Volume 42 | Number 1 Fall 2006
The MOX Plant Case: The Question of “Supplemental Jurisdiction” for International Environmental Claims Under UNCLOS
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II. Background
A. Introduction
This case concerns a mixed oxide fuel plant (MOX Plant) in Sellafield, England, on the eastern shores of the Irish Sea.9 Mixed oxide or “MOX” is a nuclear fuel—produced by reprocessing spent nuclear waste—that can itself be used by nuclear power plants for energy production.10 A decision by the British government in 2001 opened the way for commissioning and operation of the MOX plant in question here, which Ireland claims will both directly and indirectly cause radioactive wastes to be discharged into the Irish Sea.11
B. The Irish Sea
“The most radioactive sea in the world”12
Radioactive waste is of concern regardless of its location, but such pollutants are especially troubling in the Irish Sea, the body of water separating Ireland from the United Kingdom. The Irish Sea is a semi-enclosed sea connected with the Atlantic Ocean by two narrow channels to the north and south.13 These limited inlets, the relatively constrained movement of water to and from the Sea, and the pronounced gyre effect within the Sea “reduce[ ] the effective amount of water for dilution . . . and tend[ ] to cause elevated levels of radionuclides [released into the Sea] to be drawn towards the vicinity of the western Irish Sea gyre,” along the eastern coast of Ireland.14
These features exacerbate existing problems with radioactive waste in the Irish Sea. The OSPAR Quality Status Report 2000 estimates that 200 kgs of plutonium currently pollute the Sea, and that “discharge of huge volumes of low level liquid waste from the Sellafield pipeline” has deposited at least “1/4 of a tonne of plutonium . . . in the Irish Sea which has become the most radioactive sea in the world.”15
Ireland relies upon the Irish Sea for “fishing, transport, recreation, gravel extraction, renewable energy . . . tourist trade . . . [and] water sports,” among other uses, and is naturally sensitive to any further degradation of the resource.16 A substantial portion of the Irish population also lives alongside or works in trades impacted directly by the quality of the Sea.17 Sea-related tourism alone produces approximately £4 billion per year, and provides employment for nearly 150,000 people.18
C. The MOX Plant
The MOX plant at issue is a recent addition to Sellafield, a British nuclear processing site that has been operating since 1947 on the eastern shores of the Irish Sea.19 The site was originally the Royal Ordnance factory, used for production of plutonium piles for defense purposes.20 In 1957, the site was the location of the Windscale Fire, the “first major accident in the history of nuclear power,” which released a still-unknown quantity of radioactive isotopes into the atmosphere.21 Current activities at the site include reprocessing spent nuclear fuel in Magnox and Thermal Oxide Reprocessing Plants (THORP), and the manufacture of MOX.22 The relationship between the THORP and MOX plants is significant: according to Ireland, the Sellafield operation seeks to retain existing customers of THORP reprocessing (such as Japan, Germany, Switzerland, Sweden, and the Netherlands) by also offering MOX processing, which allows such customers to have their plutonium residue from spent nuclear waste returned to them in the form of MOX fuel.23 Because of this, Ireland treats the impending MOX Plant development and the existing THORP Plant as integral parts of a single problem.24
D. Commissioning the MOX Plant
The regulatory process concerning the proposed MOX Plant extended over a period of nine years.25 British Nuclear Fuels Limited (BNFL) first submitted a planning application in 1992, and an Environmental Statement “showed that the radioactive discharges from the MOX Plant would be negligible.”26 Permission to begin construction was granted, and the MOX Plant was completed in August 1995.27 In 1996, BNFL applied for variations to the discharge authorizations granted under the Radioactive Substances Act 1993, and, following rigorous debate, independent expert consultations, a “data falsification incident,” and five rounds of public hearings, the U.K.’s Health and Safety Executive in December 2001 finally authorized plutonium commissioning of the MOX Plant pursuant to the Nuclear Installations Act 1965.28 Ireland notes that the two independent reports on which the hearings were based were “heavily censored on alleged grounds of ‘commercial confidentiality.’”29 Ireland further argues that such censorship made it impossible to evaluate the economic justification for the plant, and the linkage of the MOX Plant to the ongoing viability of THORP.30
E. Regulatory Background
While the United Kingdom flatly denies that the Tribunal has jurisdiction beyond the terms of UNCLOS, which will be discussed below, it notes at some length the extensive regulations to which the nuclear industry is already subject.31 These regulations include: (1) the International Atomic Energy Agency’s (IAEA) regulations; (2) the Convention on Nuclear Safety; (3) the Convention on the Physical Protection of Nuclear Material; (4) the Joint Convention on Safety of Spent Fuel Management and on the Safety of Radioactive Waste; (5) IAEA Regulations for the Safe Transport of Radioactive Material; (6) the International Maritime Organization (IMO); (7) the International Commission on Radiological Protection (ICRP); (8) the European Community and EURATOM; (9) the OSPAR Convention and Commission; (10) the U.K. Environment Agency; (11) the U.K. Nuclear Installations Inspectorate; and (12) the Office of the U.K. Health and Safety Executive, among others.32 The United Kingdom insists that the MOX Plant complies with all such applicable regulations.33
F. Scientific and Technical Overview
Ireland asserts that “this case is not a dispute over science.”34 Ireland believes that the scientific facts demonstrate that the United Kingdom has failed to meet its obligations under UNCLOS, which incorporates various obligations under additional international agreements.35 The United Kingdom responds that the science is in dispute36 and, more importantly for the purposes of this discussion, emphasizes that Ireland has brought a claim on grounds that exceed the facts and the jurisdiction of the Tribunal.37 A brief overview of the science at issue is useful here.
The primary concern of Ireland’s claim is the possible release of radioactive wastes into either the atmosphere or water in such a way as to further pollute the Irish Sea.38 While Ireland does call attention to radioactive discharges from the MOX Plant,39 it primarily argues that that development of the MOX Plant will prolong and expand operation of the Sellafield THORP Plant, a much less benign facility, which in tandem produce violations of various legal obligations to which the United Kingdom is subject.40
According to the U.K. Radioactive Substances (Basic Safety Standards) Direction 2000 (BSS Direction 2000), emissions from any new source of radiation must not exceed 0.3 millisieverts per year.41 The United Kingdom notes that the Environment Agency has already reported that “the [estimated] dose to the most exposed UK group . . . to gaseous discharges from the MOX Plant to be 0.000002 millisieverts per year (two thousandths of a millionth of a sievert),” whereas the “average radiation dose to members of the United Kingdom population is 2.2 millisieverts per year from natural background sources.”42 The exposure to any “critical group” in Ireland from MOX Plant discharges is calculated to be 0.000000024 millisieverts per year (2.4 hundred thousandths of a millionth of a sievert).43 Further, in a worst-case scenario analysis, the United Kingdom calculated that the largest considered discharge would expose a very narrow group of the Irish population to 1.98 microsieverts of radiation, which “would not be significant from the health point of view” according to a European Commission Opinion.44 Ireland does not particularly challenge this data, except to argue for evaluating MOX Plant and THORP emissions together.45
The lack of a linkage between the plants is