessment of the risk of leakage following an attack upon the Highly Active Storage Tanks (“HASTs”), whose use will be increased and prolonged as a result of the operation of the MOX plant.
8.192. The HASTs house the liquid waste from the Thorp and Magnox plants. There are 21 such tanks, of two different types: the original tanks 1 to 8 and the later ones 9 to 21. Each of the original tanks is a horizontal cylinder made of a stainless steel, with a capacity of 70 cubic metres and a simple coil cooling system also made of stainless steel.
8.193. The eight original tanks are housed in pairs within four reinforced concrete cells which absorb the radiation from the liquid and so permit the operators to work close to the tanks without being exposed to radiation. The cells also protect the tank from external events, such as an accidental aircraft crash that could cause part, or all of the building in which the tanks are housed, to collapse on top of it. The cells also protect the environment: for example, should a tank leak, the cell will retain the liquid waste and so prevent leakage into the environment. It is understood that the concrete in each cell is reinforced. The thickness of the walls and roofs of the cells is thought to vary, between about 1 and 2 metres.
8.194. Tanks 9 to 21 are vertical stainless steel cylinders each with a capacity of 150 cubic metres and several complicated cooling systems, one of which is contained in a cooling jacket that surrounds the tank forming, in effect, a second tank and thus an extra containment barrier. The tanks are contained in individual concrete cells similar in design to those housing tanks 1 to 8. An additional feature of these later tanks is the agitation systems fitted to prevent solidification and/or plating out of suspended solids on surfaces.
8.195. Both sets of tanks have systems for transferring liquid from one tank to another, including steam ejectors. They also have ventilation systems which provide a permanent depression inside the tanks so that any leak which might occur will initially be from outside to inside. The ventilation clears the atmosphere above the liquid waste of any gases, such as hydrogen, that may be generated by radiolysis. The exhaust from the system
137 See Confidential Annex: letter from R. Dempsey to K. Wager, 18 February 2002. 182 is ducted through sophisticated filters that prevent radioactive contamination of the environment.
8.196. High-level radioactive liquid waste, resulting from the dissolution of spent reactor fuel in nitric acid, comes from the nearby Thorp and Magnox plants. The decay of the radioactive liquid generates significant heat (several kilowatts per cubic metre in the case of fresh liquid), and so it must be constantly cooled to prevent the liquid from boiling. Eventually, after the liquid is sufficiently aged and producing less heat, it is discharged into a vitrification plant where it is transformed into glass blocks.
8.197. Six of the 21 tanks are meant usually to be empty and standing by to receive the contents of a tank in-use should there be a problem with it such as leakage or loss of cooling. The total contents of the tanks is thought not to have changed much over the past 5 years because the input from reprocessing plants has roughly equalled the discharge to the vitrification plant. If a fraction of this radioactive waste, say a tenth, were to be released then there would follow an environmental catastrophe on the scale of Chernobyl.
8.198. Ireland has attempted to calculate the extent of a risk of such a release arising from a hijacked airliner crashing on to the site. It is unable to reach any satisfactory conclusion, however, because of uncertainty of key variables. For example, Ireland does not know what security measures have been introduced post September 11, in order to prevent such an aircraft reaching the Sellafield site. It does not know the exact dimensions of the buildings in the vicinity of the HASTs: that affects the probability of an aircraft hitting that building, and also the possible angle (and hence the force) of impact. It does not know the thickness and condition of the concrete, or its ability to withstand prolonged exposure to extremely high temperatures. It does not know whether enhanced fire-fighting services, such as helicopter water dumping and equipment for fighting oil fires have been installed, and if so how long their deployment would take.
8.199. After any such crash, the cooling, ventilation and other safety systems in the building will be out of action. Although six tanks are assumed to be empty, and the contents of some others will not boil because they do not produce enough heat, some of the remaining ones (perhaps nine of them) can be expected to boil, the most radioactive of them after a period of some 14 to 18 hours. The liquid will then vaporize into the atmosphere through the damaged ventilation system. The plant operators and others have about 16 hours in these difficult circumstances to, extinguish the fire, clear the rubble, gain access to the damaged systems, diagnose faults in them, and restore cooling to the tanks if boiling and vapour discharge to the atmosphere is to be avoided. Ireland does not know whether the United Kingdom has plans capable of achieving these results.
8.200. Again, Ireland does not know what drainage routes and surface-waters routes would be taken from liquids spilling from HAST site or resulting from fire-fighting operations. Such liquids may run off directly into the Irish Sea, or run off into the River Calder and thence into the Irish Sea, or seep into the ground and then enter the Irish Sea directly or via the River Calder. (In addition, radioactive emissions may enter the Irish Sea via atmospheric dispersion.) Ireland does not know what interceptor facilities or storage pools there are to minimise such run-off, or what culverts, drains and hard surfaces might facilitate run off to the Irish Sea.
8.201. This example could be repeated for other components of the Sellafield site. The MOX plant has magnified and prolonged Ireland’s exposure to these risks. 183
8.202. The practical need that Ireland has to make such an assessment is plainly reflected in the extent of public concern in Ireland about the risk from an attack on Sellafield.138
8.203. The Government of Ireland has responsibilities to its own population, and to the international community as a whole, to put in place adequate, appropriate measures to guard against such risks. In order to do so, it submits that it is entitled to be given the necessary information by the United Kingdom. The scope of that duty to provide information was well expressed by the ILC Draft Articles, which oblige States to provide “not only what might be called raw data, namely fact sheets, statistics, etc., but also the analysis of the information which was used by the State of origin itself to make the determination regarding the risk of transboundary harm”, and also “other data which might become available later after transmitting the data which was initially available to the States likely to be affected.”139 In short, the United Kingdom is under a duty of due diligence to provide whatever information would be useful for the purpose of prevention of risk of significant harm.140
D. NON-COOPERATION OVER THE SHIPMENTS OF NUCLEAR MATERIALS ASSOCIATED WITH THE MOX PLANT
8.204. The third instance of the failure to co-operate is concerned with the international transports carrying materials to and from the Sellafield plant by sea (the “associated shipments”). The need for such security is extended, both in time and in scope, by the development and operation of the MOX plant. That plant is itself a new nuclear facility; it will prolong the life of the THORP plant and other activities at Sellafield; and it will also increase the number of shipments of nuclear material through Irish waters and the Irish Sea.
8.205. The essence of Ireland’s argument is, again, that the United Kingdom is not bound merely to take the steps that it regards as adequate to ensure the security of the Sellafield plant and the associated shipments. The United Kingdom is bound also to consult and co- operate with Ireland in the security matters, and in particular to share with Ireland information concerning the security measures that the United Kingdom has taken or proposes to take, so that Ireland may make its own plans in a manner that harmonises with the plans of the United Kingdom.
INTERNATIONAL CONCERN OVER NUCLEAR SHIPMENTS
8.206. The terrorist threat is a matter of particular importance in the context of the shipments of nuclear material. The IMO is currently focusing upon that issue. The Assembly of the IMO, at its 22nd meeting in November 2001, decided to review the existing legal and technical measures to prevent and suppress terrorist acts against ships.141 In May 2002 the IMO Maritime Safety Committee (‘MSC’) began preparations for a diplomatic conference on Maritime Security, to be held in December 2002. The MSC
138 See the press material in vol 3(3), Annex 107. And see the STOA Report: vol 3(3), Annex 105. 139 See above, paragraph 8.52. 140 See paragraphs 8.50-54, above. 141 IMO News, No. 4 2001, p 5. 184 prepared, inter alia, a draft International Ship and Port Facility Security Code (“ISPS Code”), which would be implemented through SOLAS Chapter XI. The ISPS Code would require each ship to have a security plan, to deal with threats to the ship. The MSC also considered a draft functional requirement for a long-range tracking and identification system.142
8.207. The Governments of the G-8 countries considered the terrorist threat in June 2002. They committed up to $20 billion to co-operative anti-terrorist projects, and specifically urged co-operation “in order to improve the capability of governments to deter and prosecute terrorist attacks on maritime vessels or the use of such vessels to further terrorist activities.”143 They also identified the 1980 Vienna Convention on the Physical Protection of Nuclear Material as one of the international conventions addressing counter-terrorism that States are urged to ratify.144
8.208. It will be evident from the material set out below that there is a far-reaching and well-established international regime concerning the transportation of nuclear materials. That regime, as might be expected, depends crucially upon the active co-operation of all States involved and upon their willingness to exchange information, promptly and fully, which bears upon any threats to all risks from those installations and materials.
8.209. This dependence upon exchanges of information is generally recognised. For instance, the Summary Report of the Second Review Meeting of the Contracting Parties to the Convention on Nuclear Safety, dated 26 April 2002, noted (in paragraph 31) that “ the importance of international co-operation between regulatory bodies for the enhancement of nuclear safety through bilateral and multilateral mechanisms was emphasised by all Contracting Parties.”145
DUTIES UNDER UNCLOS
8.210. The obligations of the United Kingdom imposed by the UNCLOS in relation to the security of the associated shipments arise from the same Articles as the obligations in relation to the security of the Sellafield site, discussed in the previous section.
DUTIES UNDER OTHER INTERNATIONAL INSTRUMENTS
8.211. The duty to co-operate that is established by the general obligations under the UNCLOS is underlined by other international instruments, relevant both as guides to the detailed interpretation of the UNCLOS provisions and as “other rules of international law” under UNCLOS Article 293(1).
142 Information concerning the MSC 75th session, 15-24 may 2002, from http://www.imo.org/Newsroom. 143 G8 Recommendations On Counter-Terrorism, June 13, 2002, Section 6.5: http://www.iaea.org/worldatom/press/focus/radsources/g8_recomend.html. 144 G8 Recommendations On Counter-Terrorism, June 13, 2002, Section 1.1: http://www.iaea.org/worldatom/press/focus/radsources/g8_recomend.html. 145 IAEA Doc. CNS-RM-2002/02. 185
The 1980 Convention on the Physical Protection of Nuclear Material
8.212. The 1980 Convention on the Physical Protection of Nuclear Material (‘CPPN’)146 applies to nuclear material used for peaceful purposes while in international nuclear transport. Article 4(1) of the CPPN requires that States Parties shall not export or authorize the export of nuclear material unless the State Party has received assurances that such material will be protected during the international nuclear transport at the levels described in Annex 1” of the Convention.
8.213. Annex 1, which is an integral part of the CPPN, in turn provides, in paragraph 2, that “(a) For Category II and III materials, transportation shall take place under special precautions including prior arrangements among sender, receiver, and carrier, and prior agreement between natural or legal persons subject to the jurisdiction and regulation of exporting and importing States, specifying time, place and procedures for transferring transport responsibility; (b) For Category I materials, transportation shall take place under special precautions identified above for transportation of Category II and III materials, and in addition, under constant surveillance by escorts and under conditions which assure close communication with appropriate response forces.”
8.214. CPPN Annex II stipulates that plutonium (except that with isotopic concentration exceeding 80% in plutonium-238) falls within Category I if it is in the amount of 2kg or more. If the amount is less than 2kg but more than 500g, plutonium falls in Category II; and if the amount is 500g or less but more than 15g, it falls in Category III.
8.215. Shipments of plutonium to Sellafield are expected to involve amounts in excess of 2kg. They will accordingly be Category I shipments. It is therefore required by Annex 1, paragraph 2(b) of the CPPN that they be transported “under constant surveillance by escorts and under conditions which assure close communication with appropriate response forces.”
8.216. It is Ireland’s view that the essential characteristic of an escort is that it remains free to act independently to protect the carrier, if the carrier is under attack. Ireland does not regard an arrangement under which two armed commercial transport ships carrying nuclear material are said to escort each other as a satisfactory fulfilment of this obligation. It notes that in 1999 the Chairman of the US House of Representatives International Relations Committee wrote to the then Secretary of State Madeline Albright expressing concern about MOX deliveries to Japan by ship. He stated that “with a top speed of 13 Knots [the ships] would not appear to have sufficient defensive and deterrent ability much less the manoeuvrability or speed of military or coast guard escort ships”.147 Similarly according to Janes, the recognised arms and naval authority, the ships are “capable of repelling only a light armed attack” and need to be protected by “at least one well-armed frigate.”148
146 IAEA Doc. INFCIRC/274/Rev.1; http://www.iaea.or.at/worldatom/Documents/Infcircs/Others/inf274r1.shtml. 147 Letter dated 11 February, 1999 at Annex 108. 148 Jane’s Information Group Foreign Report, May 13, 1999. 186
8.217. “Appropriate response forces” must include those forces that might be called upon to respond to any threats to the shipments. It must also include those States whose permission or co-operation might be needed for any response to an incident involving the shipment. Such obviously necessary forward planning is self-evidently an essential part of any reasonable scheme for the protection of the materials.
8.218. The measures described so far establish clearly that there is a duty on the United Kingdom to take steps to secure the shipments against the threat of terrorist attack. Indeed, it is not likely that the existence of that obligation is controversial.
8.219. It is clear that this obligation includes an obligation to consult and co-ordinate with Ireland. The United Kingdom’s duty to consult and coordinate with Ireland is in part a consequence of the more general duty of consultation and co-ordination that was discussed above in paragraphs 8.18-8.92. An attack upon the shipments would entail the risk of pollution of the waters around the Irish coast, and the general obligations that are incumbent upon the United Kingdom in relation to marine pollution are applicable in this context, too.
8.220. The CPPN also expressly imposes a duty to inform other States and to exchange information with other States concerning threats to nuclear material. The provision appears in Article 5, which reads in part as follows: “1. States parties shall identify and make known to each other directly or through the International Atomic Energy Agency their central authority and point of contact having responsibility for physical protection of nuclear material and for co-ordinating recovery and response operations in the event of any unauthorised removal, use alteration of nuclear material, or in the event of credible threat thereof. 2. In the case of theft, robbery or any other unlawful taking of nuclear material or of credible threat thereof, States Parties shall, in accordance with their national law, provide co-operation and assistance to the maximum feasible extent in the recovery and protection of such material to any state that so requests. In particular: a. a State Party shall take appropriate steps to inform as soon as possible other states, which appeared to it to be concerned, of any theft, robbery or other unlawful taking of nuclear material or credible threat thereof and to inform, where appropriate, international organisations; b. as appropriate, the States Parties concerned shall exchange information with each other or international organisations with a view to protecting threatened nuclear material, verifying the integrity of the shipping container, or recovering unlawfully taken nuclear material and shall: i. co-ordinate their efforts through diplomatic and other agreed channels; ii. render assistance, if requested […]”
8.221. The threat to nuclear materials at the present moment, including those being shipped to Sellafield, is evident, and has been reiterated forcefully on a number of occasions by States and by international organisations even during the time that these proceedings have been in train. There is a “credible threat”, international in scale, to those materials. The precondition for the operation of the duty under Article 5(2) is plainly met; and the United Kingdom is accordingly under a duty to co-operate and co-ordinate actions 187 with Ireland and to exchange information with a view to protecting threatened nuclear material.
The IAEA Guidelines on Physical Protection of Nuclear Material and Nuclear Facilities
8.222. The IAEA draws up Guidelines on the Physical Protection of Nuclear Material and Nuclear Facilities, which supplement the provisions of the 1980 Convention (the “IAEA Guidelines”). The current (May 1999) text, INFCIRC/225/Rev.4,149 contains a number of provisions which specifically direct States to co-operate, consult, and exchange information on the physical protection of nuclear materials and facilities. The direction is given in general terms in the opening paragraphs. The material provisions read as follows: “1.3 in implementing these recommendations, states are encouraged to co-operate and consult, and to exchange information on physical protection techniques and practices, either directly or through international organisations. States should aid each other in physical protection, and particularly in the recovery of nuclear material, in cases where such aid is requested. … 1.5 States should inform each other, either directly or through the International Atomic Energy Agency, of appropriate points of contact for matters related to the physical protection of nuclear material and nuclear facilities.”
8.223. Those general provisions apply to nuclear materials located at land-based facilities and nuclear materials in shipment alike. They thus apply both to material stored or used at the Sellafield plant, and also to nuclear material in transit to or from the Sellafield plant.
8.224. There are further, more specific provisions concerning international shipments of nuclear materials. For example, it is stipulated in Paragraph 4.2.6.3 of the IAEA Guidelines that: “When international shipments transit the territory of States other than the shipping State on the receiving State, the arrangements between the shipping and receiving States should identify the other States involved in such transit with a view to informing them and securing in advance their co-operation and assistance for adequate physical protection measures and for recovery actions for the territory of such States in case of loss of an international shipment thereon.”
8.225. This provision is not directed solely at transport across the land territory of States other than the shipping State and the receiving State, and at transit through the territorial seas of States. Even if it could be thought appropriate to construe in such a narrow and technical manner a provision that is designed to secure the safety of States and their populations in the face of risks arising from movements of ultra-hazardous materials, it is evident that the IAEA Guidelines were conceived as having a broader application.
8.226. Thus, paragraph 8.4.2 deals with “selection of mode of transport and routing”. It reads as follows: “8.4.2.1 In choosing the route, consideration should be given to the security of passage, in particular, arranging the route in such a way as to avoid areas of natural disasters or civil disorders, and taking into consideration the capabilities
149 http://www.iaea.or.at/worldatom/program/protection/inf225rev4/rev4_content.html. 188
of the response force. The transport method for any given consignment should be such as to keep to a minimum the number of cargo transfers and the length of time the cargo remains in transport. The co-operation of the carrier concerning the implementation of physical protection measures should be insured in advance. 8.4.2.2 Competent authorities should approve the route, including alternate routing as appropriate, stopping places, destination hand-over arrangements, identification of persons authorised to take delivery, accident procedures, and reporting procedures, both routine and emergency.”
8.227. Plainly, similar considerations will apply whether the transit is by land or by sea. It is not credible that those provisions should simply be inapplicable in the case of, for example, transit by sea in an area in which small vessels carrying armed terrorists are known to be operating. But if they apply to one sea transport, they must apply to all, although the lower the level of risk of an attack, the lower the level of precautionary measures that may be necessary.
8.228. This interpretation is confirmed by the IAEA Guidance and Considerations for Implementation of INFCIRC/225/Rev.3150 (the predecessor of the current Guidelines), which refers explicitly to transits through international waters. That Guidance stipulates, in paragraph 452, that: “For sea shipments through international waters, the competent authority will require to be satisfied that adequate arrangements have been made regarding maintenance of communications throughout voyage and that response forces have been designated for both international and foreign territorial waters. Close liaison will be necessary therefore with relevant overseas competent authorities before shipment, and relevant communication links established for use immediately prior to and during the shipment.”
The application of the Guidance in international waters is there made explicit. There is no reason whatever to suppose that the current Guidelines were intended to disapply their provisions to the vast areas of the seas that fall outside States’ territorial seas.
8.229. Far from informing Ireland and securing in advance its co-operation and assistance for adequate physical protection measures relating to the nuclear shipments, the United Kingdom is cutting Ireland out of plans and denying that Ireland has any interest in the protection of the shipments.
8.230. In the meantime, the international community continues to promote its consistent policy of urging co-operation. The continuing focus upon consultation and co-operation was made plain in 2000, when the IAEA adopted Resolution GC(44)/RES/17, which invited Member States shipping radioactive materials to provide “potentially affected States …with relevant information relating to shipments of such materials.” The need for confidentiality was recognized. The statement added that “the information provided should in no case be contradictory to the measures of physical security and safety”.151
150 http://www.iaea.or.at/worldatom/program/protection/infcirc225/guidance/main.html. 151 IAEA GC(44)/RES/17, September 2000, paragraph 7. http://www.iaea.or.at/worldatom/About/GC/GC44/Resolutions/gc44res17.pdf. 189
IMO Instruments
8.231. The IMO has also adopted instruments relevant to the question of security. The IMO has adopted an International Code for the Safe Carriage of Packaged Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Waste on Board Ships (the “INF Code”). Chapter 10 of the INF Code stipulates that every ship carrying an INF cargo shall carry on board a Shipboard Emergency Plan (‘SEP’) based on guidelines developed by the Organization.152 The Guidelines supporting the 1993 version of the Code define a “Shipboard Emergency Plan” and state that the Plan should provide for small and routine emergencies, and should include guidance to meet the demands of a large scale incident.153 At a minimum, the plan is required to have a procedure to be followed to report an incident involving INF cargo; 154 the list of authorities or persons to be contacted in the event of an incident involving INF cargo; a detailed description of the action to be taken immediately by persons on board to prevent, reduce or control the release, and mitigate the consequences of the loss, and the procedures and points of contact on the ship for coordinating shipboard action with national and local authorities. Section 2 of the Guidelines stipulates the essential provisions of an SEP for ships carrying materials subject to the INF Code which includes a Report to the nearest coastal state whether there is a actual or probable release and in the event of damage, failure or breakdown of a ship carrying INF Code material, so that appropriate action maybe taken. The Plan should include a list of agencies and officials of the administration of the nearest coastal state.155 These Guidelines concentrate on the safety of the crew and vessel. The Guidelines offer no advice on measures aimed at preventing contamination of the marine environment following an incident involving an INF cargo.
8.232. In IMO Resolution A.893(21), adopted on 25 November 1999, the IMO Assembly adopted the IMO Guidelines for Voyage Planning.156 Those Guidelines call for the preparation of detailed voyage plans “on the basis of the fullest possible appraisal.”157 It is stipulated that such plans should include “contingency plans for alternative action to place the vessel in deep water or proceed to a port of refuge or safe anchorage in the event of any emergency necessitating abandonment of the plan, taking into account existing shore-based emergency response arrangements and equipment and the nature of the cargo and of the emergency itself.”158
In the case of a ship with characteristics as exceptional, and a cargo as dangerous, as the PNTL ships serving the Sellafield site, those plans cannot be made without consultation between the ship and the coastal State. Once again, the paramount necessity for consultation is underlined.
152 This is a reference to the 1998 Guidelines For Developing Shipboard Emergency Plans for Ships Carrying Materials Subject to the INF Code adopted by the IMO by Resolution A.854(20 (the “1998 Guidelines’). Available at http://www.info.gov.hk/mardep/msnote/msin9818.pdf. 153 1998 Guidelines, Section 1. 154 Chapter 11 of the INF Code stipulates the procedure to be followed in such an event. 155 Section 2.3 – 2:13 156 IMO Doc. A.2/Res. 893, 4 February 2000. 157 Section 3.1. 158 IMO Guidelines for Voyage Planning, Section 3.2.9. 190
Other Indications of International Concern
8.233. The need for information and consultation was underlined in the Declaration by Member States and Regional Groups, regarding Safety in the Maritime Transport of Radioactive Material, distributed in the IAEA on behalf of a considerable number of States.159 That text recalls the provisions of Resolution GC(44)/RES/17 quoted above, and then set out a number of communiqués and declarations made by countries on the subject.
8.234. For example, in December 2000, the Governments of Argentina, Brazil, Chile and Uruguay issued a Joint Declaration on the Transport of Radioactive Waste stating the following: “We reiterate our concern to the Governments of France, Japan and the United Kingdom that these shipments take the Cape Horn route. We note the need to continue working within the competent international organizations to strengthen regulations on safety in the transport of radioactive material. We believe that consideration should be given, inter alia, to assurances of non-contamination of the marine environment, exchange of information on selected routes, communication of emergency plans in the case of accident, the commitment to recover the radioactive material if the ships carrying it are involved in an accident, and the importance of having effective liability mechanisms in place”.160
8.235. The cardinal importance of consultation and co-operation has been recognised in a number of very recent international meetings. What is striking about the conclusions of these meetings is not so much the importance that they attach to co-operation and exchanges of information, the need for which is glaringly obvious, but the singular absence of any inclination to regard the security of nuclear materials as a matter that can be left to the authorities of the States of origin or of destination of nuclear materials.
8.236. In April 2001 the UN Commission on Sustainable Development adopted a decision urging that Governments “(h) Recalling paragraph 8 of the Governing Council of the International Atomic Energy Agency (IAEA) resolution GC (44)/RES/17 and taking into account the very serious potential for environment and human health impacts of radioactive wastes, make efforts to examine and further improve measures and internationally agreed regulations regarding safety, while stressing the importance of having effective liability mechanisms in place, relevant to international maritime transportation and other transboundary movement of radioactive material, radioactive waste and spent fuel, including, inter alia, arrangements for prior notification and consultations done in accordance with relevant international instruments.”161
Once more, prior notification and consultation are singled out as the key to securing the safe movement of radioactive materials.
159 IAEA Document GC(45)/INF/18, 17 September 2001. http://www.iaea.or.at/worldatom/About/Policy/GC/GC45/Documents/gc45inf-18.pdf 160 See chapter 2, paras 2.43-49. 161 UN Doc. E/2001/29, E/CN.17/2001/19, Decision 9/1, paragraph 21(h). http://www.un.org/documents/ecosoc/docs/2001/e2001-29.pdf 191
8.237. In September 2001 the IAEA plenary meeting adopted a Resolution entitled Measures to Strengthen International Co-operation in Nuclear, Radiation, Transport and Waste Safety.162 That Resolution, having recalled “that States have under international law the obligation to protect and preserve the marine environment”, and that IAEA Resolution GC(44)/RES/17 had invited Member States shipping radioactive materials to provide “potentially affected States …with relevant information relating to shipments of such materials”, welcomed “the practice of some shipping States and operators of undertaking timely consultations with relevant coastal States in advance of shipments” and invited others to do so.
THE FAILURES REGARDING THE ASSOCIATED SHIPMENTS
8.238. The United Kingdom has failed to consult and co-ordinate with Ireland over the security of the shipments associated with the MOX plant. At the time of writing, Ireland still does not know the number of expected shipments, what routes shipments might take, what security arrangements are in place, or any other of the details that have been repeatedly sought from the United Kingdom over the past years.
8.239. As was explained in chapter 2, the shipments are carried on civil ships, specially constructed and equipped to carry nuclear cargoes, and owned and operated by PNTL, a consortium whose members are the British, French and Japanese nuclear operators.163
8.240. There are three routes that may be taken by the nuclear transports carrying material between the British port of Barrow and Japan: the Panama canal route; the route around South America; and the route around South Africa. Whichever route is taken, the voyages begin or end in the Irish Sea, one of eight global High Risk Areas for shipping where wind and sea states of Force 7 or above occur for 20% to 30% of the year.164
8.241. Irish authorities need to prepare for the arrival of the shipments. The Irish Coast Guard needs to develop a preparedness, response and co-operation framework, in order to respond if incident should take place. Moreover, as a matter of Irish (and of international) law, there is no absolute right for ships that are in a dangerous condition to enter the ports or internal waters of the State, even if they are in distress or need to seek refuge in order to save the ship or its cargo. To the extent that there is a possibility that any ship bound to or from Sellafield might need to seek refuge in Irish waters, that is a matter that prudence dictates should be addressed in advance.165
8.242. Some of the necessary information is readily available. For instance, the IAEA standards applicable to the casks in which the nuclear material is carried on the PNTL ships. What is not, however, clear is whether those standards are adequate for casks carried on ships. For example, the IAEA standards require that a flask should be able to withstand an engulfing fire, at 800°c, for 30 minutes. In practice, fires on board ship may reach
162 IAEA Doc. GC(45)/RES/10, 21 September 2001. 163 See chapter 2, paras 2.50-56. 164 Lloyds of London defines the “Marine High Risk Areas” where weather conditions, sea states, vessel numbers and route congestion give rise to high shipping casualty numbers. See vol 3(3), Annex 106. 165 See section 23, Sea Pollution Act, 1991: Annex 90; and ACT Shipping (PTE) Ltd v. Minister for the Marine, [1995] 3. I.R. 406. The statutory position is different if entry is necessary in order to save life. Further Irish legislation, establishing Ireland’s territorial sea and 200-mile zone, and providing for certain matters in relation to oil pollution incidents, is set out in Annexes 87, 88, 89 and 91. 192
1100°c, and last for many hours, or even days. Coastal States, such as Ireland, have an interest in knowing whether a nuclear flask on a ship in its waters could withstand such a fire, and the possible subsequent immersion of the super-heated flask into cold and deep sea-water. The information is relevant not only to the calculation of the risk of pollution, but also to the very practical question of the appropriate response to be made if such a fire should break out.
8.243. The United Kingdom is aware of Ireland’s need for such information. Though it has in the past asserted that Ireland’s assistance would not be needed in the event of an incident on a PNTL ship, BNFL and Irish agencies have participated in an exercise simulating just such an intervention by Ireland. Operation Sea Bird ‘99, held in November 1999, involved the airlifting of an injured crew member from a BNFL ship in the Irish Sea to an Irish hospital. That exercise revealed a number of deficiencies, some of them (now remedied) in Irish procedures, and others arising from a lack of information in Ireland as to the cargo on the ship, and by the status of the ship.
8.244. It also highlighted the importance of the ability of coastal authorities to instruct ships to change speed and course in order to facilitate, in this case, helicopter access to persons on board the ship. The details of the exercise are, however, of less significance than the fact that it was premised upon the participation of Irish authorities in a response to an incident on a BNFL ship off the Irish coast.166
8.245. Nonetheless, far from seeking to coordinate security arrangements with Ireland, the United Kingdom appears to have been progressively reducing the amount of information shared with Ireland.
8.246. The exchanges that will be described in paragraphs 8.246 – 8. 255 are the subject of material set out in the Confidential Annex. The Governments of the United Kingdom, France and Japan have been in the habit of giving Ireland several day’s notice of departures of vessels carrying nuclear materials on voyages that might transit Irish waters. On 16 February 1999, the Irish Government was told of an imminent voyage that “could transit some part of Ireland’s maritime economic zone.” It was stressed, as was the practice, that there was no legal obligation to give this information to the Irish Government, and that the information was conveyed “in the strictest confidence”.
8.247. On 15 July 1999 Ireland was told of another impending voyage, and told also which of the three routes it would follow. It was said by the representatives of France, Japan and the United Kingdom that “[t]he planned route does not involve passage through the territorial waters or the economic zone of any State en route; if such passage were considered necessary the State(s) concerned would be notified in advance.”]
8.248. On 16 December 1999 another meeting was held, with similarly limited information being passed to Ireland. Again it was stated that “[t]he planned route does not involve passage through the territorial waters or the economic zone of any State en route; if such passage were considered necessary the State(s) concerned would be notified in advance.” It was added that “[e]mbassies were not in a position to advise how frequently shipments might take place in the future.”
8.249. By the time of the meeting of 6 December 2000, however, the practice had changed. Ireland was once more informed of an imminent departure, and of the chosen
166 See Confidential Annex, numbers 5 and 6. 193 route; but it was then told that “[t]he planned route does not involve passage through the territorial waters of any State en route. If such passage were considered necessary, the State(s) involved will be notified in advance.”. On this occasion, unlike previous occasions, there was no mention of the notification of coastal States through whose economic zones the shipment might pass.
8.250. Similarly, on 12 January 2001 Ireland was told, without legal obligation and on a strictly confidential basis, of a further imminent shipment and of its intended route. It was again said only that “[t]he planned route does not involve passage through the territorial waters of any State en route. If such passage were considered necessary, the State(s) involved will be notified in advance.” Ireland observed that this was the second shipment within four weeks. It was told that “the upcoming shipment and last month’s shipment should not be interpreted as signifying any trend in frequency.”
8.251. On 28 November 2001, Ireland was informed of another shipment. It was again told that “[t]he planned shipment would not pass through Irish territorial waters but if this was necessary for any reason the Irish Government would be informed in advance.” Again, there was no undertaking to give prior notification of passage through the economic zone. And on this occasion there was no indication, either, of the intended route. Nor was there any indication that Ireland might rely on the general pattern of shipments remaining more or less unchanged. The note of the meeting records that the British representative said that “[h]e could not give an undertaking that the frequency pattern would not change.”
8.252. On 1 July 2002, Ireland was informed of another shipment, of MOX fuel. At that meeting, Ireland made clear that from the point of view of emergency preparedness and planning, it was important for Ireland to have as much information as possible on the shipments: e.g., the date that the shipment will transit the Irish Sea, the security arrangements, and whether increased security measures are in place in light of September 11th. Ireland also recalled a meeting that had been held with the United Kingdom in London on 25 June 2002, at which the Irish authorities had set out their requirements for notification, technical testing and emergency planning details of shipments.
8.253. After taking further instructions, the British representative stated that he could not give any information as to the likely date of arrival of the shipment in the Irish Sea, or the ability of the vessels to withstand a September 11th-type terrorist attack. He added that, for security reasons, he could not divulge any information other than to reiterate that, following September 11th, the UK authorities had carried out a review of security arrangements and were satisfied that the security measures are robust enough to withstand any eventuality.
8.254. No details have been given of the security review, beyond the statement that “[s]ecurity arrangements for the transportation of nuclear materials have been reviewed since the events of September 11th 2001 by all the government regulators concerned and we remain satisfied that the stringent security measures in place are robust and adequate.”
8.255. Ireland has striven to accommodate the interests of the nuclear shipping States. At a meeting on 23 December 1997 it stated that it “favoured voluntary and non-binding arrangements for notifying member states of the passage of vessels carrying nuclear material near their coasts.” Since then, however, it has seen the amount of information given to it by the United Kingdom in relation to nuclear shipments decrease.
8.256. Ireland observes that even when the United Kingdom does pass on information to Ireland, it seems sometimes to be couched in language that is designed more to mould itself around the contours of the United Kingdom’s legal obligations than to communicate 194 facts. The recent exchanges over the shipment of nuclear material currently bound for the Irish Sea is a case in point.
8.257. During the ITLOS hearing and in response to a question as to the extent to which the commissioning of the MOX plant would increase the transport by sea of radioactive materials to and from Sellafield, – counsel for the United Kingdom gave inter alia the following undertaking before the ITLOS: “… [b]efore summer 2002 (at the earliest) there will be no additional marine transports of radioactive material either to or from Sellafield as a result of the commissioning of the MOX plant. I shall revert to that subject in a moment in order to avoid any possibility of misunderstanding over the use of terms.”167
8.258. Counsel for the United Kingdom also addressed the issue of the tainted MOX fuel to be returned from Japan. And stated that the returned fuel would not be returned to the MOX plant but to a storage pool. He went on to state that it was not to be returned till “some time late next year.”168
8.259. The ITLOS placed on record these undertakings regarding marine transports. On 1 February 2002 Ireland asked the United Kingdom to provide, pursuant to the obligation to co-operate, inter alia complete information on all expected shipments of nuclear materials to Sellafield for reprocessing at the THORP plant in order that Ireland might be satisfied that such materials are not to be transformed into MOX fuel.169 The United Kingdom’s response of 6 February 2002 provided no such information. The letter stated merely that: “[f]or obvious security reasons, and in accordance with the terms of the International Convention on the Physical Protection of Nuclear Materials, the [UK] Government does not make public detailed information about the timing of transports of nuclear materials”.170
8.260. In late March 2002, Ireland learned that the shipment of the Japanese MOX fuel that was scheduled to take place in the early summer, before October 2002, the date specified by the United Kingdom to the ITLOS. By its lletter of 27 March 2002, Ireland reminded the United Kingdom of its undertaking before the ITLOS and requested the United Kingdom to confirm that the transportation of the said MOX fuel would not occur before “late” 2002 or October 2002. It also asked the United Kingdom of its plans for the subsequent use of this fuel.171
8.261. The United Kingdom’s reply confirmed that the tainted MOX fuel was to be returned before October 2002. With regard to the use to which the tainted fuel would be put, the letter stated that “On arrival, the [tainted MOX fuel from Japan] will be placed in a storage pond at Sellafield.”172
8.262. By a subsequent letter, Ireland drew the United Kingdom’s attention to certain documents of the relevant US and EURATOM authorities that suggested that before the date of the ITLOS hearing the United Kingdom had been aware that the shipment from
167 See ITLOS, 20 November 2001, 3:00PM, Verbatim Record, P. 21, lines 40 et seq. 168 Ibid, p 26, lines 22 et seq. 169 Vol 3(1), Annex 48. 170 Vol 3(1), Annex 49. 171 Vol 3(1), Annex 59. 172 Vol 3(1), Annex 61 195
Japan was to return to the United Kingdom before October 2002.173 Ireland’s letter also requested a specific assurance that the material would not arrive within British or Irish waters before October 2002.174 On the issue of the subsequent use to which the tainted MOX fuel would be put, Ireland’s letter referred to the same documents, which indicated clearly that the fuel would have to be returned to Japan as fresh MOX fuel. This appeared difficult to reconcile with the information provided by the United Kingdom in the letter dated 19 April 2002,175 and with the United Kingdom’s statements at ITLOS.176
8.263. Ireland’s letter pointed out that the only facility at Sellafield which is operational and capable of transforming the recovered plutonium into “fresh MOX assemblies” to be sent to Japan is the new MOX plant at Sellafield.
8.264. The United Kingdom’s reply did not address a number of the specific issues which Ireland had raised. It did however, confirm that the tainted MOX fuel would arrive in the United Kingdom before October 2002.177
8.265. A second letter of the same date from the United Kingdom related to the subsequent use of the tainted fuel on its return to the United Kingdom from Japan.178 The letter stated that BNFL had still not finalised its precise plans for the management of the fuel. The letter did not address the question of the apparent discrepancies between this statement and the statement made before the ITLOS.
8.266. A third letter from the United Kingdom of the same date stated that the United Kingdom was willing to supply the estimated number of such transports, provided that Ireland undertook to respect the confidentiality of the information. 179 Ireland has given assurances regarding the confidentiality of the information, but these have, it seems, been insufficient to satisfy the United Kingdom. Ireland still has been given no idea of the expected number of shipments.
8.267. Ireland’s need for information about the timing and routing of ships carrying nuclear materials, in order to prepare its own plans to meet the risks inherent in such transports, is a matter of practical necessity. It is also a matter of legal obligation. Ireland has a particular legal responsibility for the waters around its coasts.
8.268. That duty exists as a matter of international law. In the case of the territorial sea, the duty is extensive. As Judge Fitzmaurice observed in his separate opinion in the Fisheries Jurisdiction case: “The territorial sea involves responsibilities as well as rights […] for example policing and maintaining order; buoying and marking channels and reefs, sandbanks and other obstacles; keeping navigable channels clear and giving notice of danger of navigation; providing rescue services, lighthouses, lightships, bell-buoys, etc.” [[1973] ICJ Rep. at 27 n.8. Cf., Judge McNair’s dissenting
173 Vol 3(3), Annex 119. 174 Letter dated 9 May 2002. Annex 62. 175 United Kingdom’s letter dated 19 April 2002 at Annex 61. 176 Mr Plender’s statement to the ITLOS, that the tainted MOX fuel from Japan “will not be returned to the MOX plant but to a storage pool” (Verbatim Record, ITLOS/PV.01/09). 177 United Kingdom’s letter dated 17 May 2002 at Annex 64. 178 United Kingdom’s letter dated 17 May 2002 at Annex 65. 179 United Kingdom’s letter dated 17 May 2002 at Annex 63. 196
opinion in the Anglo-Norwegian Fisheries case: “International law does not say to a State: ‘You are entitled to claim territorial waters if you want them.’ No maritime State can refuse them. International law imposes upon a maritime State certain obligations and confers upon it certain rights arising out of the sovereignty which it exercises over its maritime territory. The possession of this territory is not optional, not dependent upon the will of the State, but compulsory.”180 In order fully to discharge that duty, Ireland needs to know in advance and in sufficient detail of the passage of hazardous cargoes through its waters.
8.269. Beyond its territorial sea, Ireland has legal rights and responsibilities for the marine environment in its 200-mile zone. Ireland has plain responsibilities for the safety of life at sea. If a distress call is received from a ship near the Irish coast, the Irish coastguard cannot simply ignore it. As a party to the International Convention on Maritime Search and Rescue (“SAR”), 1979,181 (to which the United Kingdom is also a party) Ireland has particular responsibilities for search and rescue operations off its coasts. Those responsibilities extend throughout the Irish SAR zone, defined by international agreement, in which operations are controlled by the authorities in Shannon. That zone extends over the western part of the Irish Sea, and out into the Atlantic to the south and west of Ireland. The Irish SAR zone is indicated on Plates 8 and 9.
8.270. Similarly, Ireland has particular responsibilities as a party to the International Convention on Oil Pollution Preparedness, Response and Co-operation, 1990182 (to which the United Kingdom is also a party), the application of which will be extended to other forms of pollution by the Protocol on Preparedness, Response and Co-operation to pollution Incidents by Hazardous and Noxious Substances, 2000 (the “HNS Protocol”). The zone of Irish responsibility, which is defined by international agreement, extends over the western part of the Irish Sea, and out into the Atlantic to the south and west of Ireland. The Irish pollution response zone is shown on Plate 9.
8.271. Ireland also has the primary interest in, and rights and responsibilities regarding, the marine environment in its 200-mile fishery zone. That also extends over the western part of the Irish Sea, and out into the Atlantic to the south and west of Ireland. The Irish 200-mile fishery zone (and other Irish maritime zones) are shown on Plates 9 and 12.
8.272. Ireland’s particular responsibilities for these waters involve it in concrete situations in which lack of co-operation from the United Kingdom may impair Ireland’s ability to discharge its duties. If a distress call is received from a British PNTL ship, or another ship in the vicinity of a PNTL ship, off the Irish coast, Ireland will respond to it. If Irish police agents board such a ship, they need to know, for example, what the shipboard emergency plan for dealing with such incidents is, and what action the British law-enforcement agencies or special forces might be taking or intending to take in respect of the incident. The absurdity of having two sets of armed security forces responding independently to a single incident, perhaps covertly and at night and perhaps many miles from shore, is obvious. This is not simply a question of efficiency: it is a matter of taking proper precautions to safeguard life, and to safeguard the lives of the life-savers themselves.
180 ICJ Rep 1951, 116 at 160. 181 See above, paragraph 8.47. 182 International Convention on Oil Pollution Preparedness, Response and Co-Operation, 1990. 1891 UNTS 51; 30 ILM 733 (1991); 18 Law of the Sea Bulletin 37 (1991). 197
8.273. While Ireland understands and accepts the concern of the United Kingdom to keep information concerning the shipments out of the hands of terrorists and saboteurs, it does not accept that this justifies the United Kingdom in keeping such information from the Irish Government, which shares with the United Kingdom the interest in, and responsibility for, avoiding incidents involving ships carrying nuclear materials in the Irish Sea and in Irish waters beyond the Irish Sea.
8.274. At the time of writing, and despite requests, the United Kingdom has not indicated even the probable approximate numbers of sea transports to and from the Sellafield site. Ireland does not know whether those shipments might be of the order of one a year, one a month, or one a week. Nor does it know what the projected dates of the anticipated shipments might be, or what emergency plans have already been made in respect of them by the United Kingdom, or BNFL or any other agencies. Ireland obtains more information from the daily newspapers, and from NGO websites, than it is able to obtain from the United Kingdom. Little or no progress has been made concerning fuller co-operation, such as would enable Ireland to make contingency plans for any incidents in Irish waters involving ships carrying nuclear materials. The United Kingdom’s position appears to be that this is not a question that need concern Ireland at all. That is not a satisfactory fulfilment of a duty to co-operate.
E. THE UNITED KINGDOM’S DETERMINATIONS ARE REVIEWABLE
8.275. Ireland is fully aware that the United Kingdom believes that the Sellafield facility is, in general, operated within IAEA standards, and that the PNTL ships are also built and equipped so as to comply with IAEA standards and with the IMO’s INF Code.
8.276. Ireland is also fully aware that those international standards represent the majority view as to the proper balance between safety and other factors, at the time that the standards were adopted.
8.277. Ireland’s case is not that the United Kingdom was in breach of these international standards at the time that they were adopted. Ireland’s case in this respect rests on two points.
8.278. First, those standards have evolved and continue to evolve, and the United Kingdom’s practice must both (i) evolve in order to meet the changing standards as they arise, and (ii) not put the United Kingdom in a situation where it is impossible for it to meet future standards whose development may be reasonably foreseen.
8.279. Second, Ireland considers compliance with the international standards does not in any event relieve the United Kingdom of its obligations of co-operation and co-ordination with Ireland. Nor does it relieve the United Kingdom of its obligations under the UNCLOS, to the extent that those obligations are confined to the narrow duty to comply with international standards.
8.280. Moreover, whether or not the United Kingdom acts in conformity with the international standards, Ireland has the right and the responsibility to consider on the basis of accurate and detailed information and to decide for itself the nature and extent of the risk to Irish waters and their users and to Ireland itself, presented by the operation of the Sellafield site and the associated shipments. 198
8.281. The United Kingdom’s determination that it has fulfilled all of its obligations cannot be conclusive. In the absence of express treaty language to the contrary, no State can be the sole judge of its compliance with its international obligations. This applies in relation to the obligations of environmental impact assessment and pollution prevention, as well as co-operation.
8.282. In this respect, the drawing up of emergency plans by the United Kingdom, and the co-operation and co-ordination of its activities with Ireland, is similar to the act of delimiting maritime boundaries by the drawing of baselines, of which the International Court said, in the Anglo-Norwegian Fisheries case, “Although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law.”183
8.283. It is not for the United Kingdom to decide unilaterally whether or not it has done enough to discharge its responsibilities. That is an elementary proposition of international (as of municipal) law.
8.284. The reasons for Ireland’s reluctance to depend upon British assurances that all is in order will have emerged from the detailed account of events set out in this Memorial. It can be illustrated by one further example. The United Kingdom’s 1999 national report to OSPAR contains the following paragraphs: “6.1 Since the introduction of general legislation to regulate the use of radioactive substances (the Radioactive Substances Act 1960), the UK has consistently applied … radiological protection principles and regulatory arrangements … in order to reduce the levels of radioactive discharges and the doses of ionising radiation to both humans and the wider environment. Levels of radionuclides in the environment have been carefully monitored to ensure they remain within safe levels. 6.2 At no time has there been a significant risk that either humans or the wider environment would suffer harm from authorised UK radioactive discharges or emissions.”184
8.285. It is instructive to compare that report with two other documents. In 1987 a distinguished British Study group published a report on the waters around the British Isles. It contained the following passages relating to the Windscale site, later renamed the Sellafield site, and its effects on the Irish Sea during the period to which the passage from the United Kingdom’s 1999 OSPAR Report relates: “As a result of the discharges from Windscale, levels of caesium-137 in the Irish Sea are now around 50 times those found in the Atlantic to the west of Ireland; and near the outfall they are several hundred times as high. Other radioisotopes discharged include caesium-135, ruthenium-106, zirconium-95, strontium-90, cerium-134 and niobium-95. The discharges mix with seawater and are transported through the Irish Sea in a westerly and northerly direction […] Other nuclides discharged from Windscale are retained in the top few centimetres of sea-bed sediments within a few miles of the point of discharge. These include
183 ICJ Reports 1951, 116. at 132. 184 Report by the United Kingdom on intentions for action at the national level to implement the OSPAR strategy with regard to radioactive substances, paragraphs 6.1, 6.2, OSPAR 00/6/Info.1-E. 199
plutonium-241 and its decay products americium-241 and neptunium-237, which are among the most biologically hazardous of materials. Over the past decade increasingly large and uncontrolled (i.e. not subject to authorization) discharges of plutonium-241 have taken place, and it has been estimated that a total of 381,527 curies had been discharged into the Irish Sea by the end of 1980. This represents around a quarter of a tonne of material which will continue to be radioactive for a very long time. This cumulative amount represents an extremely serious yet relatively unknown problem, for there is very little information about the specific effects of these radionuclides.”185 That picture is, as is shown in chapters and 9, fully in accord with the scientific information available to Ireland.
8.286. Secondly, at a meeting of the Contact Group held at around the same time that the United Kingdom national report to OSPAR quoted above was prepared, Ireland raised the issue of reports that more than one-third – 35% – of all of the plutonium / americium discharged by the United Kingdom into the Irish Sea was unaccounted for.186 The minutes record that Ireland asked the United Kingdom “if any work was planned to try to account for the missing 35%”. The United Kingdom replied “that there wasn’t but there may be a workshop. The important point was that levels in the environment and human food chain were very low and gave no cause for concern.”187
F. CONCLUSIONS
8.287. The United Kingdom has violated Article 193 and 197 of UNCLOS. The United Kingdom has failed to fulfil the duty of co-operation imposed by UNCLOS. It has failed to provide Ireland with adequate information of the environmental consequences arising from the MOX project. It has failed to engage properly inconsultations with Ireland, and to take into account Ireland’s rights and interests, when deciding whether and how to proceed with the implementation of the MOX project; and it has not co-operated with Ireland in the development of strategies for coping with the pollution and the risk of pollution arising from the MOX project. As is explained in chapter 10 below, Ireland does not consider it helpful in the context of these proceedings to try to fix the precise boundaries of what should be a developing relationship of co-operation. It is nonetheless evident that in order to bring itself into compliance with its UNCLOS obligations, the United Kingdom needs to repair the past omissions (which are described in more detail in chapters 7 and 9) and to co-operate with Ireland, in particular by providing more information to Ireland (on a timely and complete basis) and developing effective mechanisms for the transmission of information and for practical co-operation between the relevant authorities of the two States in regard to these matters, which takes due account of Ireland’s legitimate interests.
185 R. B. Clark (ed), The Waters Around the British Isles, (OUP, 1987), p 238. 186 Cf., Professor Brit Salbu, vol 2, Appendix 2. 187 Confidential Annex: Contact Group Meeting 11 June 1999, Minute 9. 200 201
CHAPTER 9
PREVENTION OF POLLUTION
INTRODUCTION
9.1. The authorisation of the MOX plant will result in the discharge of radioactive substances directly into the Irish Sea, both from the MOX plant and from the increased and prolonged operation of the THORP plant. Radioactive substances will also reach the Irish Sea indirectly, through discharges of radioactive wastes into the atmosphere arising from the MOX and THORP plants. Further, the authorisation and operation of the MOX plant will lead to a greater risk of unintended discharges of radioactive substances as result of accidents or terrorist incident, as a result of increased international transports of radioactive materials through the Irish Sea, and the intensification of activity at the Sellafield site giving rise to solid wastes which will be stored at Sellafield. None of these points is in dispute. Where the parties disagree is on the compatibility of these consequences of the authorisation and operation of the MOX plant with the United Kingdom’s obligations under the UNCLOS. Ireland submits that by permitting these consequences the United Kingdom is violating its obligations under the UNCLOS to prevent pollution of the Irish Sea.
9.2. Specifically, Ireland submits that the United Kingdom has failed to take all measures consistent with UNCLOS that are necessary to prevent, reduce and control pollution of the Irish Sea which results from discharges of radioactive substances arising from the authorisation and operation of the MOX plant. These violations arise because the United Kingdom has: 1. failed to “take all measures consistent with the 1982 Convention that are necessary” to prevent, reduce and control pollution of the Irish Sea (paras. 9.92-9.100); 2. failed to take “all measures necessary” to ensure that the MOX plant does not cause damage by pollution to Ireland and its environment (paras. 9.101-9.104); 3. failed to take “all measures necessary” to ensure that pollution from the MOX plant “does not spread beyond the areas” where it exercises sovereign rights (paras. 9.105-9.111); 4. failed to take measures designed to minimize “to the fullest extent possible” the release of radioactive substances arising from the authorisation of the MOX plant (paras. 9.112-9.126); 5. failed to implement applicable international rules and standards to prevent, reduce and control pollution of the Irish Sea arising from the authorisation of the MOX plant (paras. 9.127-9.145); 6. failed to take “all measures necessary” to “minimize to the fullest possible extent” pollution from vessels involved in transports of radioactive substances associated with the MOX plant (paras. 9.146- 9.152); 202
7. failed to ensure compliance by vessels flying its flag or of its registry with applicable international rules and standards, and has failed to ensure that vessels associated with MOX transports are prohibited from sailing when not in compliance with those rules and standards (para. 9.153- 9.156); 8. failed to take measures “designed to minimize to the fullest possible extent” the release into the atmosphere of radioactive substances arising from the authorisation of the MOX plant (paras. 9.157-9.166); and 9. failed to adopt laws and regulations and take other measures necessary “to implement applicable international rules and standards” to prevent, reduce and control pollution of the Irish Sea from or through the atmosphere (para. 9.167-9.169).
9.3. This Chapter describes the manner in which these UNCLOS violations have occurred. Section A describes in overview the relevant provisions of Part XII of UNCLOS which establish obligations for the United Kingdom to prevent pollution of the Irish Sea. Section B then moves on to identify the rules of international law arising outside UNCLOS which are aimed at preventing and eliminating radioactive pollution from the marine environment, and which inform the content of the United Kingdom’s obligations under the 1982 Convention. Section C explains the basis upon which Ireland considers that the radioactive discharges and releases constitute both “pollution” and “harmful” and “persistent” substances within the meaning of the 1982 Convention. Section D explains the way in which the authorisation and operation of the MOX plant has given rise to violations by the United Kingdom of specific provisions of UNCLOS. Section E provides a summary and conclusions.
9.4. In considering the consequences of the new planned discharges that will arise as a result of the authorisation of the MOX plant, it is important to recall that the Irish Sea is already amongst the most highly radioactive seas in the world, largely as a result of having been exposed to radioactive contamination arising from the activities which have taken place at the Sellafield site since the 1940’s.1 The relatively high level of contamination explains Ireland’s particular concerns. In this regard Ireland notes that UNCLOS was adopted by the international community in large part to avoid pollution consequences of this kind – and to ensure their remediation.
1 Chapter 1, paras 1.19-38. 203
A: THE UNCLOS OBLIGATIONS TO PREVENT RADIOACTIVE POLLUTION OF THE IRISH SEA
INTRODUCTION: THE GENERAL OBLIGATIONS
9.5. Part XII of UNCLOS establishes a “comprehensive environmental framework […] relating to all sources of pollution in all marine areas”.2 Part XII provides “a legal basis for coordination of rules and standards with appropriate enforcement measures and sets forth the obligations of states to adopt laws and regulations to prevent, reduce, and control pollution of the marine environment that are no less effective than international rules and standards or conforming to and at least having the same effect as that of generally accepted international rules and standards.”3
In his transmittal letter of UNCLOS to the United States Senate, the President of the United States described the Convention as “the strongest comprehensive environmental treaty now in existence or likely to emerge for quite some time”.4 The commentary accompanying the President’s transmittal letter concludes that Part XII of UNCLOS “creates a positive and unprecedented framework for marine environmental protection and will encourage all parties to take their environmental obligations seriously”.5
9.6. Part XII of UNCLOS is entitled the “Protection and Preservation of the Marine Environment”. It is divided into 11 Sections. For the purposes of the present Chapter the relevant Sections are Section 1 (General Provisions) and Section 5 (International Rules and National Legislation to Prevent, Reduce and Control Pollution of the Marine Environment). The requirements of Section 2 (Global and regional Co-operation) are addressed in Chapter 8, and the requirements of Section 4 (Monitoring and Environmental assessment) are addressed in Chapter 7.
9.7. Section 1 of Part XII of UNCLOS sets forth the general obligations of the United Kingdom to prevent, reduce and control pollution of the Irish Sea. Article 192 provides: “States have the obligation to protect and preserve the marine environment”.
Article 192 sets forth a general principle and has been described as an “essential component of the comprehensive approach in Part XII” which “announces the broad obligation to protect and preserve the marine environment”.6 It contains the first explicit statement, in a global treaty, of the general obligation to protect and preserve the marine environment.7 The Virginia Commentary notes the extent of the positive obligations which Article 192 imposes upon States:
2 A. Yankov, The Law of the Sea Convention and Agenda 21: Marine Environmental implications”, in A. Boyle and D. Freestone (eds), International Law and Sustainable Development: Past Achievement and Future Challenges (1999), 271 at 276. 3 Ibid. 4 34 ILM 1397 (1995). 5 Ibid, 1414. 6 Virginia Commentary, Part XII, p 36 (para 192.2) (1993). 7 Ibid. 204
“The thrust of Article 192 is not limited to the prevention of prospective damage to the marine environment but extends to the “preservation of the marine environment”. Preservation would seem to require active measures to maintain, or improve, the present condition of the marine environment.”8
The “active measures” required by Article 192 are reflected throughout Part XII of the 1982 Convention, although the precise extent of any obligation to prevent pollution is necessarily informed by the existing state of the marine environment. In the present case, involving the protection of the Irish Sea which is already amongst the most radioactively polluted seas in the world,9 the significance of the obligation to prevent further pollution – and to remediate the consequences of past pollution – becomes all the more pressing.
9.8. Article 193 of the UNCLOS provides: “States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment.”
A leading treatise has described the significance of Article 193 in this way: the provision constitutes “a transformation of [1972 Stockholm Declaration] principles into the language of a binding treaty”.10 The approach reflected in Article 193 has been recognised by the International Court of Justice as reflecting a rule of customary international law.11 Article 193 – and now general international law – recognise that the notion that a State has absolute sovereignty over the use of its territory is limited.
9.9. As the International Law Commission’s Articles on the Prevention of Transboundary Harm (2001) put it: “The freedom of States to carry on or permit activities in their territory or otherwise under their jurisdiction or control is not unlimited.”12
The exercise of sovereignty – the authorisation of a nuclear facility such as the MOX plant – is tempered by the duty of the authorising state “to protect and preserve the marine environment”. The precise legal requirements of that duty (obligation in the French text, obligaciòn in the Spanish text) are, as with Article 192, informed by the state of the marine environment in question.
9.10. Articles 192 and 193 are supplemented by the more detailed requirements of the general obligations of Article 194 of UNCLOS. These provisions are applicable to all marine areas but assume particular importance for a semi-enclosed sea like the Irish Sea.
8 Ibid, para 192.9. 9 Chapter 1, paras 1.19 et seq. 10 Oppenheim’s International Law (Sir R. Jennings and Sir A. Watts (eds), 9th edition, p 820. Principle 21 of the Stockholm Declaration states: “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” 11 ICJ, Advisory Opinion on the Legality of the Use of Nuclear Weapons, 1996 ICJ Reports, p 226 at 241-2 (para 29). 12 Vol 3(1), Annex 73. 205
9.11. UNCLOS Article 194 (“Measures to prevent, reduce and control pollution of the marine environment”) sets forth a number of obligations of general application. It provides inter alia that: “1. States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection. 2. States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention. 3. The measures taken pursuant to this Part shall deal with all sources of pollution of the marine environment. These measures shall include, inter alia, those designed to minimize to the fullest possible extent: (a) the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping; (b) pollution from vessels, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges, and regulating the design, construction, equipment, operation and manning of vessels; […]”
9.12. Article 194 provides a link between the general provisions of Articles 192 and 193 and the detailed requirements set forth in Section 5 of Part XII. As the Virginia Commentary recognises, the scope of the provision set forth in Article 194(1) (“all measures … that are necessary to prevent, reduce and control pollution of the marine environment from any source”) is wide.13 In relation to “toxic, harmful or noxious substances” (which are not defined by the 1982 Convention – see further below at paras. 9.59 et seq. – but which plainly include radioactive substances) the obligation to prevent pollution is even more stringent.
9.13. Article 194 sets forth a number of distinct obligations for the United Kingdom in respect of the MOX plant and its associated consequences: First, it requires the United Kingdom to use “best practicable means at its disposal” to prevent, reduce and control pollution of the Irish Sea from the MOX plant (Art. 194(1)); Second, it requires the United Kingdom to take “all measures necessary” to ensure that the MOX plant does “not … cause damage by pollution” to Ireland and its environment (Art. 194(2)); and Third, it requires the United Kingdom to take “all measures necessary” to ensure that pollution from the MOX plant “does not spread beyond the areas where [it] exercises sovereign rights (Art. 194(2)).
13 Virginia Commentary, Part XII, page 64 (para 194.10(b)). 206
The United Kingdom’s failure to comply with these obligations is addressed in detail in Section D below.
THE SPECIFIC OBLIGATIONS TO PREVENT POLLUTION FROM LAND-BASED SOURCES
9.14. UNCLOS Articles 207 and 213 address pollution from land-based sources, and are directly relevant to the authorisation of the MOX plant. Article 207 (“Pollution from land- based sources”) provides in relevant part: “1. States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources, including rivers, estuaries, pipelines and outfall structures, taking into account internationally agreed rules, standards and recommended practices and procedures. 2. States shall take other measures as may be necessary to prevent, reduce and control such pollution. 3. States shall endeavour to harmonize their policies in this connection at the appropriate regional level. 4. States, acting especially through competent international organizations or diplomatic conferences, shall endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment from land-based sources, taking into account characteristic regional features, the economic capacity of developing States and their need for economic development. Such rules, standards and recommended practices and procedures shall be re-examined from time to time as necessary. 5. Laws, regulations, measures, rules, standards and recommended practices and procedures referred to in paragraphs 1, 2 and 4 shall include those designed to minimize, to the fullest extent possible, the release of toxic, harmful or noxious substances, especially those which are persistent, into the marine environment.”
UNCLOS Article 213 provides: “States shall enforce their laws and regulations adopted in accordance with article 207 and shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution of the marine environment from land-based sources.”
9.15. UNCLOS Article 207 “restates and amplifies” the obligation enunciated in Article 194(3)(a).14 It, together with Article 213, sets forth a number of distinct obligations for the United Kingdom in respect of the MOX plant and its associated consequences. These include: First, Article 207(1) and (2) require the United Kingdom to adopt laws and regulations and take other measures “as may be necessary” to prevent, reduce and control pollution of the Irish Sea as a result of the authorisation of the
14 Ibid, Part XII, page 132, para 207.7(a). 207
MOX plant, such laws and regulations “taking into account internationally agreed rules, standards and recommended practices and procedures”; Second, Article 207(5) (together with Article 194(3)(a)) requires the United Kingdom to ensure that such laws, regulations and measures include “those designed to minimize, to the fullest extent possible” the release of radioactive substances into the Irish Sea; Third, Article 213 requires the United Kingdom “to implement applicable international rules and standards” to prevent, reduce and control pollution of the Irish Sea.
It is to be noted that these provisions set three distinct standards, each of which is to applied by the United Kingdom: (a) a standard of necessity to prevent, control and reduce pollution (having regard to the needs of the receiving environment); (2) a standard requiring minimisation of releases to the fullest extent possible (having regard to available technologies and practices); and (3) a standard requiring implementation of international rules and standards (having regard to international norms). In meeting its obligations the United Kingdom is thereby required to have regard to the quality of the Irish Sea, to all available technologies and practices, and to applicable and relevant international norms. As will be shown below, in relation to the MOX plant the United Kingdom does not appear to have had regard to any of these requirements.15
9.16. The content of the three distinct obligations arising under Article 207 and 213 are informed by international rules and standards, as well as recommended practices and procedures. In this case those rules, standards and recommended practices and procedures are informed by the requirements of the 1992 OSPAR Convention and the 1998 Sintra Ministerial Declaration, as described further below at paragraphs 9.43-9.52.
THE OBLIGATION TO PREVENT POLLUTION FROM VESSELS
9.17. The relevant rules governing pollution from vessels are set forth in Article 211 (“Pollution from vessels”) and Article 217 (“Enforcement by flag States”) of UNCLOS. Article 211 provides in relevant part: “1. States, acting through the competent international organization or general diplomatic conference, shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels and promote the adoption, in the same manner, wherever appropriate, of routeing systems designed to minimize the threat of accidents which might cause pollution of the marine environment, including the coastline, and pollution damage to the related interests of coastal States. Such rules and standards shall, in the same manner, be re-examined from time to time as necessary. 2. States shall adopt laws and regulations for the prevention, reduction and control of pollution of the marine environment from vessels flying their flag or of their registry. Such laws and regulations shall at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference. […] 7. The international rules and standards referred to in this article should include inter alia those relating to prompt notification to coastal States, whose coastline or
15 See Section D below, paras 9.92-9.169. 208
related interests may be affected by incidents, including maritime casualties, which involve discharges or probability of discharges.”
Article 217 provides in relevant part: “1. States shall ensure compliance by vessels flying their flag or of their registry with applicable international rules and standards, established through the competent international organization or general diplomatic conference, and with their laws and regulations adopted in accordance with this Convention for the prevention, reduction and control of pollution of the marine environment from vessels and shall accordingly adopt laws and regulations and take other measures necessary for their implementation. Flag States shall provide for the effective enforcement of such rules, standards, laws and regulations, irrespective of where a violation occurs. 2. States shall, in particular, take appropriate measures in order to ensure that vessels flying their flag or of their registry are prohibited from sailing, until they can proceed to sea in compliance with the requirements of the international rules and standards referred to in paragraph 1, including requirements in respect of design, construction, equipment and manning of vessels.”
9.18. Article 211 and 217 of UNCLOS, together with Article 194(2) and (3)(b), set forth specific obligations for the United Kingdom in respect of international transports of radioactive materials in and around the Irish Sea – both to and from the Sellafield plant – which are associated with the authorisation of the MOX plant ( including transports to the THORP plant of nuclear materials to be reprocessed into “feedstock” for the MOX plant). First, Article 194(2) and (3)(b) require the United Kingdom to take all measures necessary to minimize to the fullest possible extent pollution from vessels, including in particular measures for preventing accidents and dealing with emergencies, preventing unintentional discharges, and regulating the design, construction, equipment, operation and manning of vessels; Second, Article 211(2) and (7) require the United Kingdom to adopt laws and regulations for the “prevention, reduction and control of pollution” of the Irish Sea from vessels flying their flag or their registry, which “shall at least have the same effect as that of “generally accepted international rules and standards”, including in relation to prompt notification of Ireland; Third, Article 217(1) requires the United Kingdom to ensure compliance by vessels flying its flag or of its registry with applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment; Fourth, Article 217(2) requires the United Kingdom to take appropriate measures to ensure that vessels flying its flag or of its registry are prohibited from sailing unless they are in compliance the requirements of these international rules and standards.
THE OBLIGATION TO PREVENT POLLUTION THROUGH THE ATMOSPHERE
9.19. Pollution from or through the atmosphere is governed by Article 212 (“Pollution from or through the atmosphere”) and Article 222 (“Enforcement with respect to pollution from or through the atmosphere”) of UNCLOS. Article 212 provides in relevant part: 209
“1. States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere, applicable to the air space under their sovereignty and to vessels flying their flag or vessels or aircraft of their registry, taking into account internationally agreed rules, standards and recommended practices and procedures and the safety of air navigation. 2. States shall take other measures as may be necessary to prevent, reduce and control such pollution.”
Article 222 provides in relevant part: “States shall enforce, within the air space under their sovereignty or with regard to vessels flying their flag or vessels or aircraft of their registry, their laws and regulations adopted in accordance with article 212, paragraph 1, and with other provisions of this Convention and shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution of the marine environment from or through the atmosphere, in conformity with all relevant international rules and standards concerning the safety of air navigation.”
9.20. Article 212 also “restates and amplifies” the obligation enunciated in Article 194(3)(a).16 It, together with Article 222, sets forth inter alia three distinct obligations for the United Kingdom in respect of the MOX plant and its associated consequences. These are: First, Article 212(1) requires the United Kingdom to adopt laws and regulations “as may be necessary” to prevent, reduce and control pollution of the Irish Sea from or through the atmosphere, such laws and regulations “taking into account internationally agreed rules, standards and recommended practices and procedures”; Second, Article 212(2) requires the United Kingdom to take other measures “as may be necessary” to prevent, reduce and control pollution of the Irish Sea from or through the atmosphere; Third, Article 222 requires the United Kingdom to adopt laws and regulations and to take other measures necessary “to implement applicable international rules and standards” to prevent, reduce and control pollution of the Irish Sea from or through the atmosphere.
9.21. Part XII of UNCLOS may therefore be seen to impose a number of distinct obligations on the United Kingdom. Each stands alone, and each is addressed in further detail in Section D below (paras. 9.92-9.169). To understand the extent of each obligation, it is necessary to have regard to obligations arising outside UNCLOS.
16 Virginia Commentary, Part XII, page 132, para 207.7(a). 210
B: INTERNATIONAL LAW AND THE PREVENTION OF RADIOACTIVE POLLUTION OF THE MARINE ENVIRONMENT
9.22. As will be clear from Section A of this Chapter, the precise content of many of the obligations imposed by the UNCLOS is to a significant extent informed by the international rules and standards, and recommended practices and procedures which arise outside the UNCLOS. This is reflected in general terms in the Convention’s direction (in Article 293) that the Annex VII Tribunal “shall apply [UNCLOS] and other rules of international law not incompatible with [the] Convention”. This requirement is elaborated in Chapter 6 of this Memorial.
9.23. Various provisions of Part XII of the UNCLOS draw connections between the obligations under the Convention and these other relevant rules and standards, and recommended practices and procedures.
9.24. In relation to pollution from land-based sources Article 207 requires States to “take into account” internationally agreed rules, standards and recommended practices and procedures, and Article 213 requires States to “implement” internationally applicable rules and standards.
9.25. In relation to pollution through the atmosphere, Article 212 requires States to “take into account” internationally agreed rules, standards and recommended practices and procedures, and Article 222 requires States to “implement” internationally applicable rules and standards.
9.26. In relation to pollution from vessels, Article 211 requires States to adopt laws and regulations which are to have “at least the same effect as that of generally accepted international rules and standards”, and Article 217 requires States to “ensure compliance by vessels flying their flag or of their registry with applicable international rules and standards”.
9.27. In assessing the content of these and other obligations under Part XII of UNCLOS, regard must therefore be had to other rules and standards of international law, as well as to internationally recommended practices and procedures. This section of Chapter 9 identifies those international rules, standards, practices and procedures which contribute to a determination of the legality of the United Kingdom’s authorisation and operation of the MOX plant. It first summaries the general background (I) and then considers specific legal instruments (II).
9.28. Even though UNCLOS was the first global treaty to codify the international rules for the protection of the marine environment, it is plain that it did so on the basis of certain very well-established and generally accepted international principles. These include principles relating to pollution of the marine environment by radioactive substances. As will be clear, both Ireland and the United Kingdom have contributed their support to the development of these international rules.
GENERAL BACKGROUND
9.29. International law has long recognised that radioactive pollution is amongst the most serious threats to human health and the environment, and that States are under a stringent obligation to prevent such pollution. As early as 1955, by its resolution 913(X), the UN General Assembly established the United Nations Scientific Committee on the 211
Effects of Atomic Radiation (UNSCEAR). The first preambular paragraph to that resolution has informed the subsequent work of the Committee. It emphasises the recognition by all members of the United Nations of “the importance of, and the widespread attention being given to, problems relating to the effects of ionizing radiation upon man and his environment”.
The resolution is significant in a number of respects, including its recognition that the impacts of radiation are to be assessed not only by reference to impacts on human health but also on the natural environment. These are quite distinct issues. In this way resolution 913(X) reflects the approach subsequently taken by UNCLOS and its definition of “pollution”, which encompasses consequences on the environment independently of effects on human health.
9.30. Three years later, in 1958, the Geneva Convention on the High Seas committed every State “to take measures to prevent pollution of the seas from the dumping of radio- active waste” and to co-operate with the competent international organizations in taking measures for the prevention of pollution of the seas or air space above, resulting from any activities with radio-active materials”.17 This followed shortly after the nuclear accident at Sellafield (which was known as Windscale at the time)18 and which released large quantities of radiation into the atmosphere and the marine environment, significant proportions of which reached the territory of Ireland .
9.31. In 1963 the United Nations adopted its Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water. The Treaty expressed the parties’ desire “to put an end to the contamination of man’s environment by radioactive substances” (Preamble).
It is noteworthy that the commitments in the Treaty are not limited to contamination by nuclear testing alone. By the 1963 Treaty each party undertook to prohibit and prevent the carrying out of any nuclear weapon test explosion or any other nuclear explosion at any place under its jurisdiction or control “if such explosion causes radioactive debris to be present outside the territorial limits of the State under whose jurisdiction or control such explosion is conducted” (Art. I(1)).
9.32. The prohibition is absolute, premised on the belief that any transboundary movement of radioactive debris in any quantities is considered to be unacceptable. There is here no de minimis standard.
9.33. The extent of that commitment was underscored by UN General Assembly resolution 3154(XXVIII), adopted in 1973. It requested UNSCEAR to continue its work to increase knowledge of the levels and effects of atomic radiation from all sources, and emphasizes that each member of the United Nations “Deplores environmental pollution by ionizing radiation from the testing of nuclear weapons”.
At around the same time, in 1972 the United Nations Conference on the Human Environment (Stockholm Conference) adopted its Declaration, including Recommendation 86(f), which called for a strengthening of national controls over land-based sources of
17 450 UNTS 82, Article 25(1) and (2). 18 Chapter 1, paras 1.40-42. 212 marine pollution, in particular in enclosed and semi-enclosed seas. It expressly recognised that in some circumstances “the discharge of residual heat from nuclear and other power- stations may constitute a potential hazard to marine ecosystems.”
9.34. The 1986 accident at the Chernobyl nuclear power plant resulted in the release of radioactive materials across Europe. The accident underscored the fact that radioactive pollution does not respect national boundaries. It also made clear the steps that States considered to be necessary following such releases: following the accident the United Kingdom took steps to restrict farming activities in Cumbria and Northern Ireland.19 Some of those restrictions remained in place for many years after the accident. And the former USSR never paid compensation to any affected States, emphasizing the importance of preventing such pollution rather than cleaning it up.
9.35. The Chernobyl accident catalysed new international efforts to take steps to prevent radioactive pollution. The commitment of States to eliminate the threat of radioactive contamination was an important aspect of the 1992 UN Conference on Environment and Development. At UNCED, 176 States (including Ireland and the United Kingdom) adopted Agenda 21 without dissent. Its Chapter 22 is entitled “Safe and Environmentally Sound Management of Radioactive Waste”. It affirms the need for “very stringent radiological protection measures”20 and, recognising the potentially devastating impact of radioactive pollution on the marine environment requires States not to “promote or allow the storage or disposal of high-level, intermediate level and low-level radioactive wastes near the marine environment unless they determine that scientific evidence … shows that such storage or disposal poses no unacceptable risk to people and the marine environment or does not interfere with other legitimate uses of the sea, making, in the process of consideration, appropriate use of the concept of the precautionary approach.”21
This prohibition applies to all types of radioactive wastes. It establishes a powerful presumption against the authorisation of new nuclear activities – including the production of MOX fuel – in coastal areas. The provision adds flesh to the content of Articles 194 and 207 of UNCLOS. It has been taken into consideration by the United Kingdom authorities in reaching the decision to refuse authorisation of permission to construct and operate a Rock Characterisation Facility for the storage of high-level radioactive waste next to the Irish Sea at Sellafield.22That view was endorsed by the United Kingdom Secretary of State for the Environment in upholding the recommendation of the Planning Inspector.23
9.36. The United Nations’ 1995 Global Plan of Action for the Protection of the Marine Environment from Land-Based Activities addresses radioactive substances that “have entered and/or are entering the marine and coastal environment, directly or indirectly, as a result of a variety of human activities and practices”, including reprocessing of spent fuel and operations associated with the management and disposal of radioactive wastes.24 The Global Plan of action expressly recognises that
19 See P. Sands, Chernobyl: Law and Communication (1987), pp 17-18. 20 Vol 3(2), Annex 82, Chapter 22, para 22.2. 21 Ibid, para 22.5(c). 22 See Sheate Report, vol 2, Appendix 6, pp 210-11 (paras 4.2-4.9). 23 Vol 3(3), Annex 118. 24 Vol 3(2), Annex 83, para 107. 213
“Other activities, such as the transport of radioactive material, pose risks of such releases.”25
9.37. The Global Programme of Action is important because it recognises that “[r]adioactive materials can present hazards to human health and to the environment”. But it is also important because it recognises that with respect to radiation it is not only actual radiation but also perceptions which are important: “[s]uspected radioactive contamination of foodstuffs can also have negative effects on marketing of such foodstuffs.”26
9.38. That means economic injury must also be taken into account among the effects of radioactive pollution. With those consequences in mind the Global Programme of Action commits States to the following objective and proposed target: “to reduce and/or eliminate emissions and discharges of radioactive substances in order to prevent, reduce and eliminate pollution of the marine and coastal environment by human-enhanced levels of radioactive substances.”
It is to be noted that the objective includes the total elimination of radioactive pollution from these sources.
9.39. To this end the Global Programme of Action commits States to take a number of actions at the national level, including: • setting “targets and timetables to minimize and limit the generation of radioactive wastes and provide for their safe processing, storage, conditioning, transportation and disposal”; • ensuring “the safe storage, transportation and disposal of radioactive wastes, as well as spent radiation sources and spent fuel from nuclear reactors destined for final disposal, in accordance with international regulations or guidelines”; • ensuring “proper planning, including environmental impact assessment, of safe and environmentally sound management of radioactive waste, including emergency procedures, storage, transportation and disposal, prior to and after activities that generate such waste”; • using “best available techniques and best environmental practice, for the reduction and/or elimination of inputs of radioactive substances to the marine and coastal environment for the purpose of preventing and eliminating pollution of the marine and coastal environment”.27
The Global Programme of Action also reaffirms the obligation set out in paragraph 22.5(c) of Agenda 21 not to promote or allow the storage or disposal of radioactive wastes near the marine and coastal environment.28
9.40. As described below, these general obligations have not been taken into account by the United Kingdom in the authorisation of the MOX plant.
25 Ibid. 26 Ibid, para 108. 27 Ibid, para 110. 28 Ibid, para 111. 214
SPECIFIC LEGAL INSTRUMENTS AND OBLIGATIONS IMPOSING RULES AND STANDARDS AND RECOMMENDING PRACTICES AND PROCEDURES
9.41. Against this sustained expression of international concern about the impacts on human health and the environment of radioactive pollution of the marine environment, States have adopted specific treaty obligations – at the global and regional levels – to limit or prohibit altogether actions which might lead to the introduction of radioactive substances into the marine environment.
9.42. The dumping of any radioactive substances into the marine environment, in any quantities and however miniscule or negligible in their effects – has been the subject of global ban for more than 15 years. In 1985 the parties to the 1972 London Dumping Convention adopted a resolution (LDC 21(9)) establishing an indefinite moratorium on the dumping of radioactive wastes at sea. In 1993 the Parties agreed to amend the Annexes I and II to the 1972 London Convention to ban the dumping of all radioactive wastes, and this legally binding prohibition entered into force on 20 February 1994.29 The prohibition on the dumping of any radioactive wastes into the marine environment is also reflected in 1992 OSPAR Convention, Article 3(3) of Annex II of which expressly prohibits dumping of all radioactive substances.30
9.43. The 1992 OSPAR Convention regulates the discharge of radioactive substances into the marine environment from land-based sources, including the MOX plant. The Preamble to the OSPAR Convention expressly refers to Part XII of UNCLOS, indicating the close relationship between the two treaties (“Recalling the relevant provisions of customary international law reflected in Part XII of UNCLOS and, in particular, Article 197 on global and regional co-operation for the protection and preservation of the marine environment.”).
9.44. Article 2(1)(a) of the 1992 OSPAR Convention commits parties to “take all possible steps to prevent and eliminate pollution” and to “restore marine areas which have been adversely affected”. To that end parties are to apply the precautionary principle (Art. 2(2)) and apply “best available techniques” and “best environmental practices”, in accordance with the criteria set forth in Appendix 1 of the Convention. Article 3 of the Convention commits parties to “take, individually and jointly, all possible steps to prevent and eliminate pollution from land-based sources in accordance with the provisions of the Convention”, as provided by Annex I.
9.45. Annex I commits parties to: • Use best available techniques and best environmental practices, including clean technology where appropriate; • Take preventive measures to minimise the risk of pollution caused by accidents.
29 Resolution LDC 51(16) Concerning Disposal at Sea of Radioactive Wastes and Other Radioactive Matter. The resolution was adopted with 37 votes in favour, 0 against, and 7 abstentions. The United Kingdom and France were the last States to prohibit dumping of all radioactive wastes at sea. 30 Article 3(3)(b) of Annex II allowed the United Kingdom and France to retain an option to return to dumping of low-and intermediate level wastes after 2008: however, at Sintra in 1998 both States have now confirmed that they will not retain this option and abandoned once and for all any claimed right to dump radioactive wastes or other materials into the marine environment: see infra. para 9.49. 215
This applies to pollution from radioactive substances: see Appendix 2, para 3(g). Appendix 1 of the 1992 Convention provides detailed definitions of “best available techniques” and “best environmental practices”. These definitions are to be taken into account and applied by the United Kingdom in giving effect to the requirements of Articles 194 and 207 of UNCLOS.
9.46. Of particular note is the provision common to the definitions of both “best available techniques”31 and “best environmental practices”32 to the effect that they are
31 “Best available techniques” means: 1. The use of the best available techniques shall emphasise the use of non-waste technology, if available. 2. The term “best available techniques” means the latest stage of development (state of the art) of processes, of facilities or of methods of operation which indicate the practical suitability of a particular measure for limiting discharges, emissions and waste. In determining whether a set of processes, facilities and methods of operation constitute the best available techniques in general or individual cases, special consideration shall be given to: a. comparable processes, facilities or methods of operation which have recently been successfully tried out; b. technological advances and changes in scientific knowledge and understanding; c. the economic feasibility of such techniques; d. time limits for installation in both new and existing plants; e. the nature and volume of the discharges and emissions concerned. 3. It therefore follows that what is “best available techniques” for a particular process will change with time in the light of technological advances, economic and social factors, as well as changes in scientific knowledge and understanding. 4. If the reduction of discharges and emissions resulting from the use of best available techniques does not lead to environmentally acceptable results, additional measures have to be applied. 5. “Techniques” include both the technology used and the way in which the installation is designed, built, maintained, operated and dismantled.” 32 “Best environmental practices” means: “6. The term “best environmental practice” means the application of the most appropriate combination of environmental control measures and strategies. In making a selection for individual cases, at least the following graduated range of measures should be considered: a. the provision of information and education to the public and to users about the environmental consequences of choice of particular activities and choice of products, their use and ultimate disposal; b. the development and application of codes of good environmental practice which covers all aspect of the activity in the product’s life; c. the mandatory application of labels informing users of environmental risks related to a product, its use and ultimate disposal; d. saving resources, including energy; e. making collection and disposal systems available to the public; f. avoiding the use of hazardous substances or products and the generation of hazardous waste; g. recycling, recovery and re-use; h. the application of economic instruments to activities, products or groups of products; i. establishing a system of licensing, involving a range of restrictions or a ban. 7. In determining what combination of measures constitute best environmental practice, in general or individual cases, particular consideration should be given to: a. the environmental hazard of the product and its production, use and ultimate disposal; b. the substitution by less polluting activities or substances; c. the scale of use; d. the potential environmental benefit or penalty of substitute materials or activities; e. advances and changes in scientific knowledge and understanding; f. time limits for implementation; g. social and economic implications. 216 concepts which are not static and set in time but which, in relation to the operation of the MOX plant, “will change in time in light of technological advances, economic and social factors, as well as changes in scientific knowledge and understanding” (Appendix 1, paras. 3 and 8). As explained below, it is a central part of Ireland’s case that the United Kingdom has taken no account of this requirement, by authorising in 2001 (and without reference to these requirements) a MOX project which was inadequately assessed in 1993 in an assessment exercise which applied the outmoded technologies and environmental standards of 1993.
9.47. Since the 1992 OSPAR Convention came into force in 1998 the States which are parties have adopted further commitments, including in relation to radioactive discharges and pollution. These take into account the growing concerns about the potential impacts of radioactive pollution, even at the lowest levels, on the marine environment: see Chapter 3, paras. 3.54-3.60.33
9.48. In 1998 the United Kingdom and Ireland joined other European States in adopting the Sintra Ministerial Declaration on future action to ensure the protection of the marine environment of the North-East Atlantic. The Declaration imposes significant new constraints on North-East Atlantic States. It imposes clear and immediate constraints on the United Kingdom, in particular in relation to activities at Sellafield, including in relation to the MOX and THORP plants. The importance of the Sintra Declaration has been recognised by The Royal Society34 and by the United Kingdom’s Radioactive Waste Management Advisory Committee,35 as well as other independent authorities.36
9.49. At Sintra the Ministers from Ireland and the United Kingdom and other States emphasised their “commitment to take all possible steps to achieve our overall objective for the protection of the marine environment of the North East Atlantic of preventing and eliminating pollution, protecting human health and ensuring sound and healthy marine ecosystems” (Preamble).
The Ministers also re-emphasised their “clear commitments to the application of the precautionary principle and the polluter-pays principle and to the identification of best available techniques (BAT) and best environmental practice (BEP), including, where appropriate, clean technology” (Preamble)
8. It therefore follows that best environmental practice for a particular source will change with time in the light of technological advances, economic and social factors, as well as changes in scientific knowledge and understanding. 9. If the reduction of inputs resulting from the use of best environmental practice does not lead to environmentally acceptable results, additional measures have to be applied and best environmental practice redefined. 33 See also the Mothersill Report, vol 2, Appendix 3, and the Liber Report, vol 2, Appendix 5. 34 Vol 3(2), Annex 99, p 525 (“The ever more stringent targets imposed under the North Atlantic (OSPAR) Convention make passivisation [of radioactive wastes] increasingly difficult and expensive”). 35 Vol 3(2), Annex 100, p 542 (“The 1995 Cm 2929 Government policy statement, which covered all aspects of radioactive waste management, is increasingly being overtaken by developments (such as the collapse of the Nirex repository programme and the 1998 OSPAR Sintra agreement”). 36 STOA Report, November 2001, vol 3(3), Annex 105, p 175 ((“The [Sintra] commitments are more onerous than appear at first sight. Ministers have committed themselves to achieving concentrations in the environment close to zero; not concentrations in discharges.”) 217
With respect to radioactive substances, the Ministers welcomed the announcements by the French and United Kingdom Governments that they were giving up their possible future exemptions from the ban on the dumping of low-level and intermediate-level radioactive wastes and welcomed the announcement of the United Kingdom Government that no new commercial contracts would be accepted for reprocessing spent fuel at Dounreay, with the result that there would be future reductions in radioactive discharges to the maritime area from that plant.37 The Ministers declared: “WE AGREE, in addition, to prevent pollution of the maritime area from ionising radiation through progressive and substantial reductions of discharges, emissions and losses of radioactive substances, with the ultimate aim of concentrations in the environment near background values for naturally occurring radioactive substances and close to zero for artificial radioactive substances. […] WE SHALL ENSURE that discharges, emissions and losses of radioactive substances are reduced by the year 2020 to levels where the additional concentrations in the marine environment above historic levels, resulting from such discharges, emissions and losses, are close to zero.”
It is to be noted that the emphasis as to result is on concentrations, and it is these that are to be reduced. The fulfilment of this obligation requires – at the very least – significant and immediate reductions in discharges of all radionuclides from all sources. It is a central part of Ireland’s case that the decision to authorise the MOX plant and to extend the life of the THORP plant is wholly inconsistent with the commitment undertaken by the United Kingdom just three years earlier. The Ministers also committed the OSPAR Commission to: • “undertake the development of environmental quality criteria for the protection of the marine environment from adverse effects of radioactive substances and report on progress by the year 2003” and • “continue to reduce radioactive discharges from nuclear installations to the marine environment by applying [Best Available Technology]”38
9.50. At the same time, the Ministerial Meeting of the OSPAR Commission adopted a Strategy with Regard to Radioactive Substances, to guide the work of the Commission. The Strategy identified the following objective for the OSPAR Commission: “the objective of the Commission with regard to radioactive substances, including waste, is to prevent pollution of the maritime area from ionising radiation through progressive and substantial reductions of discharges, emissions and losses of radioactive substances, with the ultimate aim of concentrations in the environment near background values for naturally occurring radioactive substances and close to zero for artificial radioactive substances.”39
The Commission’s Strategy is “to develop programmes and measures to identify, prioritise, monitor and control (i.e. to prevent and/or reduce and/or eliminate) the emissions, discharges and losses of radioactive substances caused by human activities which reach, or could reach, the marine environment and which could cause pollution
37 Sintra Ministerial Declaration, 23 July 1998; vol 3(1), Annex 76. 38 Ibid. 39 Vol 3(1), Annex 75, para 1.1. 218 through ionising radiation” (para. 3.1). The time frame for the implementation of the Commission’s strategy is: By the year 2000: “the Commission will, for the whole maritime area, work towards achieving further substantial reductions or elimination of discharges, emissions and losses of radioactive substances” By the year 2020: “the Commission will ensure that discharges, emissions and losses of radioactive substances are reduced to levels where the additional concentrations in the marine environment above historic levels, resulting from such discharges, emissions and losses, are close to zero.”
9.51. Beyond the general commitments and the specific undertaking to “continue” to apply best-available technologies, the consequences for the United Kingdom of the Ministerial Declaration and the Commission’s Strategy on Radioactive Substances are two-fold: First, the United Kingdom commits itself with immediate effect to “progressive and substantial reductions of discharges of radioactive substances”, and Second, the United Kingdom commits itself to the attainment of concentrations of artificial radionuclides in the environment of the Irish Sea at a level which are “close to zero” by 2020.
9.52. These commitments inform the United Kingdom’s obligations under Articles 194 and 207 of UNCLOS. If the United Kingdom is not meeting its Sintra Declaration commitment it cannot meet its obligations under UNCLOS. The commitments provides a baseline for assessing the substantive legality of the decision-making process relating to the MOX plant, as well as its operation and the consequences of its operation for other facilities at Sellafield, including THORP and the storage of radioactive wastes.
9.53. In June 2000 the OSPAR Commission adopted Decision 2000/1 on Substantial Reductions and Elimination of Discharges, Emissions and Losses of Radioactive Substances, with Special Emphasis on Nuclear Reprocessing. It entered into force on 16 January 2001 for those states supporting it.40 The Decision sought to implement the commitment set forth in the 1998 Sintra Ministerial declaration and: • Noted “that a study of the alternative nuclear fuel cycles has now been carried out by the Nuclear Energy Agency (NEA) of the Organisation for Economic Co-operation and Development (OECD)”; • Noted “that the NEA-study has demonstrated that implementing the non- reprocessing option (dry storage) for spent fuel would eliminate the discharges and emissions of radioactive substances that currently arise from reprocessing it”; • Noted “that discharges from nuclear reprocessing facilities can be traced through the Irish Sea, the North Sea, along the Norwegian coast into the Arctic and Atlantic Oceans giving rise to elevated levels [of radioactivity] in biota”; • Recognised “that the reduction of discharges and emissions of radioactive substances from nuclear reprocessing facilities would be beneficial for the
40 Vol 3(1), Annex 78. No party objected to Decision 2000/1: France and the United Kingdom abstained. 219
legitimate uses of the sea, technically feasible, and would diminish the radiological impacts of radioactive substances on man and biota”; • Expressed concern “that nuclear reprocessing facilities in the North-East Atlantic area are the dominant sources of discharges, emissions and losses of radioactive substances and that implementing the non-reprocessing option for spent nuclear fuel would, therefore, produce substantial reductions of discharges, emissions and losses of radioactive substances into the North-East Atlantic”; • Encouraged “relevant Contracting Parties to immediately begin negotiations with regard to all existing contracts for the reprocessing of spent nuclear fuel, with the aim of implementing the non-reprocessing option for spent nuclear fuel;” and • Encouraged “Contracting Parties not to authorise new nuclear reprocessing facilities or substantial increases of capacity of existing nuclear reprocessing facilities.”
9.54. The operative part of the Decision stipulated: “The current authorisations for discharges or releases of radioactive substances from nuclear reprocessing facilities shall be reviewed as a matter of priority by their competent national authorities, with a view to, inter alia: • implementing the non-reprocessing option (for example dry storage) for spent nuclear fuel management at appropriate facilities; • taking preventive measures to minimise the risk of pollution by accidents.”
9.55. In June 2001 the parties to the OSPAR Commission adopted Decision 2001/1 on the Review of Authorisations for Discharges or Releases of Radioactive Substances from Nuclear Reprocessing Facilities.41 The Decision also sought to implement the commitment set forth in the 1998 Sintra Ministerial Declaration and: • Recognised “that in order to act in compliance with the time frame, laid down in Paragraphs 4.1(a) and (b) of the OSPAR Strategy with regard to Radioactive Substances, there is an urgent need to achieve further substantial reductions or elimination of discharges, emissions and losses of radioactive substances”; • Noted “that OSPAR 2000 decided that the current authorisations for discharges or releases of radioactive substances from nuclear reprocessing facilities shall be reviewed as a matter of priority by the competent national authorities of the Contracting Parties to the OSPAR Convention”; and • Recognised “that nuclear spent fuel reprocessing activities represent the dominant source of radioactive contamination of the marine environment of the North-East Atlantic”.
The operative part of the Decision stipulated that:
41 Vol 3(1), Annex 79. France, United Kingdom and Switzerland abstained. 220
“The current review of authorisations for discharges or releases of radioactive substances from nuclear reprocessing facilities shall be completed as a matter of urgency.”
9.56. In March 2002 the United Kingdom joined in support of the Bergen North Sea Declaration, which encouraged “relevant North Sea States to evaluate the options for spent fuel management after current reprocessing contracts have come to an end”.42 France was alone in opposing that commitment, indicating that it could not endorse this commitment.43 In contrast to France’s position, the United Kingdom is now formally committed to review options other than reprocessing.
9.57. Notwithstanding these commitments adopted in 1998, 2000 and 2001, the United Kingdom appears to have taken no account of them in the decisions to authorise the MOX plant and, in so doing, to commit to additional reprocessing contracts and activity at the THORP plant. The United Kingdom’s October 2001 Decision authorising the MOX plant makes no reference to any of these commitments, and makes no effort to explain how the authorisation of the MOX plant and the consequential increase in reprocessing activity at the THORP plant can be reconciled with a strategy on the part of the United Kingdom to meet the targets to which it had committed itself.
SUMMARY ON INTERNATIONAL RULES AND STANDARDS
9.58. In summary, these rules of international law, which are consistent with UNCLOS and which the Annex VII Tribunal is required by UNCLOS Article 293 to apply (see Chapter 6) reflect the following: • The recognition by the whole of the international community that the discharge of radioactive substances into the marine environment is per se harmful; • The general commitment of the international community to prevent and eliminate pollution of the marine environment by radioactive substances; • The specific and express commitment of Ireland, the United Kingdom and all other members of the United Nations (pursuant to paragraph 22.5(b) of Agenda 21) not to authorise or allow the storage or disposal of radioactive wastes near the marine environment, unless they determine that the scientific evidence shows that such storage or disposal poses no unacceptable risk to people and the marine environment or does not interfere with other legitimate uses of the sea, making, in the process of consideration, appropriate use of the concept of the precautionary approach; • The specific and express commitment of Ireland and the United Kingdom, and other parties to the 1992 OSPAR Convention, to apply the precautionary principle in considering the authorisation of discharges of all polluting substances into the marine environment; • The specific and express commitment of the United Kingdom, and other parties to the 1992 OSPAR Convention, to require the use of best available
42 Vol 3(2), Annex 86, p 162 (para 68(iv)). 43 Ibid. 221
technologies and best environmental practices in respect of all activities that might cause pollution of the marine environment; • The specific and express commitment of the United Kingdom, and other parties to the OSPAR Convention, to achieve “progressive and substantial reductions of discharges of radioactive substances” into the Irish Sea and to ensure that additional concentrations above historic levels of artificial radionuclides in the environment of the Irish Sea are at a level which are “close to zero” by 2020; • The specific and express commitment of States Parties to the OSPAR Convention to consider alternatives to reprocessing and to implement a “non- reprocessing option for spent nuclear fuel”, and to that end to review discharge authorisations.
These commitments are in addition to the specific obligations of the United Kingdom to carry out a full and proper assessment of the direct and indirect impacts of the MOX plant prior to its authorisation (see Chapter 7) and to co-operate fully with Ireland in relation to the possible impacts of the MOX plant (see Chapter 8).
C: THE DISCHARGE AND RELEASE OF RADIOACTIVE SUBSTANCES ASSOCIATED WITH THE AUTHORISATION OF THE MOX PLANT IS “POLLUTION” AND CONSTITUTE “TOXIC, HARMFUL AND PERSISTENT SUBSTANCES”
9.59. The radioactive substances which will be discharged into the Irish Sea and into the atmosphere as a result of the authorisation of the MOX plant – including from the MOX plant and the THORP plant – are pollution within the meaning of UNCLOS. They are also recognised to be toxic, harmful and persistent, within the meaning of UNCLOS.
9.60. The especially hazardous characteristics of radiation are widely recognised, as is the need for special measures of precaution. In its 1996 Advisory Opinion on the Legality of the Use of Nuclear Weapons the International Court of Justice stated: “[i]onizing radiation has the potential to damage the future environment, food and marine ecosystem, and to cause genetic defects and illness in future generations”.44
POLLUTION
9.61. Article 1(4) of UNCLOS defines “pollution of the marine environment” as: “the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.”
44 1996 ICJ Reports, p 226 at 244 (para 35). 222
9.62. This is a broad definition. It applies to all substances that are introduced by man into the marine environment. It plainly encompasses radioactive substances, including all the radioactive substances which will reach the Irish Sea directly as a result of the authorisation of the MOX plant (see Chapter 3). The definition also includes radioactive substances that reach the marine environment by indirect means, for example by release into the atmosphere (see UNCLOS Article 212).
9.63. The definition also encompasses any unplanned release or releases which might occur as a result of accident or terrorist act at the MOX plant and associated activities, including in the course of international transport to and from the MOX plant and at the THORP plant and in relation to any waste storage facilities associated with the MOX or THORP plants.
9.64. It cannot be claimed, in respect of any of the planned or unplanned discharges arising from the authorisation of the MOX plant, that they will not or could not result in or be likely to result in “such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities”. These words are to be interpreted and applied in the light of the precautionary principle.45 As one leading commentator has put it: “Il est à remarquer que la definition de la pollution marine a évolué sous l’influence du principe de précaution. Les conventions relatives à la protection du milieu marin adoptées dans le courant des années 1970 définissaient la pollution marine de façon plus restrictive, en considérant qu’il ne pouvait être question de “pollution” que lorsqu’il était démontré que l’introduction de substances ou d’énergie dans la mer avait des effets préjudiciables.”46
9.65. In the Provisional Measures phase of these proceedings, before ITLOS, the United Kingdom asserted that “the radiological detriments that would arise from the manufacture of MOX fuel would be very small and that any effects on wildlife would be negligible”.47 But it did not challenge Ireland’s assertion that these discharges were pollution within the meaning of UNCLOS.
9.66. Indeed, it is now accepted that even at the lowest levels, the possibility of radioactive pollution causing harm to human health and to other living resources cannot be excluded. As the United Kingdom’s National Radiological Protection Board puts it: “There is very strong scientific evidence that the energy from radioactive material affects the cells of the body, mainly because of the damage it can cause to cellular genetic material known as DNA. DNA controls the way in which each individual cell behaves. At high doses enough cells may be killed by damage to DNA and other parts of the cell to cause great injury to the body and even rapid death. At lower doses there will be no obvious injury but a number of the cells that survive will have incorrectly repaired the DNA damage so that they carry mutations. Some specific mutations leave the cell at greater risk of being triggered to become
45 Supra, para 9.61. 46 J. Salmon (ed.), Dictionnaire de droit international public (Brussels, 2001), p 847 (“It is to be noted that the definition of pollution has evolved under the influence of the precautionary principle. Treaties addressing the protection of the marine environment which were adopted in the 1970’s defined pollution in a more restrictive manner, considering that “pollution” could only occur if it had been shown that the introduction of substances or energy into the sea had caused harmful effects”: unofficial translation). 47 United Kingdom, Written Response, 15 November 2001, para 60. 223
cancerous in the future. The body will already carry cells with these mutations from other causes but the ionising radiation exposure increases the number of these mutant cells. It therefore increases the chance of cancer development, usually after many years. The scientific information that has been obtained worldwide leads NRPB to believe that even the lowest dose of ionising radiation, whether natural or man- made, has a chance of causing cancer. The extra cancer risk from very low doses will be extremely small and, in practice, undetectable in the population. However the extra cancer risk at higher doses may be detectable using statistical methods. Even after high dose exposure it is rarely possible to be certain that radiation was directly responsible for a cancer arising in an individual.”48 (emphasis added)
9.67. The introduction of radioactive substances into the marine environment – even in the smallest quantities – has the potential to harm life and the environment and hinder marine activities, to impair the quality for use of sea-water, and to reduce amenities.
9.68. This is confirmed also by the independent reports commissioned by Ireland for the purpose of these proceedings, in particular the Mothersill Report49 and the Salbu Report.50
RADIOACTIVE SUBSTANCES ARE “TOXIC”, “HARMFUL” AND “PERSISTENT”
9.69. Article 194 of UNCLOS requires particular measures of protection to be applied where a State is dealing with releases – or potential releases – of substances which are toxic, harmful or noxious, especially those which are persistent.51 It is self-evident that radioactive substances in the quantities which are planned to be discharged from the MOX plant and from the THORP plant are “toxic”, “harmful” and “persistent”.
9.70. The radioactivity in plutonium dioxide – one of the products of THORP reprocessing and one of the ingredients in the manufacture of MOX fuel – makes it a highly toxic material. If a person inhales into the lungs less than a 100 micrograms of plutonium dioxide (which is too small a quantity to be visible to the human eye), it is highly probable that he or she will develop lung cancer. If a few milligrams are ingested there is a high probability of developing liver or bone cancer.
9.71. By any standard, potential consequences of this kind necessarily mean that plutonium dioxides and the other radioactive substances produced by the THORP plant and used in the manufacture of MOX fuel, as well as the radioactive waste products arising from both plants, are “harmful” within the meaning of Article 194 of UNCLOS.
9.72. Radionuclides may not be “noxious” within the meaning of UNCLOS, at least in the sense that they cannot be seen or felt or tasted or smelt. This is one of the reasons they are so feared.
48 http://www.nrpb.org/radiation_topics/risks/damage.htm (web site last visited on 10 June 2002). 49 Vol 2, Appendix 3. 50 Vol 2, Appendix 2. 51 Supra., paras 9.11. 224
9.73. The radioactive substances produced by the THORP plant and used in the manufacture of MOX fuel, as well as the radioactive waste products arising from both plants, are also “persistent” within the meaning of Article 194 of UNCLOS. Many of them will have half-lives of tens or hundreds of years, and in some cases thousands of years (plutonium-239 has a half life of 24,400 years).
9.74. The potential dangers of these radioactive substances is graphically illustrated by the events around the Dounreay reprocessing plant. Since 1984 individual particles have been found on the beaches and in the waters around the Dounreay plant (which is not part of the Sellafield site). This has led to beach closures and legal action by a local landowner.52
D: THE UNITED KINGDOM HAS VIOLATED UNCLOS
9.75. By authorising the MOX plant and allowing it to be brought into operation the United Kingdom has violated general obligations of the 1982 Convention concerning the obligation to prevent pollution and protect the marine environment, as set forth in Article 194 of UNCLOS. The United Kingdom has also violated other provisions of the UNCLOS which establish specific obligations to prevent pollution from land-based sources (Articles 207 and 213 UNCLOS), to prevent pollution through the atmosphere (Articles 212 and 222) and to take steps to prevent pollution from vessels (Article 211 and 217 UNCLOS).
9.76. In summary terms these obligations, when taken together, require the United Kingdom “to take all necessary measures” to prevent, reduce and control pollution of the Irish Sea, and to protect the marine environment of the Irish Sea. To meet this general obligation two pre-requisites must be satisfied: first, the United Kingdom should have assessed the potential effects of the authorisation and operation of the MOX plant on the marine environment of the Irish Sea, and second, the United Kingdom should have applied the precautionary principle. It has done neither, and on this basis alone cannot be said to have met its general obligations to protect and preserve the marine environment of the Irish Sea.
ENVIRONMENTAL IMPACT ASSESSMENT
9.77. Chapter 7 has described the manner which in the United Kingdom has failed to meet its obligations under Article 206 of the 1982 Conventions. The failings are manifest. As set out in Chapter 7, the United Kingdom should have assessed the current environmental conditions of the Irish Sea (radioactive contamination), with a view to
52 See The Times, 5 July 2002 (“A landowner who says that his beach has been contaminated by radioactive particles from Dounreay nuclear power station began legal action against the UK Atomic Energy Authority yesterday. Geoffrey Minter, who owns Sandside Bay next the power station in Caithness, said that he launched a private lawsuit after failing to reach a solution during a five-year campaign to get the Dounreay authorities to clean up their waste. In his petition Mr Minter states that the first radioactive particle was washed up on the beach in 1984, seven years before he bought the Sandside House which includes the bay, a harbour and golf course. […] Two more radioactive particles were found in 1997 and since the introduction of improved monitoring a further 17 particles have been detected. The Atomic Energy Authority said that it would consider the issues raised by the petition before issuing a formal response. It said its monitoring procedure met specifications regulated by the Scottish Environment Protection Agency.”) 225 assessing the impacts of additional discharges arising from the authorisation and operation of the MOX plant. It should have identified the discharges from the MOX plant and those from the THORP plant which would not have occurred but for the authorisation and operation of the MOX plant. It should have identified the generation of solid radioactive wastes arising from the MOX plant and from the THORP plant (including the EARP plant), and assessed their impacts on current waste storage facilities at Sellafield. It should have assessed the possibility of accidents (or incidents) arising from transports associated with the MOX plant both to and from Sellafield. The United Kingdom has done none of these things. Having failed to carry out a proper environmental assessment, the United Kingdom cannot claim to know what will be the impact of the authorisation and operation of the MOX plant on the Irish Sea.
9.78. These failures become all the more material in light of the commitment which the United Kingdom accepted, in the summer of 1998, to reduce to “close to zero” the concentrations of artificial radionuclides in then Irish Sea, by 2020. The environmental impacts of the authorisation and operation of the MOX plant does not appear to have been assessed by the United Kingdom by reference to that standard. If there has been such an assessment it has not been made public, and it has not been shared with Ireland. No such assessment was identified in the United Kingdom’s document explaining the October 2001 Decision to authorise the MOX plant (the communication of the results of any assessment is an essential part of the process of being seen to have taken account of its 1998 undertaking). In these circumstances the United Kingdom cannot reasonably claim to have taken all measures necessary to protect the marine environment of the Irish Sea.
PRECAUTIONARY PRINCIPLE
9.79. As described in more detail in Chapter 6,53 in this case the application of the precautionary principle means that “preventive measures are to be taken when there are reasonable grounds for concern that substances or energy introduced, directly or indirectly, into the marine environment may bring about hazards to human health, harm living resources and marine ecosystems, damage amenities or interfere with other legitimate uses of the sea, even when there is no conclusive evidence of a causal relationship between the inputs and the effects”.54
This language, in Article 2(2)(a) of the 1992 OSPAR Convention, is binding on the United Kingdom and directly applicable to the authorisation of the MOX plant. It reflects in treaty language the customary rule reflected in Agenda 21, whereby Ireland and the United Kingdom joined more than 170 other states in expressly undertaking to “Not promote or allow the storage or disposal of high-level, intermediate-level and low-level radioactive wastes near the marine environment unless they determine that scientific evidence, consistent with the applicable internationally agreed principles and guidelines, shows that such storage or disposal poses no unacceptable risk to people and the marine environment or does not interfere with
53 See Paras 6.22 et seq. 54 Ibid, para 6.22. 226
other legitimate uses of the sea, making, in the process of consideration, appropriate use of the concept of the precautionary approach.”55
The applicability of the precautionary principle to this case does not appear to be in dispute.56
9.80. What does the precautionary principle mean in the present case? Guidance may be found in a Communication from the European Commission on the precautionary principle, adopted in February 2000.57 The Communication recognises that recourse to the precautionary principle is relevant “only in the event of a potential risk, even if this cannot be fully demonstrated or quantified”.58 That requirement is plainly satisfied in the case of the discharge of radioactive substances directly into the environment, as in this case.59
9.81. In determining whether to apply the precautionary principle, the Commission Communication recommends (as Step 1) that there be a prior “identification of the potentially negative effects of a phenomenon”, and (Step 2) that “the scientific data relevant to the risks […] be evaluated”.60 In respect of the MOX plant the authorisation process does not appear to have identified the potentially negative effects on the marine environment of discharges of the relevant quantities of radioactive materials, in particular those arising from the THORP plant which would not otherwise have occurred. And the MOX authorisation process (in particular the Environment Impact Report) has not generated the “scientific data relevant to the risks”, because it has not accurately determined what those risks are. It has omitted the vast majority of the radioactive discharges which will result from the authorization of the MOX plant. Neither Step 1 nor Step 2 appears to have occurred.
9.82. The Commission Communication then recommends (Step 3) that a “scientific evaluation of the potential adverse effects should be undertaken based on available data when considering whether measures are necessary to protect the environment, the human, animal or plant health”, including by means of risk assessment.61 The Communication states that this requires “reliable scientific data and logical reasoning, leading to a conclusion which expresses the possibility of occurrence and the severity of a hazard’s impact on the environment, […] including the extent of possible damage, persistency, reversibility and delayed effect. […]
55 Agenda 21, paragraph 22.5(2), 14 June 1992, A/CONF.151/26/Rev.1 (vol 3(2), Annex 82) .See also Agenda 21, Chapter 17, para 17.5(d) (“Coastal states commit themselves to … [a]pply preventive and precautionary approaches in project planning and implementation, including prior assessment ands systematic observation of the impacts of major projects”), para 17.22. See also para 111(a) of the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities (1995), vol 3(2), Annex 83. 56 During the course of the provisional measures phase of proceedings before the International Tribunal for the Law of the Sea the United Kingdom did not challenge Ireland’s characterisation of the precautionary principle as having the status of customary international law. In prescribing its measure the International Tribunal applied “prudence and caution”: Order of 3 December 2001, vol 3(1), Annex 3. 57 Vol 3(2), Annex 84. 58 Ibid, p 13. 59 See Chapter 3, paras 3.50-60. 60 Ibid, p 14. 61 Ibid. 227
Where possible, a report should be made which indicates the assessment of the existing knowledge and the available information, providing the views of the scientists on the reliability of the assessment as well as on the remaining uncertainties. If necessary, it should also contain the identification of topics for further research.”62
The Commission Communication therefore makes it clear that risk assessment comprises four elements, namely hazard identification, hazard characterisation, appraisal of exposure and risk characterisation.63 Not one of the decision documents relating to the authorisation of the MOX plant indicate that the consequences of the discharges from the MOX plant – both direct and indirect, and taking account of their cumulative consequences – have been subject to this scrutiny. As the Communication makes clear: “An attempt to complete these four steps should be performed before a decision to act is taken.”64
Ireland is not aware of any available material which indicates that the United Kingdom subjected the consequences of the authorisation of the MOX plant to hazard identification, to hazard characterisation, to appraisal of exposure or to risk characterisation, either before or after the plant was authorised. There is nothing in the Environmental Impact Statement65 or the October 2001 Decision66 which indicates that this step (Step 3) has been complied with. If there has been such an assessment it has not been published. All the United Kingdom did was to assess whether the MOX plant discharges could be accommodated within existing (1996) discharge authorisations. It is apparent, therefore, that the United Kingdom has not made, in the process of consideration of the MOX plant, appropriate (or indeed any) use of the concept of the precautionary approach, as international law requires.
9.83. Once these three steps have taken place, and the decision-maker becomes aware of “a risk to the environment or human, animal or plant health that in the event of non-action may have serious consequences”, the decision-maker should (according to the Commission) obtain “through a structured approach, a scientific evaluation, as complete as possible, of the risk to the environment, or health, in order to select the most appropriate course of action”.67 This is, in effect, Step 4, but it only comes into play once the earlier three steps have been performed. Since this did not occur in the case of the MOX plant, the UK decision-makers never reached Step 4. If they had, they should have sought to obtain “as objective and complete as possible scientific evaluation” which would cast light on the existing objective evidence, the gaps in knowledge and the scientific uncertainties.”68
9.84. This would lead to Step 5: a basis for triggering a decision to invoke the precautionary principle, having regard to the scientific evaluation, on the basis that the desired level of protection for the environment “could be jeopardised”.69 In this case the
62 Ibid. 63 Ibid. 64 Ibid (emphasis added). 65 Vol 3(3), Annex 103. 66 Vol 3(2), Annex 92. 67 Ibid p 16. And of course the decision-maker is bound to apply current environmental standards, not old standards: see ICJ, Case Concerning the Gabcikovo-Nagymaros Project, 1997 ICJ Reps, p 7, para 140. 68 Ibid. 69 Ibid. 228 desired level of protection is that reflected in the 1998 Sintra Ministerial decision requiring the United Kingdom and Ireland to take steps to reduce anthropogenic concentrations of radionuclides in the Irish Sea to “close to zero” by 2020. The documents relating to the authorisation of the MOX plant make no mention of this objective. The 1993 Environmental Impact Statement predated the Sintra commitment by five years. The October 2001 Decision referred to the discharge authorisation approved by the Environment Agency in 1996 – two years before the Sintra commitment. So even if the United Kingdom had reached Step 5, it would have failed to have properly applied the Commission’s criteria for deciding whether to apply precautionary protective measures.
9.85. If the United Kingdom had reached that point, the following aspects should, according to the Commission’s guidelines, be taken into account: • the views of scientific advice, even if the views are supported only by a credible and reputable minority fraction of the scientific community;70 • The absence of scientific proof of the existence of a cause-effect relationship, a quantifiable dose/response relationship or a quantitative evaluation of the probability of the emergence of adverse effects should not be used to justify a failure to take additional protective measures;71 • Risk reduction measures other than a total ban should be considered, including appropriate treatment, reduction of exposure, tightening of controls, and adoption of provisional limits;72 • Long-term effects must be taken into account in evaluating the proportionality of measures whose effects will not surface until ten or twenty tears later or will affect future generations, in particular where effects on the eco-system are concerned;73 and • Requirements linked to the protection of public health should undoubtedly be given greater weight than economic considerations.74
9.86. In summary, environmental impact assessment requirements, and the need to apply the precautionary principle, must be applied to the decision-making procedures associated with the authorisation of the MOX plant. Properly applied, either would have generated a more significant quantity of scientific material relating to the consequences of the authorisation and operation of the MOX plant and associated activities at THORP. The failure to prepare a proper environmental impact statement, and the absence of consideration of the precautionary principle, mean that the decision to authorise the MOX plant was taken on the basis of an insufficient baseline of information.
9.87. These manifest and early failures contribute materially to the United Kingdom’s violation of its obligations under the UNCLOS. Having failed properly to identify all the consequences of the authorisation of the MOX plant, and then to assess those consequences by reference to (1) their impacts on the marine environment of the Irish Sea, and (2) the United Kingdom’s specific legal obligations (in particular the commitment to reduce concentrations above historic levels of radionuclides in the Irish Sea to “close to
70 Ibid, p 17. 71 Ibid. 72 Ibid, p 18. 73 Ibid. 74 Ibid, p 21 229 zero” by 2020), there is no basis upon which the United Kingdom can claim to have taken “all steps necessary” to prevent pollution, or to have applied “best environment practices” or “best available technologies”, or to have minimized “to the fullest extent possible” the release of radioactive substances into the Irish Sea.
9.88. Ireland’s case is not only that the discharges flowing from the authorisation of the MOX plant will necessarily cause quantifiable environmental damage to the Irish Sea, and that they will necessarily result in a failure to reach the objectives of the Sintra Ministerial Declaration.
9.89. Rather, it is also that the omissions and failures in the decision-making process – the procedural violations – have prevented the United Kingdom from properly directing itself as to the substantive standards which are to be met.
9.90. As a consequence of its inactions and omissions the United Kingdom has proceeded to the decision to authorise the MOX plant (together with additional and prolonged discharges from the THORP plant, the increased risks arising from more international transports, and the consequences of additional waste streams for storage) in the absence of a proper information base. To this day, none of the United Kingdom’s decision-making documents which are in the public domain or have been made available to Ireland properly and completely quantify the environmental consequences of the MOX plant.
9.91. It is against the background of these general observations that the United Kingdom’s violations of the substantive obligations of UNCLOS fall to be assessed. Those violations fall into four categories (although there will necessarily be a degree of overlap between them), and its appropriate to consider the authorisation process as a whole and not only reference to specific sectoral requirements. The four categories are: • Violations of general obligations to prevent pollution (paragraphs 9.92-9.111); • Violations relating to obligations to prevent pollution from land-based sources (paragraphs 9.112-9.145); • Violations relating to obligations to prevent pollution from vessels (paragraphs 9.146-9.156); and • Violations relating to obligations to prevent pollution through the atmosphere (paragraphs 9.157-9.169).
VIOLATIONS OF THE GENERAL OBLIGATION TO PREVENT POLLUTION
1. The United Kingdom has failed to “take all measures consistent with UNCLOS that are necessary” to prevent, reduce and control pollution of the Irish Sea
9.92. Article 194(1) requires the United Kingdom to “take … all measures consistent with [the 1982] Convention that are necessary to prevent reduce and control pollution of the marine environment” resulting from the authorisation of the MOX plant. Such measures are to make use of “best practicable means” at the disposal of the United Kingdom. 230
9.93. The authorisation of the MOX plant will lead to intended and unintended discharges directly to the marine environment from the MOX plant, as well as through the atmosphere.75 The intended discharges from the MOX plant are identified (in very general terms) in the 1993 Environmental Statement.76 The intended discharges from the THORP plant which will arise as a direct result of the authorisation of the MOX plant have not been identified or quantified.77 The unintended discharges – including from transports and waste facilities, whether by reason of accident or terrorist incident – do not appear to have been identified by the United Kingdom or subject to a risk assessment in accordance with the precautionary principle. All of these discharges – intended or unintended, assessed and not assessed – constitute “pollution” within the meaning of UNCLOS.78
9.94. As set out above (Chapter 3, para. 3.16), the United Kingdom has not identified all the consequences of the authorisation and operation of the MOX plant. Such identification is a necessary pre-requisite. The omissions relate to the failure to carry out a proper environmental impact assessment and the failure to apply the precautionary principle in deciding to locate the MOX plant next to the marine environment, with the result that no risk assessment was carried out properly or indeed at all.
9.95. Without the benefit of a proper base of information to assess all the environmental impacts of the MOX plant it is difficult to see how the United Kingdom could have been in a position to decide what was necessary, and hence to “take all the measures necessary” to prevent, control and reduce pollution of the Irish Sea.
9.96. Having failed to direct itself to the discharges which would occur from the THORP plant as a result of the authorisation and operation of the MOX plant, the United Kingdom could not be in a position to identify what the consequences of discharges from the THORP plant would be. Without the benefit of that information a State cannot determine what measures (if any) might be necessary to reduce or control the consequences to comply with the requirements of the Convention.
9.97. These failures become all the more material as a result of the fact that the THORP plant has never been subject to an environmental impact assessment.79
9.98. The decision to authorise the MOX plant is, in effect, a decision to extend the operating life of the THORP plant, but without the benefit of having subjected that increased activity to any environmental impact assessment procedure. In the circumstances the United Kingdom has not taken “all measures necessary” to prevent, control or reduce pollution of the Irish Sea.
9.99. Article 194(1) also requires the United Kingdom to make use of the “best practicable means” at its disposal, in taking the “necessary” measures. The words “best practicable means” direct states towards what is essentially a question of fact. “Best practicable means” requires, at the very least, use of “best available technologies” and “best environmental practices”.
75 See Chapter 3, paras 316-42. 76 See Chapter 7, paras 7.43-48. 77 See Chapter 3, paras, 3.50 et seq. 78 Supra., para 9.61-68. 79 Chapter 4, para 4.6. 231
9.100. By failing to carry out a proper environmental impact assessment on the discharges from the MOX plant, and any environmental impact assessment at all in respect of the THORP discharges and the potential environment consequences of international transports and the storage of additional quantities of radioactive wastes, the United Kingdom cannot claim to have made use of “best environmental practices”. As set out below (paragraphs 9.118-9.121), the United Kingdom has authorised the operation of the MOX plant, and the continued and increased operation of the THORP plant, on the basis of technologies which are not the “best available technologies”. For these reasons also the United Kingdom has violated Article 194(1) of the UNCLOS.
2. The United Kingdom has failed to take “all measures necessary” to ensure that MOX plant does not cause damage by pollution to Ireland and its environment
9.101. The first part of Article 194(2) of UNCLOS requires the United Kingdom to take “all measures necessary” to ensure that the authorisation and operation of the MOX plant (together with the consequential increase and prolongation in the operation of THORP, increased transports and the storage at Sellafield of additional quantities of radioactive wastes) does not cause “damage by pollution” to Ireland and its environment.
9.102. It is important to note that the obligation here relates to “damage by pollution”, and not pollution per se. The term “damage” is not defined in UNCLOS, but plainly refers to something other than the mere presence of “pollution”. In general international law the term includes both material and other damage: see Article 31 of the ILC Articles on Responsibility of States for internationally wrongful acts.80 “Damage” would therefore include material damage to habitats and species, to human health and to the environment, as well as economic losses (for example in the tourism and fisheries industries) arising as result of radioactive contamination of the environment. Damage may also occur where the steady and constant discharge of radioactive wastes into Irish waters – even at low levels – can cause Ireland to take preventive measures, for example additional monitoring of radioactive pollution of the marine environment, or enhanced emergency preparedness plans, including their preparation and testing. There would also be “damage by pollution” where concentrations of radionuclides in the Irish Sea were above the level of “close to zero” after 2020. Any act by the United Kingdom – such as the authorisation of the MOX plant – which contributed to such a situation would not be in conformity with the United Kingdom’s obligation to reduce discharges of radioactive substances into the marine environment so as to meet the commitment to reduce concentrations of radioactive substances to “close to zero” by 2020, would give rise to “damage by pollution”, and would violate the first part of Article 194(2) of UNCLOS.
9.103. However, Ireland is not required to show that it has suffered – or even that it will suffer – “damage by pollution” in order to establish that the United Kingdom has violated this part of Article 194(2). It is sufficient for present purposes – as for the obligations under Article 194(1) – to show that the United Kingdom has failed to take “all measures necessary” to prevent “damage by pollution”. It is sufficient for these purposes to establish that the United Kingdom has failed to take all necessary measures to ensure that the authorisation of the MOX plant is consistent with the commitment to reduce concentrations of radionuclides in the Irish Sea to “close to zero” by 2020.
80 UN doc. A/56/10 (2001), p 43. 232
9.104. The word “all” indicates the full extent of this obligation. “All necessary measures” must include measures which will allow the United Kingdom to properly identify and then assess the consequences of the authorisation and operation of the MOX plant. For the reasons set out in the preceding section, the United Kingdom has failed to take such measures. It has failed to prepare – or to cause the developer of the MOX facility to prepare – a proper and complete base of information against which it can assess all the consequences of the MOX plant as against the “close to zero” obligation. In taking the decision to authorise the MOX plant on the basis of inadequate and incomplete information it cannot be said that the United Kingdom has taken “all the measures necessary” to prevent “damage by pollution” to Ireland.
3. The United Kingdom has failed to take “all measures necessary” to ensure that pollution from the MOX plant “does not spread beyond the areas” where it exercises sovereign rights
9.105. The second part of Article 194(2) requires the United Kingdom to take “all measures necessary” to ensure that pollution arising from the authorisation of the MOX plant (and including consequential discharges from THORP) “does not spread beyond the areas” where the United Kingdom exercises sovereign rights. It is apparent that this is a separate, distinct and additional obligation to that set forth in the first part of Article 194(2).
9.106. Moreover, this obligation does not require any claim relating to the existence of “damage”: a claim is well-founded if it can be shown that (1) pollution will be caused as a result of the authorisation and operation of the MOX plant, and (2) such pollution enters the Irish Sea, (3) it is transported beyond the waters over which the United Kingdom has jurisdiction or sovereign rights and enters Irish waters, and (4) the United Kingdom has failed to take “all necessary measures” to ensure that this does not occur.
9.107. As to (1), there can be no dispute that the discharges of radioactive substances into the Irish Sea (as well as indirect arisings through the atmosphere) which are intended to result from the operation of the MOX and THORP plants constitute “pollution”. What is not known are the amounts, as the United Kingdom has not published – or apparently sought to obtain – information as to the volume of discharges which will arise from activities at the THORP plant for the purposes of producing plutonium oxides for use in the MOX plant.81 It has not even published estimates.
9.108. As to (2), there can be no dispute that these discharges will enter the Irish Sea.
9.109. As to (3), the evidence tendered by Ireland confirms that at least some of the radionuclides which are discharged from the MOX and THORP plants will reach Irish waters. This is apparent from the Nies Report82 and the Salbu Report.83 Some of these radionuclides will be deposited in the sediment at the bottom of the Irish Sea where they can remain for many years, or be reintroduced into the marine environment and transported over significant distances, through remobilisation.
81 For Ireland’s estimates see Chapter 3, paras 3.50 et seq. 82 Vol 2, Appendix 4. 83 Vol 2, Appendix 2. 233
9.110. As to (4), the analysis which has been applied to the other obligations under Article 194 of UNCLOS applies equally to this obligation. The United Kingdom has not put itself in a position to be informed as to the totality of radioactive discharges from the MOX and THORP plants which will occur as a consequence of its decision of 3 December 2001, authorising the operation of the MOX plant. It has not informed itself how much “pollution” will be caused by the authorisation of the MOX plant. A State which has failed to inform itself as to how much pollution its authorisation of an activity will cause cannot be said to have taken “all measures necessary” to ensure that such pollution does not reach another State.
9.111. It should be added, once again, that it can be no defence for the United Kingdom to take refuge in the Opinion it obtained in 1997 from the European Commission pursuant to Article 37 of EURATOM.84 First, that Opinion was concerned only with impacts on human health, not with impacts on the marine environment of the Irish Sea. Second, the Opinion was based on an incomplete dossier, since the information provided by the United Kingdom did not include the additional discharges arising from THORP as a result of the authorisation of the MOX plant.85 It should be recalled again that the THORP plant was never subject to an environmental impact assessment. Ireland invites the United Kingdom to provide the Tribunal with a copy of the Article 37 dossier in respect of the THORP Opinion. And third, the MOX Article 37 Opinion pre-dated the 1998 Sintra Ministerial Declaration, and therefore can have taken no account of the United Kingdom’s commitment to reduce concentrations of radionuclides in the Irish Sea to “close to zero”.
VIOLATIONS OF THE OBLIGATIONS TO PREVENT POLLUTION FROM LAND-BASED SOURCES
4. The United Kingdom has failed to take measures “designed to minimize to the fullest possible extent” the release of radioactive substances arising from the authorisation of the MOX plant
9.112. Article 194(3)(a) of UNCLOS requires that the measures to be taken by the United Kingdom to prevent pollution from land-based sources “shall include … those designed to minimize to the fullest possible extent” the release of “toxic, harmful or noxious substances, especially those which are persistent”, from land-based sources. To succeed on this claim Ireland must show that the radioactive substances which will be discharged into the Irish Sea from the MOX plant (and those discharges from the THORP plant which are related to the MOX plant) are (1) toxic or harmful or noxious, and (2) that the United Kingdom has not taken measures which are designed to minimize to the fullest possible extent such releases.
9.113. As to (1), there can be no question but that radioactive substances fall within that category of substances which are toxic, harmful and persistent.86
9.114. As to (2), the approach applied to the other obligations arising under Article 194 of UNCLOS is equally applicable to this obligation: a State which has failed to inform itself
84 See Chapter 7, paras 7.58. 85 The materials are set out in this Memorial, vol 3(3), Annex 123. It does not address discharges from THORP. 86 Supra. Para 9.59-74. 234 as to the volume of radioactive substances which will be released into the Irish Sea as a result of the authorization of the MOX plant – in this case from the THORP and EARP plants as well as the MOX plant itself – cannot easily claim to have taken measures which are designed to “minimize to the fullest possible extent” the release of such substances, because it does not know the extent of that release. On this basis alone the United Kingdom has failed to meet the requirements of Article 194(3)(a) of UNCLOS.
9.115. A further point arises in respect of the volume of radioactive substances which can be predicted as being likely to be released into the Irish Sea as a result of the authorisation of the MOX plant: could they have been further reduced? This raises the question of whether alternative technologies or practices exist which would permit a reduction of releases of radioactive substances from the THORP and MOX plant, such as to permit the conclusion that releases have been “minimized” within the meaning of Article 194(3)(a).
9.116. The United Kingdom has provided very little information – pursuant to the 1993 Environmental Statement – as to the technologies and practices that are being used in the MOX plant. The 1993 Environmental Statement makes no mention of alternative technologies.87 And in the MOX authorisation process no information has been made available as to the THORP technologies and practices. Nevertheless, the evidence put forward by Ireland demonstrates that alternative technologies and practices appear to be available and that releases from the MOX and THORP plants could be further reduced, and significantly so.88
9.117. In relation to the MOX plant, the Environmental Statement that has been prepared for a MOX facility in the United States allows comparison to be made. In respect of liquid discharges the US-MOX Environmental Report states that “Liquid and solid wastes produced in the [US MOX facility] will be transferred to the appropriate SRS facility for waste processing. Consequently, there are no liquid effluents from the MFF.”89
If liquid discharges can be avoided for a MOX production facility in the United States they can also be avoided at the MOX plant at Sellafield. It cannot be said that it is not technically possible to reduce liquid discharges to zero. In such circumstances it cannot be claimed by the United Kingdom that it has taken measures “to minimize to the fullest possible extent” the liquid discharges from the MOX plant. The same applies in respect of discharges to the atmosphere (see infra paragraphs 9.157-169).
9.118. In relation to the THORP plant, the question of abatement technologies has been addressed by the United Kingdom’s Radioactive Waste Management Advisory Committee in its Advice to UK Ministers on the Radioactive Waste Implications of Reprocessing, provided in November 2000. The Executive Summary concludes: “[I]n terms of seeking to reduce the activity of discharges, the situation is somewhat more complex. Again, it is difficult to see how any significantly extended reprocessing programme could be compliant with the Government’s
87 See Chapter 7, para 7.66. See also Sheate Report, vol 2, Appendix 6. 88 See Barnaby Report, vol 2, Appendix 8. 89 See vol 4, 2000 Environmental Report, page 3-14 and Figure 3-6. See also Report of Dr Frank Barnaby, vol 2, Appendix 8. 235
proposed OSPAR objectives unless substantial advances in abatement technology can be achieved.”90
Notwithstanding this advice, within a year the United Kingdom decided in its October 2001 Decision to proceed to the authorisation of the MOX plant, and the consequential extended reprocessing activity at THORP plants. In reaching that Decision no consideration appears to have been given to the use of abatement technologies, or other retentive technologies.91
9.119. In April 2002 the Royal Society, in its submissions to the United Kingdom Government on “Managing Radioactive Waste Safely”, provided the following advice: “The problem of disposal of existing radioactive waste is serious and urgent […]. Changes are essential […]. The ever more stringent targets imposed under the North Atlantic (OSPAR) Convention makes passivisation increasingly difficult and expensive. During the last 50 years the nuclear industry has assumed that passivisation of nuclear waste is a simple matter of engineering, based on straightforward scientific principles. It also seems to have been assumed that such solutions could be implemented rapidly while nuclear waste was being produced. The industry therefore seems to have regarded treatment of waste as of secondary importance, and to have focused its efforts on countering what it saw as unfounded hostile public opinion and on economic concerns. […] We conclude: • Changes in waste management are essential regardless of whether a new generation of nuclear power stations generates fresh volumes of wastes; • Industry and government have placed insufficient emphasis on continued technical developments as a basis for improved waste management […]; • The current waste management regime falls short of that which could be achieved through the use of currently available technologies; • In this interim period, BATNEEC (best available technologies not entailing excessive cost) should be adopted;”92
9.120. As The Royal Society appears to recognise, alternative technologies exist. The Report of Dr Frank Barnaby indicates a range of technologies which are available to reduce liquid discharges and aerial emissions from THORP.93 In relation to abatement technologies for liquid discharges the Report states: Tritium: “Possible abatement technologies to reduce the amount of tritium discharged to sea from THORP are immobilisation of tritium in a solid waste form. Low active liquid effluent from THORP would be encapsulated in cement. Alternatively, the low active liquid waste from THORP could be put through an enrichment process that would reduce the volume of liquid waste. The enriched tritium liquid waste could then be encapsulated in cement and stored. Possible
90 Vol 3(2), Annex 98. 91 See infra., para 9.157-165. 92 Vol 3(2), Annex, 99, pp 524-5. 93 Vol 2, Appendix 8. 236
enrichment techniques are: distillation of water; cryogenic distillation; electrolysis; and hydrogen/water chemical exchange.”94 Carbon-14: “Carbon-14 is removed from spent caustic scrubber liquor as a barium carbonate precipitate that is forwarded to the Waste Encapsulation Plant for encapsulation in cement grout and stored until ultimately disposed of. The process could be improved by increasing the efficiency of the barium carbonate plant by introducing an ultra-filtration stage.”95 Cobalt-60: “Abatement of the discharge of cobalt-60 in liquid discharges from THORP could be achieved by re-routing purge water from the fuel ponds to the Site Ion Exchange Plant (SIXEP) via the Fuel Handling Plant. Another possibility is to use in the pond an ion exchange pre-coat material on an existing particulate filter.”96 Ruthenium-106: “Ruthenium-106 has a half-life of 1 year. The amounts of ruthenium-106 discharged to sea could be reduced by storing spent fuel for longer times in the THORP storage ponds and storing medium active concentrates for longer periods.”97 Iodine-129: “Iodine-129 in liquid discharges could be reduced by precipitating it as a metal iodide from the caustic scrubber liquor by adding a silver salt. The silver iodide precipitate could then be separated from the liquor by filtration, encapsulated in cement and stored for eventual disposal.”98 Strontium-90: “Improving the effectiveness of the EARP plant would reduce the amounts of strontium-90 discharged into the sea.”99 Caesium-137: “Improving the effectiveness of the EARP plant would reduce the amounts of caesium-137 discharged into the sea. Caesium-137 in the THORP spent fuel pond water could be removed by ion exchange methods. An ion exchange material could be added to the filters that are currently used in the pond to remove solid material; ion exchange units could be installed in the pond; or a new ion exchange plant could be built to treat the water from the pond. The ion exchange material containing the caesium-137 could then be encapsulated in cement grout. Transferring the THORP spent fuel pond water to SIXEP could reduce the amount of caesium-137 discharged to the sea.”100 Plutonium and americium-241: “Improving the efficiency of the EARP plant can best reduce the discharges of plutonium isotopes and americium-241 from THORP.”101
Similar conclusions are reached in relation to aerial discharges from THORP. Dr Barnaby concludes:
94 Ibid, p 418-9. 95 Ibid, p 419. 96 Ibid. 97 Ibid. 98 Ibid, pp 419-20. 99 Ibid, p 420. 100 Ibid. 101 Ibid, para . 237
“In conclusion, liquid and aerial discharges are considerably higher than necessary if the best available knowledge and technology were used. The best available knowledge and technology are not being used because of cost, including the costs of installing available technology and of conducting the required research and development to develop new technology.”102
9.121. In relation to the question of cost, two points may be made. The first is that Article 194(3)(a) of UNCLOS does not state that the obligation to minimize “releases to the fullest possible extent” is limited by cost considerations.
9.122. The second point is that it is not sufficient merely to allege cost considerations as a reason for not applying more environmentally beneficial technologies. As the European Commission’s 2000 Communication on the precautionary principle states: “The measures envisaged must produce an overall advantage as regards reducing risks to an acceptable level. Examination of the pros and cons cannot be reduced to an economic cost-benefit analysis. It is wider in scope and includes non- economic considerations.”103
9.123. The United Kingdom does not appear to have required that alternative technologies be considered, or required that a cost-benefit analysis in relation to the use of alternative technologies that would reduce releases to the marine environment. Neither the Environment Agency’s Proposed Decision on MOX Justification104 nor the Ministers’ Decision of 3 October 2001105 address the question of alternative technologies or indicate that any consideration was given to the possible use of any such technologies. Amongst its 55 Questions addressed to the United Kingdom following the ITLOS Order of 3 December 2001, Question 49 asked: “What technical options have been considered to reduce discharges from the MOX and THORP plants to zero? Why have these options not been put in place?”106
The two questions posed were not answered.
9.124. Question 50 asked inter alia: “Why is BNFL not using (or proposing to use) all the retention technologies planned for Rokkasho-Mura [the proposed Japanese MOX production facility]?”
The United Kingdom answered: “The technologies and arrangements to be in place for the reprocessing facility currently under construction at Rokkasho Mura in Japan are a matter for the operator of the plant and the relevant regulators in Japan. Some of the retention technologies used at the plant will be similar to those used at SMP.”107
102 Ibid, p 421. 103 Vol 3(2), Annex 84, p, 121-2 (para 6.3.4). 104 Vol 3(2), Annex 95. 105 Vol 3(2), Annex 92. 106 Vol 3(1), Annex 7, pp 83-4. 107 Ibid. 238
Once again, the question posed by Ireland is not answered in any meaningful way. It is reasonable to conclude from these two answers that no consideration was given to the use of alternative technologies which could reduce discharges to the Irish Sea and to the atmosphere to zero, or close to zero.
9.125. The PA Report and the ADL Report which were prepared for the purposes of “justifying” the MOX plant do not constitute a cost-benefit analysis as to the possibility of alternative technologies.108 Moreover, those reports have not been made available in a form which permits the reader to determine whether all the costs, including all the environmental costs, have been taken into account in reaching the conclusion that the MOX plant is economically justified. Ireland notes here that in its own documents the United Kingdom accepts that the MOX plant will never recoup the £470 million cost of its construction. This may now explain why BNFL (and the United Kingdom) are unwilling to address alternative technologies.
9.126. In sum, the United Kingdom has authorised the MOX plant on the basis of obsolete technologies designed in 1993 which do not meet current environmental standards. In so doing the United Kingdom has failed to meet its obligations under Article 194(3)(a) of UNCLOS.
5. The United Kingdom has failed to implement applicable international rules and standards to prevent, reduce and control pollution of the Irish Sea arising from the authorisation of the MOX plant
9.127. Article 213 of UNCLOS requires the United Kingdom to take measures “necessary to implement applicable international rules and standards established through competent international organisations or diplomatic conferences to prevent, reduce and control pollution of the marine environment from land-based sources”. In pursuing this claim Ireland must demonstrate that (1) there are international rules and standards which are applicable to prevent, reduce and control marine pollution which could arise from land- based sources of pollution associated with the authorisation of the MOX plant, and (2) that the United Kingdom has failed to implement those rules and standards.
9.128. As to (1), the earlier section of this Chapter has shown that there are a number of international rules and standards which are applicable to the MOX and THORP plants, which are the relevant land-based sources of pollution.
9.129. The applicable international rules include those set forth in the 1992 OSPAR Convention, together with decisions and recommendations adopted by the OSPAR Commission, and the requirements of the 1998 Sintra Ministerial Declaration. The applicable international rules upon which Ireland relies include: a. The United Kingdom’s obligation pursuant to Article 2(1)(a) of the 1992 OSPAR Convention to “take all possible steps to prevent and eliminate pollution” and to “restore marine areas which have been adversely affected”. b. The United Kingdom’s obligation under Article 2(2) of the 1992 OSPAR Convention to apply the precautionary principle and “best available techniques” and “best environmental practices”, in accordance with the criteria set forth in Appendix 1 of the Convention.
108 See Chapter 4, paras 4.11 et seq. 239
c. The United Kingdom’s obligation under Article 3 of the 1992 OSPAR Convention to take “all possible steps to prevent and eliminate pollution from land-based sources in accordance with the provisions of the Convention”, including the requirements of Annex I of the Convention (1) to use best available techniques and best environmental practices, including clean technology where appropriate, and (2) to take preventive measures to minimise the risk of pollution caused by accidents. d. The United Kingdom’s obligation pursuant to the 1998 Sintra Ministerial Declaration (1) to achieve “progressive and substantial reductions of discharges, emissions and losses of radioactive substances”, and (2) to ensure “that discharges, emissions and losses of radioactive substances are reduced by the year 2020 to levels where the additional concentrations in the marine environment above historic levels, resulting from such discharges, emissions and losses, are close to zero.” e. The United Kingdom’s obligation pursuant to OSPAR Commission Decision 2000/1 to review as a matter of priority current authorisations for discharges or releases of radioactive substances from nuclear reprocessing facilities with a view inter alia (1) to implement the non-reprocessing option (for example dry storage) for spent nuclear fuel management at appropriate facilities, and (2) to take preventive measures to minimise the risk of pollution by accidents.” f. The United Kingdom’s obligation pursuant to OSPAR Commission Decision 2001/1 to complete its “current review of authorisations for discharges or releases of radioactive substances from nuclear reprocessing facilities … as a matter of urgency”. g. The United Kingdom’s obligation to provide certain information on the MOX plant pursuant to Article 9 of the 1992 OSPAR Convention; h. The United Kingdom’s obligations under customary law, including in particular the obligation to co-operate with and provide information to Ireland, and to participate in good faith consultations.
9.130. The applicable international standards include: a. The United Kingdom’s commitment under paragraph 22.5(c) of Agenda 21 not to “promote or allow the storage or disposal of high-level, intermediate level and low-level radioactive wastes near the marine environment” unless it has determined that “scientific evidence … shows that such storage or disposal poses no unacceptable risk to people and the marine environment or does not interfere with other legitimate uses of the sea, making, in the process of consideration, appropriate use of the concept of the precautionary approach”.109 b. The United Kingdom’s commitment under the 1995 Global Programme of Action (1) to ensure “proper planning, including environmental impact assessment, of safe and environmentally sound management of radioactive waste, including emergency procedures, storage, transportation and disposal, prior to and after activities that generate such waste”, and (2) to use “best available techniques and best environmental practice, for the reduction and/or
109 The commitment is restated in the 1995 Global Programme of Action, at para 111, vol 3(2), Annex 83. 240
elimination of inputs of radioactive substances to the marine and coastal environment for the purpose of preventing and eliminating pollution of the marine and coastal environment”.110
9.131. As to (2), the United Kingdom has failed to implement the international standards and rules in the following ways. With respect to Article 2(1)(a) of the 1992 OSPAR Convention (para 9.129, point (a)), the acts and omissions leading to the failure to “take all possible steps to prevent and eliminate pollution” are set out above, and are repeated here. Additionally, this provision requires the United Kingdom to take all possible steps to “restore marine areas which have been adversely affected”.
9.132. In the case of the Irish Sea, which is amongst the most radioactively contaminated marine environments any where in the world, the United Kingdom has, in authorising the MOX plant and extending the life of the THORP plant (without the benefit of a prior environmental impact assessment of the THORP plant), committed itself to further material discharges of radioactive substances, contrary to its commitment to significantly and progressively reduce discharges and to reduce concentrations. Such actions are not consistent with the obligation to “restore” the marine environment, which means to return to something resembling its original condition.
9.133. With regard to Article 2(2) of the 1992 OSPAR Convention (para. 9.129(b) above), the acts and omissions leading to the failure to “apply the precautionary principle and “best available techniques” and “best environmental practices” are set out in paragraphs 9.115- 126 above. They apply equally in this respect, and give rise to a further violation of UNCLOS.
9.134. With regard to Article 3 and Appendix 1 of the 1992 OSPAR Convention (para. 9.129(c) above), the acts and omissions leading to the failure to require the use of best available techniques and best environmental practices are set out in paragraphs 9.115-126 above. They apply equally here, and give rise to a further violation of UNCLOS. With regard to the obligation to take preventive measures to minimise the risk of pollution caused by accidents, the relevant acts and omissions of the United Kingdom are set out in paragraphs 9.92 to 9.104, above, and apply equally here.
9.135. With regard to the obligation pursuant to the 1998 Sintra Ministerial Declaration (para. 9.129(d) above), the acts and omissions leading to the failure to ensure that concentrations of radionuclides are reduced to “close to zero” by 2020 are set out above. They apply equally here, and give rise to a further violation of UNCLOS.
9.136. With regard to the obligation pursuant to OSPAR Commission Decision 2000/1 (para. 9.129(e) above), the United Kingdom has, in authorising the MOX plant, in effect extended the life and operation of the THORP plant. This has occurred without the benefit of any environmental impact assessment as to the consequences of additional or prolonged discharges from THORP (arising as a result of the authorisation of the MOX plant).
9.137. There is no material publicly available that indicates that the United Kingdom has reviewed current authorisations for discharges or releases of radioactive substances from THORP with a view to implement the non-reprocessing option and moving to dry storage. This is notwithstanding the fact that the United Kingdom enterprise which is contractually committed to reprocessing at THORP has called for an end to reprocessing at THORP and
110 Ibid, Annex 83, para 110. 241 a move to dry storage, which it considers to entail less than a quarter of the cost of reprocessing.111
9.138. Ireland invites the United Kingdom to make available to the Annex VII tribunal evidence demonstrating that it has properly and genuinely considered alternatives to nuclear reprocessing at THORP. This aspect is material to the MOX plant because without the THORP plant there could be no MOX plant.112 And without the MOX plant, the THORP plant would close earlier than it would with the MOX plant.
9.139. With regard to the obligation pursuant to OSPAR Commission Decision 2001/1 (para. 9.129(f) above), to complete its “current review of authorisations for discharges or releases of radioactive substances from nuclear reprocessing facilities … as a matter of urgency”. Ireland notes that as at the date of submission of this Memorial (13 months after the adoption of Decision 2001/1) the United Kingdom does not appear to have completed its review.
9.140. Ireland further notes that the decision to authorise the MOX plant (with consequential implications for new and additional discharges from the THORP facility) was taken prior to the completion of the review, or indeed the adoption of new discharge authorisations. It is therefore apparent that any new discharge authorisations will be premised upon, and established at such a level as to permit, the operation of the MOX plant and the extended operation of the THORP plant. This does not constitute “best environmental practise”. The proper approach, it is submitted, would have been to establish new discharge authorisations on the basis of a full and proper (and prior) assessment of the state of the Irish Sea and taking into account the need to give effect to the commitment to reduce concentrations of radionuclides in the Irish Sea to levels which are “close to zero” by 2020.
9.141. What the United Kingdom has instead done is to proceed to the authorisation of a new activity (the MOX plant) and an extended operation of an existing activity (the THORP plant), and to then proceed to the adoption of new authorisations of discharges which will be set at a level so as to permit the operation of both the MOX and THORP plant. This is plainly inconsistent with the requirements of UNCLOS, including in particular the requirement to take all necessary measures to reduce and control pollution, and to make use of best environmental practices.
9.142. With regard to the obligation in Article 9 of the OSPAR Convention (para. 9.129(g) above), the acts and omissions leading to the failure to provide environmental information requested by Ireland are set out in Chapter 4113 and in Ireland’s Statement of Claim and Memorial in the proceedings initiated under OSPAR in June 2001.114 Such acts and omissions are applicable here too, and give rise to a further violation of UNCLOS.
9.143. With regard to the United Kingdom’s obligations under other rules of international law (para. 9.129(h) above), the acts and omissions constituting a failure to co-operate with and provide information to Ireland, and to participate in good faith consultations, are set out in Chapter 8. They are here repeated, and give rise to a further violation of UNCLOS.
111 See Second Report of Gordon Mackerron, vol 2, Appendix 11. 112 See Chapter 2, para 2.63; Chapter 3, paras 3.3-6. 113 Paras 4.27 et seq. 114 Vol 3(1), Annex 72. 242
9.144. With regards to the failure to implement applicable international standards (para. 9.130(a) and (b) above), the acts and omissions giving amounting to a failure to implement the requirements of paragraph 22.5(c) of Agenda 21 are set out above. Those acts and omissions demonstrate that notwithstanding the standard set by Agenda 21, the United Kingdom has promoted and/or allowed the further storage and disposal of radioactive wastes near the marine environment without having first determined that “scientific evidence … shows that such storage or disposal poses no unacceptable risk to people and the marine environment or does not interfere with other legitimate uses of the sea” and, in so acting, has made no use of “the precautionary approach”.
9.145. With regard to the standards reflected in the 1995 Global Programme of Action, the United Kingdom has failed to ensure “proper planning”, in particular by failing to carry out a proper environmental impact assessment of the MOX plant, and no environmental impact assessment whatsoever of the consequences of the additional operation of the THORP plant, or the management of radioactive waste (arising from MOX and THORP), or the international transports which are related to the authorisation of the MOX plant. Moreover, the United Kingdom has failed to implement the standards relating to the use of “best available techniques and best environmental practice”.
VIOLATIONS OF THE OBLIGATION TO PREVENT POLLUTION FROM VESSELS
6. The United Kingdom has failed to take “all measures necessary” to “minimize to the fullest possible extent” pollution from vessels involved in transports of radioactive substances associated with the MOX plant
9.146. Article 194(3)(b) of UNCLOS requires the United Kingdom to take “all measures necessary” to minimize “to the fullest possible extent” pollution from vessels involved in the international transportation of radioactive substances associated with the operation of the MOX plant. It requires, in particular, measures for inter alia (a) preventing accidents, (b) dealing with emergencies, and (c) preventing unintentional discharges, and (d) regulating the design, construction, equipment, operation and manning of vessels.
9.147. For Ireland’s claim to succeed it needs to be shown that the measures applied by the United Kingdom to international transports of radioactive substances which are associated with or arise from the authorisation of the MOX plant are inadequate because they will not minimize pollution to “the fullest possible extent”.
9.148. The conditions under which international transports associated with the MOX plant are to take place are described in Chapter 2, at paragraphs 2.36 et seq. These international transports have attracted widespread concern, from a very large number of States.115 Ireland’s concerns relate to the measures which the United Kingdom may (or may not) have in place for dealing with an accident or other incident which may lead to a radiological release in the Irish Sea. Since Ireland has little information as to the measures which the United Kingdom has in place, in view of the United Kingdom’s persistent refusal to share such information with Ireland, or to involve Ireland in its planning, it is not in a position to offer any detailed comment on the adequacy of the United Kingdom’s arrangements.
115 Chapter 2, paras 2.43-9. 243
9.149. Indeed, it is the very failure of the United Kingdom to provide information to Ireland which gives rise to violations of Article 194(3)(b). In relation to measures for preventing accidents in and around the Irish Sea, Ireland would note that the United Kingdom has consistently refused to provide details of routings of ships carrying nuclear materials, even on a confidential basis. In order that Ireland may able to take appropriate measures to ensure that additional steps are taken to avoid accidents involving such hazardous cargoes it requires the United Kingdom to provide routeing and timetabling information beyond that which is presently provided. Ireland understands the need to ensure maximum confidentiality as to such information, and undertakes to take all steps necessary to protect confidentiality of such security-related matters.
9.150. In relation to measures for dealing with emergencies in and around the Irish Sea, the United Kingdom has failed to meet the standards required by UNCLOS because it has not engaged with Ireland in such a manner as to permit it to take precautionary and preventive steps to “minimize to the fullest possible extent” the radiological pollution which might arise from an emergency involving a vessel which is transporting nuclear materials in consequence of the authorisation of the MOX plant. These matters are addressed in further detail in Chapter 8116 and in the Statements of Captain Liam Kirwan117 and Mr Seamus McLoughlin.118
9.151. In relation to measures for preventing unintentional discharges in and around the Irish Sea, including from sabotage and terrorism, the United Kingdom has refused to provide details as to the conditions under which transports are taking place. This is described in further detail in Chapter 8. Ireland is therefore not in a position to know whether the United Kingdom is complying with, and will in future comply with, all measures required pursuant to the 1980 Convention on the Physical Protection of Nuclear Materials and other international instruments. It is not sufficient, in this regard, for the United Kingdom simply to declare that it is so complying. In view of the risks, which are recognised as being considerably heightened since the events of 11 September 2001, Ireland is entitled to know (under appropriate conditions of confidentiality) the conditions under which these escorts are taking place in and around the Irish Sea.
9.152. Similar considerations apply in relation to measures for regulating the design, construction, equipment, operation and manning of vessels involved in MOX and related transports in and around the Irish Sea. It is not sufficient, in this regard, for the United Kingdom simply to declare that it is complying with applicable international standards. Ireland is entitled to know (under appropriate conditions of confidentiality) the conditions of the vessels and manning under which these shipments are taking place in and around the Irish Sea.
116 Chapter 8, paras 8.238 et seq. and 8.110 et seq. 117 Vol 2, Appendix 8. 118 Vol 2, Appendix 12. 244
7. The United Kingdom has failed to ensure compliance by vessels flying its flag or of its registry with applicable international rules and standards, and has failed to ensure that vessels associated with MOX transports are prohibited from sailing were not in compliance with those rules and standards
9.153. Article 217(1) of UNCLOS requires the United Kingdom to ensure compliance by vessels flying its flag or of its registry with applicable international rules and standards for the “prevention, reduction and control of pollution” of the Irish Sea from vessels. Article 217(2) requires the United Kingdom to prohibit any such vessel from sailing if it would not be in compliance with such international rules and standards. To succeed in a claim relating to Article 217, Ireland must show (1) that there exist applicable international rules and standards for the prevention, reduction and control of pollution of the Irish Sea from vessels transporting radioactive substances in relation to the MOX plant, (2) such rules and standards are not being complied with by vessels involved in transports associated with the MOX plant, and (3) the United Kingdom has not prevented such vessels from sailing.
9.154. With regard to (1), the applicable international rules and standards for present purposes have been referred to in Chapter 8.
9.155. With regard to (2), in view of the United Kingdom’s refusal to share information with Ireland (even on a confidential basis), Ireland is not in a position to know whether the vessels involved in the transportation of MOX fuels and feedstocks are complying with applicable international rules and standards. The principles described above apply equally in respect of the obligations under Article 217 of UNCLOS, and the failure to share information with Ireland gives rise to a violation of these provisions.
9.156. With regard to (3), Ireland is similarly not in a position to know whether any vessels have sailed, and if so under what conditions. The United Kingdom has refused to provide information.
VIOLATIONS OF THE OBLIGATION TO PREVENT POLLUTION THROUGH THE ATMOSPHERE
8. The United Kingdom has failed to take measures “designed to minimize to the fullest possible extent” the release into the atmosphere of radioactive substances arising from the authorisation of the MOX plant
9.157. Article 194(3)(a) of UNCLOS requires that the measures to be taken by the United Kingdom to prevent pollution of the Irish Sea by releases into the atmosphere “shall include … those designed to minimize to the fullest possible extent” the release of “toxic, harmful or noxious substances, especially those which are persistent”, from land-based sources.
9.158. To succeed on this claim Ireland must show that the radioactive substances which will be released into the atmosphere from the MOX plant (and those discharges from the THORP plant which are related to the MOX plant) are (1) toxic or harmful or noxious, and (2) that the United Kingdom has not taken measures which are designed to minimize to the fullest possible extent such releases. 245
9.159. As to (1), there is no question but that radioactive substances fall within that category of substances which are toxic, harmful or noxious.119
9.160. As to (2), the approach set forth in relation to discharges directly to the marine environment from the MOX plant applies equally to releases into the atmosphere which may reach the Irish Sea.120 For the same reason, a State which has failed to inform itself as to the quantities of radioactive substances which will be released into the atmosphere (and which will in whole or in part reach the Irish Sea) as a result of the authorization of the MOX plant, cannot claim to have taken measures which are designed to “minimize to the fullest possible extent” the release of such substances. On this basis alone the United Kingdom has failed to meet the requirements of Article 194(3)(a) of UNCLOS.
9.161. The same analysis applied at paragraphs 9.116 et seq. above (in relation to pollution from land-based sources) applies here, and it is appropriate to enquire whether the releases could they have been further reduced.
9.162. The United Kingdom has provided very little information – pursuant to the 1993 Environmental Statement – as to the technologies and practices that are being used in the MOX plant. The 1993 Environmental Statement makes no mention of alternative technologies.121 And in the MOX authorisation process, no information has been made available as to the THORP technologies and practices, and their implications for releases into the atmosphere.
9.163. Here again, the evidence put forward by Ireland demonstrates that alternative technologies and practices are available and that aerial releases from the MOX and THORP plants could be further reduced, and significantly so.
9.164. In relation to the MOX plant, the Environmental Statement that has been prepared for a MOX facility in the United States allows comparison to be made. The Report by Dr Frank Barnaby compares the aerial discharges from the MOX plant at Sellafield with aerial discharges from the proposed US MOX facility. His conclusion is that on a comparative basis – per ton of MOX fuel produced – discharges from the MOX plant at Sellafield are 3.5 times greater than those of the proposed US facility. He concludes, on the basis of the figures provided in the respective environmental reports, that: “On these figures, the [US plant] is, per ton of MOX produced, much less polluting than [the Sellafield MOX plant].”122
9.165. In relation to the THORP plant, the Report of Dr Frank Barnaby indicates a range of technologies which are available to reduce aerial discharges from THORP. His Report identifies the annual aerial emissions from THORP.123 In relation to abatement technologies for aerial discharges the Report states: Tritium: “Abatement of aerial discharges of tritium could be achieved by absorption of tritium on metals; thermal oxidation; or the use of a catalyst followed by condensation to a liquid or by absorption on a solid absorber.
119 Supra, paras 9.69 et seq. 120 Supra., paras 9.112 et seq. 121 See Chapter 7, paras 7.66. Also Sheate Report, vol 2, Appendix 6. 122 Barnaby Report, vol 2, Appendix 8, p 422. 123 Ibid, p, 420-1. 246
Thermal/catalytic oxidation produces tritiated water vapour that could be removed by dehumidification using a condenser or solid absorber.” Iodine-129: “The amount of iodine-129 discharged into the air from THORP could be reduced installing a new scrubber plant; adding iodic acid to the fuel dissolvers; modifying the plant to re-route discharges from the THORP vessel ventilation system to the Dissolver Off-Gas scrubber; and providing solid absorbers to remove iodine-129 from THORP aerial discharges.” Krypton-85: Krypton-85 is given off when spent fuel is dissolved in THORP and is discharged into air without abatement. The gas could be separated from the aerial discharges by cryogenic separation in which krypton-85 is first separated from other gases in the aerial waste stream. The aerial waste stream is then cooled to low temperatures and liquefied. Krypton-85 is then separated from other inert gases, like argon and xenon, by cryogenic distillation. Krypton-85 could also be removed from the aerial waste stream by adsorption on to a solid matrix, like carbon or silica zeolites. Alternatively, an organic solvent could be used to separate krypton-85 from aerial waste streams.”
Dr Barnaby concludes: “[…] aerial discharges are considerably higher than necessary if the best available knowledge and technology were used. The best available knowledge and technology are not being used because of cost, including the costs of installing available technology and of conducting the required research and development to develop new technology.”124
9.166. In sum, the United Kingdom has authorised the MOX plant on the basis of obsolete technologies designed in 1993 which do not meet current environmental standards. In so doing the United Kingdom has failed to meet its obligations under Article 194(3)(a) of UNCLOS.
9. The United Kingdom has failed to adopt laws and regulations and take other measures necessary “to implement applicable international rules and standards” to prevent, reduce and control pollution of the Irish Sea from or through the atmosphere
9.167. Article 222 of UNCLOS requires the United Kingdom to adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organisations or diplomatic conferences to prevent, reduce or control pollution of the marine environment from or through the atmosphere. It develops the requirements of Article 212 of UNCLOS.
9.168. As with the claim in relation to Article 213 (pollution from land-based sources), Ireland must show that (1) there are international rules and standards which are applicable to prevent, reduce and control pollution of the Irish Sea as a result of releases into the atmosphere from the MOX plant and from the THORP plant (in relation to MOX), and (2) that the United Kingdom has failed to implement those rules and standards.
9.169. The same analysis applies as in respect of Article 213, and the same conclusions are reached. There are a number of international rules and standards which are applicable to the MOX and THORP plants which relate to atmospheric releases, and the United
124 Ibid, p 421. 247
Kingdom has not implemented them, either properly or at all. The approach applied to Article 213 is equally applicable to Article 222 (in respect of aerial discharges). It includes the United Kingdom’s failure to implement Articles 2(1)(a), 2(2), 3 and 9 of the 1992 OSPAR Convention, as well as the commitments reflected in the 1998 Sintra Ministerial Declaration, Agenda 21 and the 1995 Global Programme of Action, and the requirements of OSPAR Commission Decisions 2000/1 and 2001/1, as well as the rules of customary law relating to co-operation, information exchange and consultation.125 On this approach the United Kingdom has failed to comply with its obligations under Article 222 of UNCLOS.
E. SUMMARY AND CONCLUSIONS
9.170. The violations by the United Kingdom of the substantive requirements of UNCLOS are summarised at paragraph 9.2 of this Chapter.
9.171. The relief sought by Ireland is set out in Chapter 10. Ireland is seeking from the Tribunal an order that the operation of the MOX plant and the international movement of radioactive materials into and out of the United Kingdom related to the operation of the MOX plant (including those parts of THORP operations related to the MOX plant) be prohibited until the United Kingdom has brought itself into compliance with the substantive requirements of UNCLOS, as set forth in this Chapter. This is in addition to compliance with requirements relating to environmental impact assessment (chapter 7) and co-operation (chapter 8). The continued operation of the MOX plant is internationally unlawful, and will continue to be internationally unlawful until such time as the United Kingdom brings itself into compliance. Ireland is calling upon the Tribunal to order the suspension of the operation of the MOX plant.
9.172. The relief sought necessarily encompasses a request to the Tribunal to order that no reprocessing be undertaken at the THORP plant (which is intended to prepare feedstock for the operation of the MOX plant, or which would otherwise not occur but for the authorisation of the MOX plant), until the United Kingdom is in compliance with its obligations, as identified in this chapter and in Chapters 7 and 8.
9.173. To bring itself into compliance with the substantive provisions of UNCLOS, the United Kingdom must first cause to be prepared a proper environmental impact assessment, satisfying all the requirements identified in Chapter 7.126 Until such an environmental impact assessment has been prepared the United Kingdom cannot be said to have taken all measures necessary to prevent pollution of the Irish Sea, or to cause damage to Ireland, or to ensure that pollution arising from the MOX plant does not spread beyond the areas over which it exercises sovereign rights, or to minimize to the fullest possible extent pollution from the MOX and THORP plants, or to have implemented applicable international rules and standards to prevent such pollution.
9.174. Once it has ensured the preparation of an adequate environmental impact assessment – and placed itself in a position to know what the environmental consequences associated with the authorisation of the MOX plant will be – the United Kingdom will then
125 See Chapter 8, paras 8.42 et seq. 126 See Chapter 7, para 7.81. 248 be in a position to meet its substantive UNCLOS obligations. Those require it to demonstrate that it has: 1. “taken all measures consistent with the 1982 Convention that are necessary” to prevent, reduce and control pollution of the Irish Sea; 2. taken “all measures necessary” to ensure that the MOX plant does not cause damage by pollution to Ireland and its environment; 3. taken “all measures necessary” to ensure that pollution from the MOX plant “does not spread beyond the areas” where the United Kingdom exercises sovereign rights; 4. taken measures designed to minimize “to the fullest extent possible” the release of radioactive substances arising from the authorisation of the MOX plant, including by the use of best available technologies and best environmental practices; 5. implemented applicable international rules and standards to prevent, reduce and control pollution of the Irish Sea arising from the authorisation of the MOX plant, including the commitment to reduce concentrations of radionuclides in the Irish Sea to “close to zero”; 6. taken “all measures necessary” to “minimize to the fullest possible extent” pollution from vessels involved in transports of radioactive substances associated with the MOX plant; 7. ensured compliance by vessels flying its flag or of its registry with applicable international rules and standards, and ensuring that vessels associated with MOX transports are prohibited from sailing when not in compliance with those rules and standards; 8. taken measures “designed to minimize to the fullest possible extent” the release into the atmosphere of radioactive substances arising from the authorisation of the MOX plant; and 9. adopted laws and regulations and take other measures necessary “to implement applicable international rules and standards” to prevent, reduce and control pollution of the Irish Sea from or through the atmosphere. 249
PART III:
THE RELIEF SOUGHT 250 251
CHAPTER 10
THE ROLE OF THE TRIBUNAL AND THE RELIEF SOUGHT BY IRELAND
10.1. The Tribunal has two distinct functions in the present case. One is to make a determination as to compliance by the United Kingdom with its UNCLOS obligations. That relates to paragraphs 1-4 of the Statement of Relief Sought. The other function is to decide upon Ireland’s application for an Order in the terms of paragraph 5 of the Statement of Relief Sought, which reads as follows: “That the United Kingdom shall refrain from authorizing or failing to prevent (a) the operation of the MOX plant and/or (b) international movements of radioactive materials into and out of the United Kingdom related to the operation of the MOX plant or any preparatory or other activities associated with the operation of the MOX plant, in particular the reprocessing of spent fuel at the THORP plant for the purposes of the operation of the MOX plant, until such time as (1) there has been carried out a proper assessment of the environmental consequences arising directly or indirectly from impact of the operation of the MOX plant and associated facilities as well as related international movements of radioactive materials, and (2) it is demonstrated that the operation of the MOX plant and associated facilities and related international movements of radioactive materials will result in the deliberate discharge of no radioactive materials, including wastes, directly or indirectly into the marine environment of the Irish Sea, and (3) there has been agreed and adopted jointly with Ireland a comprehensive strategy or plan to prevent, contain and respond to terrorist attack on the MOX plant and associated facilities and international movements of radioactive waste associated with the plant”
10.2. The nature of the United Kingdom’s obligations is relevant to both functions. The UNCLOS imposes procedural obligations upon States. As has been explained in chapters 7, 8 and 9, those obligations include, in the present case, the obligations upon the United Kingdom to carry out a proper and complete environmental impact assessment, to engage in consultations with Ireland over the planned development of the Sellafield site consequent upon the MOX authorisation (and over the associated shipments), and to take all the steps required by UNCLOS to prevent pollution of the Irish Sea.
10.3. The environmental impact assessment, and the consultations in so far as they relate to planned activities, can only be carried out in advance of the activities to which they relate. If they are not carried out in advance, they have no use. They cannot amount to “a genuine invitation, extended with a receptive mind, to give advice.”127 .
10.4. The United Kingdom’s refusal to fulfil its obligations prior to the commissioning of the MOX plant amount to an abrogation of those obligations.
127 See paragraph 8.78. 252
10.5. Procedural obligations are important. They are key elements in the legal regimes applied not only in environmental matters, but also in other contexts such as military and security co-operation, non-proliferation and arms control. States are not free to abandon those obligations, even if they believe that the abandonment will cause no significant physical or economic harm and even if they are correct in that belief. Nor is compensation in the event of a breach of the procedural obligation an adequate substitute. States may not buy their way out of their procedural obligations.
THE RETROSPECTIVE DETERMINATIONS
10.6. While the likelihood of material harm might be relevant to decisions on the availability of provisional measures, it cannot have that effect in the present context. If, as Ireland submits, the United Kingdom has violated its procedural obligations by proceeding to authorise and operate the MOX plant prior to the fulfilment of its procedural obligations, the extent to which Ireland has already suffered material harm is of no relevance. The procedural obligation was either fulfilled, or it was not.
10.7. This was clearly recognised by the Lac Lanoux tribunal, which stated that “sanctions can be applied in the event, for example, of an unjustified breaking off of the discussions, abnormal delays, disregard of the agreed procedures, systematic refusals to take into consideration adverse proposals or interests, and, more generally, in cases of violation of the rules of good faith.”128 The finding of a breach flows immediately from the failure to fulfil the procedural obligation.
10.8. Accordingly, the Tribunal has the straightforward task of determining whether the United Kingdom’s conduct did or did not fulfil its obligations under the UNCLOS. It is Ireland’s submission that the United Kingdom did not fulfil those obligations. That has been explained above, in chapters 7, 8 and 9.
10.9. That submission is, it must be emphasised, not directed at the obtaining of something in the nature of a reprimand of the United Kingdom. The request for a declaration that the United Kingdom did not fully comply with its obligations is to be seen primarily in the context of the future, not of the past. It is aimed at securing, by the most effective means, an indication of how the United Kingdom might approach the fulfilment of its obligations in the future.
10.10. It is plainly not appropriate, or perhaps even possible, for an UNCLOS Annex VII Tribunal to make technical judgments as to what specific scientific information should or should not be passed to Ireland in the future. It is very difficult to anticipate, except in the most general of terms, the kinds of information that might be needed. Nor can it easily address the underlying practical basis of co-operation, which is as much a matter of attitude as it is of actions.
10.11. Ireland believes, however, that the current failures of assessment and co-operation flow in large measure from different perceptions of the nature and scope of Ireland’s entitlements to information and to co-operation from the United Kingdom. British officials, following the guidelines set by the British Government, release to Ireland only certain categories of information – essentially, that which is publicly available to all. The creation
128 24 ILR p 101 at p 128; reprinted in vol 3(1), Annex 80, p 489 at p 516. 253 of a framework for co-operation itself is not a major problem. Ireland believes that, were there to be agreement on the information to which Ireland is entitled, the necessary co- operation could be secured relatively easily.
10.12. The most efficient and effective way in which the Tribunal can assist the Parties to understand and agree upon the scope of the United Kingdom’s duties is for it to examine the concrete details of the past dealings between the two States and to focus upon the deficiencies that the record evidences. Characterisation by the Tribunal of specific episodes and instances of non-fulfilment of UNCLOS duties will constitute a clear indication of the nature and extent of those duties. It is to this end that Ireland has applied for a declaration in respect of past breaches of the Convention.
THE PROSPECTIVE ORDER
10.13. As far as the prospective Order sought in paragraph 5 of the Statement of Relief Sought is concerned, the request in paragraph 5 identifies three conditions that must be met before the authorization and operation of the MOX plant and associated facilities and associated shipments: i) completion of an adequate environmental impact assessment; ii) demonstration that there will be no deliberate discharges of radioactive materials into the Irish Sea; and iii) agreement with Ireland upon a plan to prevent, contain and respond to terrorist attack on the MOX plant and associated facilities or associated shipments.
10.14. Ireland considers that those preconditions are the minimum essential procedural safeguards stipulated by the UNCLOS in order to protect and preserve the marine environment, and other interests of Ireland as a coastal State. That is why a specific Order is sought in relation to them.
THE RELIEF SOUGHT
10.15. For these reasons, Ireland requests the arbitral tribunal to order and declare: 1) That the United Kingdom has breached its obligations under Articles 192 and 193 and/or Article 194 and/or Article 207 and/or Articles 211 and 213 of UNCLOS in relation to the authorisation of the MOX plant, including by failing to take the necessary measures to prevent, reduce and control pollution of the marine environment of the Irish Sea from (1) intended discharges of radioactive materials and or wastes from the MOX plant and additional discharges from the THORP plant arising as a consequence of the operation of the MOX plant, and/or (2) accidental releases of radioactive materials and/or wastes from the MOX and THORP plants and/or international movements associated with the MOX and THORP plants, and/or (3) releases of radioactive materials and/or wastes from the MOX and THORP plants and/or international movements associated with the MOX and THORP plants resulting from terrorist act; 2) That the United Kingdom has breached its obligations under Articles 192 and 193 and/or Article 194 and/or Article 207 and/or Articles 211 and 213 of UNCLOS in relation to the authorisation of the MOX plant by failing (1) properly or at all to assess the risk of terrorist attack on the MOX plant and 254
associated facilities on the Sellafield site or on international movements of radioactive material associated directly or indirectly with the MOX plant, and/or (2) properly or at all to prepare a comprehensive response strategy or plan to prevent, contain and respond to terrorist attack on the MOX plant and associated facilities on the Sellafield site or on international movements of radioactive waste associated with the plant; 3) That the United Kingdom has breached its obligations under Articles 123 and 197 of UNCLOS in relation to the authorisation of the MOX plant, and has failed to co-operate with Ireland in the protection of the marine environment of the Irish Sea inter alia by refusing to share information with Ireland and/or refusing to carry out a proper environmental assessment of the direct and indirect impacts on the marine environment of the MOX plant and associated activities and/or proceeding to authorise the operation of the MOX plant whilst proceedings relating to the settlement of a dispute on access to information were still pending; 4) That the United Kingdom has breached its obligations under Article 206 of UNCLOS in relation to the authorisation of the MOX plant, including by a) failing, by its 1993 Environmental Statement, properly and fully to assess the direct and indirect potential effects of the operation of the MOX plant and associated facilities on the marine environment of the Irish Sea; and/or b) failing, since the publication of its 1993 Environmental Statement, to assess the direct and indirect potential effects of the operation of the MOX plant and associated facilities on the marine environment by reference to the factual and legal developments which have arisen since 1993, and in particular since 1998; and/or c) failing to assess the potential effects on the marine environment of the Irish Sea of international movements of radioactive materials to be transported to and from Sellafield and relating directly or indirectly to the operation of the MOX plant; and/or d) failing to assess the risk of potential effects on the marine environment of the Irish Sea arising from terrorist act or acts on the MOX plant and associated facilities or on international movements of radioactive material associated directly and indirectly with the operation of the MOX plant. 5) That the United Kingdom shall refrain from authorizing or failing to prevent (a) the operation of the MOX plant and/or (b) international movements of radioactive materials into and out of the United Kingdom related to the operation of the MOX plant or any preparatory or other activities associated with the operation of the MOX plant, in particular the reprocessing of spent fuel at the THORP plant for the purposes of the operation of the MOX plant, until such time as (1) there has been carried out a proper assessment of the environmental consequences arising directly or indirectly from the operation of the MOX plant and associated facilities as well as related international movements of radioactive materials, and (2) it is demonstrated that the operation of the MOX plant and associated facilities and related international movements of radioactive materials will result in the deliberate discharge of no radioactive materials, including wastes, directly or indirectly into the marine environment of the Irish Sea, and (3) there has been agreed and adopted jointly with Ireland a comprehensive strategy or plan to prevent, contain and respond to terrorist attack on the MOX plant and associated 255
facilities and international movements of radioactive waste associated with the plant; 6) That the United Kingdom pays Ireland’s costs of the proceedings.
10.16. As provided by Paragraph 42 of its Statement of Claim, Ireland reserves the right to supplement and/or amend its Claim and the relief sought as necessary and to make such other requests from the Arbitral Tribunal as may be necessary to preserve its rights under UNCLOS. 256 257
LIST OF ANNEXES 258 259
VOLUME II
REPORTS AND STATEMENTS COMMISSIONED BY THE RPII
List of Contributors...... v 1 Irish Sea Fisheries – Dr Paul Connolly...... 1 2 Radionuclides Discharged into the Irish Sea: Sources, Distributions and Long-term Ecosystem Behaviour – Professor Brit Salbu...... 107 3 Opinion on Low Dose Effects of Radiation – Dr Carmel Mothersill ...... 159 4 Artificial Radioactivity in the Marine Environment: Burden of Various Seas Regions – Dr Hartmut Nies ...... 177 5 Genetic Risks from Low Doses of Ionising Radiation – Professor Howard L. Liber ...... 189 6 Review of BNFL Environmental Statement for the Sellafield MOX Plant – Mr William Sheate ...... 199 7 A Review of the Oceanography of the Irish Sea – Dr Michael Hartnett ...... 367 8 Liquid and Aerial Discharges from the Sellafield MOX Plant and THORP – Dr Frank Barnaby ...... 397 9 Statement of Captain Liam Kirwin...... 433 10 Report on Commercial Confidentiality and the SMP Plant – Mr Gordon MacKerron ...... 437 11 Reply to the UK Counter-Memorial – Mr Gordon MacKerron ...... 523 12 Report of the Irish Marine Surveyors’ Office – Seamus McLoughlin...... 555 260 261
VOLUME III: ANNEXES
[Part One: Annexes 1–80]
A. DOCUMENTS RELATED TO UNCLOS PROCEEDINGS
1. Ireland’s Amended Statement of Claim, 1982 UNCLOS – Annex VII Arbitration, 21 January 2002 ...... 3 2. Explanatory Note on Amended Statement of Claim, 21 March 2002...... 27 3. ITLOS Order dated 3 December 2001...... 29 4. Agreed Minutes of the Meeting between the Parties, 11 December 2001 ...... 51 5. Report of Ireland to ITLOS, 17 December 2001 ...... 61 6. UNCLOS Annex VII Arbitral Tribunal Order No.1, 2 July 2002 ...... 65 7. Questions posed by Ireland and the United Kingdom’s response subsequent to the Tribunal’s Order of 3 December 2001 ...... 67
B. CORRESPONDENCE BETWEEN THE PARTIES
1. Correspondence prior to the ITLOS hearing 8. Submission to Copeland Borough Council, Cumbria, on Proposed MOX Plant, 1994...... 89 9. Submission of Ireland on the Proposed MOX Plant, 4 April 1997 (1st Round Consultation)...... 95 10. Letter from Mr John Battle, MP, Department of Trade & Industry (DTI), UK to Mr Joe Jacob, TD, Minister for State, Ireland, 1 December 1997...... 99 11. Submission of Ireland on the Proposed MOX Plant, 16 March 1998 (2nd Round Consultation)...... 103 12. Letter from Mr Joe Jacob, TD, Minister for State, Ireland, to Mr John Battle, MP, DTI, UK, 31 March 1998...... 107 13. Letter from Mr John Battle, MP, DTI, UK, to Mr Joe Jacob, TD, Minister for State, Ireland, 19 May 1998 ...... 109 14. Letter from Mr Joe Jacob, TD, Minister for State, Ireland, to Mr John Battle, MP, DTI, UK, 1 July 1998...... 111 262
15. Letter from Mr John Battle, MP, DTI, UK, Mr to Joe Jacob, TD, Minister for State, Ireland, 21 July 1998...... 113 16. Letter from Mr Joe Jacob TD, Minister for State, Ireland to Department of the Environment, Transport and the Regions (DETR), UK, 30 July 1999...... 115 17. Letter from Mr Michael Meacher MP, Minister for the Environment, DETR, United Kingdom to Mr Joe Jacob TD, Minister for State, Ireland, 22 October 1999 ...... 123 18. Letter from Mr Liam Daly, Department of Public Enterprise (DPE), Ireland to Mr Steven Brown, DETR, UK, 18 November 1999 ...... 125 19. Letter from Mr Steven Brown, DETR, UK to Mr Liam Daly, DPE, Ireland, 17 December 1999 ...... 127 20. Letter from Mr Joe Jacob TD, Minister for State, Ireland to Mr John Prescott MP, Secretary of State for DETR, UK, 23 December 1999...... 129 21. Letter from Ms Helen Liddle MP, Minister of State, DTI, UK, to Mr Joe Jacob TD, Minister for State, Ireland, 17 February 2000...... 135 22. Letter from Mr Michael Meacher MP, Minister for the Environment, DETR, UK to Mr Joe Jacob TD, Minister for State, Ireland, 9 March 2000...... 137 23. Letter from Mr Liam Daly, DPE, Ireland to Mr Richard Wood, DETR, UK, 25 May 2000 ...... 139 24. Letter from Mr Richard Wood, DETR, UK to Mr Liam Daly, DPE, Ireland, 27 October 2000...... 143 25. Letter from Mr Joe Jacob TD, Minister for State, Ireland to Mr Michael Meacher, M.P., Minister for the Environment, DETR, UK, 9 February 2001...... 145 26. Letter from Mr Michael Meacher MP, DETR, UK to Mr Joe Jacob, TD, Minister for State, Ireland, 21 May 2001 ...... 147 27. Letter from Mr Joe Jacob TD, Minister for State, Ireland to Ms Claire Herdman, DETR, UK, 22 May 2001 ...... 149 28. Letter from Agent for Ireland to Mr Richard Wood, DEFRA, UK, 15 June 2001 ...... 153 29. Letter from Ms Renee Dempsey, DPE, Ireland to Mr Richard Wood, DEFRA, UK, 7 August 2001 ...... 155 30. Letter from Agent for Ireland to Agent for the United Kingdom, 27 August 2001...... 157 31. Letter from Mr Richard Wood, DEFRA, UK to Ms Renee Dempsey, DPE, Ireland, 5 September 2001 ...... 159 32. Letter from the Agent for the United Kingdom to the Agent for Ireland, 13 September 2001(1) – reply to letter dated 27 August 2001...... 161 263
33. Letter from the Agent for the United Kingdom to the Agent for Ireland, 13 September 2001(2) – re commercial confidentiality ...... 163 34. Letter from Mr Joe Jacob T.D., Minister for State, Ireland to Ms Margaret Beckett M.P, Secretary of State for DEFRA, UK, 16 October 2001...... 165 35. Letter from Ms Margaret Beckett M.P., Secretary of State for DEFRA, UK to Mr Joe Jacob TD, Minister for State, Ireland, 18 October 2001 ...... 169 36. Letter from Mr Joe Jacob TD, Minister for State, Ireland to Ms Margaret Beckett MP, Secretary of State for DEFRA, UK, 23 October 2001...... 171 37. Letter from Ms Margaret Beckett MP, Secretary of State for DEFRA, UK to Mr Joe Jacob TD, Minister for State, Ireland, 24 October 2001 ...... 173 38. Letter from Mr Joe Jacob TD, Minister for State, Ireland to Ms Margaret Beckett MP, Secretary of State for DEFRA, UK, 25 October 2001...... 175 39. Letter from Mr Joe Jacob TD, Minister for State, Ireland to Ms Margaret Beckett MP, Secretary of State for DEFRA, UK, 30 October 2001...... 177 40. Letter from Mr Joe Jacob TD, Minister for State, Ireland to Ms. Margaret Beckett MP, Secretary of State for DEFRA, UK, 6 November 2001...... 179 41. Letter from Ms. Margaret Beckett MP, Secretary of State for DEFRA, UK, to Mr Joe Jacob TD, Minister for State, Ireland, 15 November 2001 ...... 181 42. Letter from the Agent for Ireland to ITLOS, 21 November 2001 ...... 183 43. Letter from the Agent for the United Kingdom to ITLOS, 23 November 2001 ...... 207
2. Correspondence following the ITLOS Order, 3 December 2001 44. Letter from the Agent for Ireland to the Agent for the United Kingdom, 5 December 2001...... 209 45. Letter from the Agent for the United Kingdom to the Agent for Ireland, 7 December 2001 ...... 219 46. Letter from the Agent for the United Kingdom to the Agent for Ireland, 17 December 2001...... 221 47. Letter from the Agent for the United Kingdom to the Agent for Ireland, 1 February 2002...... 233 48. Letter from the Agent for Ireland to the Agent for the United Kingdom, 1 February 2002...... 243 49. Letter from the Agent for the United Kingdom to the Agent for Ireland, 6 February 2002...... 247 264
50. Letter from the Agent for Ireland to the Agent for the United Kingdom, 7 February 2002...... 249 51. Letter from the Agent for Ireland to the Agent for the United Kingdom, 15 February 2002...... 251 52. Letter from the Agent for the United Kingdom to the Agent for Ireland, 6 March 2002...... 253 53. Letter from the Agent for Ireland to the Agent for the United Kingdom, 11 March 2002...... 255 54. Letter from the Agent for the United Kingdom to the Agent for Ireland, 15 March 2002...... 257 55. Letter from the Agent for Ireland to the Agent for the United Kingdom Regarding Ireland’s Amendment to the Statement of CLaim, 21 March 2002...... 259 56. Letter from the Agent for the United Kingdom to the Agent for Ireland, 21 March 2002 re draft Rules of Procedure for Annex VII, UNCLOS Tribunal ...... 261 57. Letter from the Agent for the United Kingdom to the Agent for Ireland regarding information requested by Ireland, 21 March 2002 ...... 269 58. Letter from the Agent for Ireland to the Agent for the United Kingdom, 22 March 2002...... 281 59. Letter from the Agent for Ireland to the Agent for the United Kingdom, 27 March 2002...... 283 60. Letter from the Agent for the United Kingdom to the Agent for Ireland, 11 April 2002...... 287 61. Letter from the Agent for the United Kingdom to the Agent for Ireland, 19 April 2002...... 289 62. Letter from the Agent for Ireland to the Agent for the United Kingdom, 9 May 2002...... 293 63. Letter from the Agent for the United Kingdom to the Agent for Ireland, 17 May 2002 (1) regarding the United Kingdom’s offer to meet...... 297 64. Letter from the Agent for the United Kingdom to the Agent for Ireland, 17 May 2002 (2) regarding Shipment from Japan ...... 299 65. Letter from the Agent for the United Kingdom to the Agent for Ireland, 17 May 2002 (3) regarding undertaking given to ITLOS and shipment from Japan...... 301 66. Letter from the Agent for Ireland to the Agent for the United Kingdom, 20 June 2002...... 303 67. Letter from the Agent for Ireland to the Agent for the United Kingdom, 3 July 2002...... 307 68. Letter from the Agent for the United Kingdom to the Agent for Ireland, 5 July 2002 ...... 321 265
69. Letter from the Agent for Ireland to the Agent for the United Kingdom, 15 July 2002...... 323 70. Letter from the Agent for Ireland to the Agent for the United Kingdom, 15 July 2002...... 325 71. Letter from the Agent for Ireland to the Agent for the United Kingdom, 16 July 2002...... 327
C. IRELAND’S SUBMISSION TO THE OSPAR TRIBUNAL
72. Ireland’s Request for the Constitution of an Arbitral Tribunal under OSPAR and Amended Statement of Claim and Grounds on Which it is Based, 10 December 2001 ...... 331
D. LEGAL INSTRUMENTS
73. International Law Commission, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, and Commentary ...... 347 74. Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR), 1992...... 419 75. OSPAR Strategy with regard to Radioactive Substances (1998-17), 22 –23 July 1998 ...... 453 76. Sintra Ministerial Declaration, 23 July 1998 ...... 461 77. OSPAR Action Plan, for the period 1998-2003 (Update 2000)...... 469 78. OSPAR Decision 2000/1 on Substantial Reductions and Elimination of Discharges, Emissions and Losses of Radioactive Substances, with Special Emphasis on Nuclear Reprocessing, 26-30 June 2000 ...... 483 79. OSPAR Decision 2001/1 on the Review of Authorisations for Discharges or Releases of Radioactive Substances from Nuclear Reprocessing Facilities, 25-29 June 2001 ...... 487 80. Lac Lanoux Arbitration (France v Spain) [1957], 24 ILR 101 ...... 489
[Volume III, Part Two: Annexes 81-102]
D: LEGAL INSTRUMENTS (CONTINUED)
81. UNEP Governing Council Resolution 14/25 Adopting Goals and Principles of Environmental Impact Assessment, 17 June 1987 ...... 3 266
82. United Nations Sustainable Development, Agenda 21 (Extracts)...... 9 83. Global Programme Of Action For The Protection Of The Marine Environment From Land-Based Activities, Washington D.C., 23 October - 3 November 1995...... 43 84. Communication from the Commission of the European Communities on the Precautionary Principle, Brussels, 2 February 2000...... 103 85. OSPAR Quality Status Report 2000: Region III – Celtic Seas (Extracts)...... 133 86. Bergen Declaration, 5th International Conference on the Protection of the North Sea, 20-21 March 2002 (Extracts) ...... 147 87. Ireland’s Maritime Jurisdiction Act, 1959...... 171 88. Ireland’s Maritime Jurisdiction (Amendment) Act, 1964...... 177 89. Ireland’s Maritime Jurisdiction (Amendment) Act, 1988...... 179 90. Ireland’s Sea Pollution Act, 1991 ...... 181 91. Ireland’s Sea Pollution (Amendment) Act, 1999...... 203
E. UNITED KINGDOM GOVERNMENT DOCUMENTS
92. Justification for the Manufacture of MOX Fuel. Decision of the Secretary of State for DEFRA and the Secretary of State for Health, 3 October 2001 ...... 219 93. Proposal for Liabilities Management Authority, House of Commons Hansard Debates, 28 November 2001, columns 990-995 ...... 271 94. Managing the Nuclear Legacy, A Strategy for Action, United Kingdom’s White Paper on the Liabilities Management Authority, 4 July, 2002...... 277
F. DOCUMENTS PREPARED FOR OR BY UNITED KINGDOM GOVERNMENT DEPARTMENTS.
1. Documents Related to the Justification Process of the MOX Plant 95. The Environmental Agency’s Proposed Decision on the Justification for the Plutonium Commissioning and Full Operation of the MOX Plant, October 1998 ...... 363 96. Report by the PA Consulting Group, Environment Agency, Assessment of BNFL’s Economic Case for the Sellafield MOX Plant, 12 December 1997 (Version released June 1999)...... 419 267
97. Report by Arthur D. Little on the Assessment of BNFL’s Business Case for the Sellafield MOX plant, (July 2001 released version)...... 473
2. Documents Related to the Environment and Nuclear Safety 98. Radioactive Waste Management Advisory Committee's Advice to Ministers on the Radioactive Waste Implications of Reprocessing, November 2000. (Executive Summary) ...... 513 99. Developing UK Policy for the Management of Radioactive Waste, The Royal Society, April 2002 ...... 523 100. RadioactiveWaste Management Advisory Committee, Press Releases regarding Submissions to the DEFRA Consultation on ‘Managing radioactive Waste Safely’ 27 June 2002 ...... 531
3. Other Documents Related To MOX Fuel 101. Health and Safety Executive, Nuclear Installations Inspectorate, An Investigation into the Falsification of Pellet Diameter Data in the MOX Demonstration Facility at the BNFL Sellafield Site and the Effect of this on the Safety of MOX fuel in use, 18 February 2000 (Executive Summary)...... 559 102. The United Kingdom Environment Agency’s Decision on the Application of the Transfrontier Shipment of Radioactive Waste Regulations 1993 to the proposed return of unirradiated MOX fuel from Japan to the United Kingdom, 2 July 2002...... 563
[Volume III, Part Three: Annexes 103-124]
G. BNFL’S REPORTS AND DOCUMENTS
103 Environmental Statement for the proposed Sellafield MOX Plant prepared by BNFL, October 1993 ...... 3 104 ‘The Economic and Commercial Justification for the Sellafield MOX Plant” Prepared by BNFL’, March 2001 ...... 57
H. INDEPENDENT STUDIES
105 Possible Toxic Effects from the Nuclear Reprocessing Plants at Sellafield (UK) and Cap de la Hague (France), WISE- Paris, November 2001 (STOA Report)...... 91 106 A Review of Aspects of the Marine Transports of Radioactive Materials: Report of Tim Deere Jones, Marine Environment and Pollution Consultant...... 263 268
I. PRESS RELEASES AND OTHER DOCUMENTS
107 Extracts of Press Articles about Security Concerns...... 321 108 Letter from Mr Benjamin Gilman, Chairman of the US House of Representatives International Relations Committee to Ms Madeleine Albright, US Secretary of State, 11 February 1999...... 329 109 Statements of Protests by States Situated in Proximity to the Transportation Routes...... 333 110 Articles Regarding the Return of MOX Shipment from Japan ...... 341 111 Press Statement of Director General, IAEA, November 1, 2001, “Calculating the New Global Nuclear Terrorism Threat” ...... 345 112 Extracts of Press Articles Demonstrating Concerns Regarding Sellafield in Third Countries ...... 349 113 Letter from Jens Stokenberg, Prime Minister of Norway to Mr Tony Blair, Prime Minister of the United Kingdom, 12 August 2001...... 351 114 Letter from Siri Berke, Norwegian Government to Ms Margaret Beckett, Secretary of State of DEFRA, United Kingdom, 18 October 2001 ...... 353 115 Article Regarding Commissioner Wallström’s Statement Regarding the STOA report, 12 March 2002...... 355 116 Articles Regarding Waste management and Policy in the United Kingdom ...... 357 117 Articles Regarding BNFL’s Financial Condition ...... 365
J. MISCELLANEOUS DOCUMENTS
118 United Kingdom Decision letter regarding Nirex’s Rock Characterisation facility, Letter from Director of Infrastructure & Planning, Government Office for North West, UK to Director of UK NIREX Ltd, 17 March 1997...... 375 119 Memorandum from Janice Dunn Lee, Director, Office of International Programs, US NRC, to the Nuclear Regulatory Commissioners, 6 September 2001, with enclosures...... 389 120 Letter from BNFL’s lawyers to Friends of the Earth Ltd, regarding the UK judicial review proceedings, 17 October 2001 ...... 401 121 Letter from BNFL’s lawyers to Friends of the Earth Ltd, re the UK judicial review proceedings, 6 November 2001...... 403 122 European Commission Opinion on THORP in accordance with Article 37 EURATOM, 30 April 1992 ...... 405 269
123 General Data Relating to the Arrangements for Disposal of Radioactive Waste as called for under Article 37, EURATOM, United Kingdom Submission, May 1996...... 407 124 European Commission Opinion on MOX in accordance with Article 37, EURATOM, 25 February 1997 ...... 473 270
VOLUME IV: THE MOFFF REPORT
The “Mixed Oxide Fuel Fabrication Facility (MOFFF) Environmental Report”, prepared by Duke Cogema Stone & Webster (Charlotte, NC) for the U.S. Department of Energy, December 2000, being Appendix 8.3 of the Report produced by Mr. William Sheate (Volume II, Appendix 6).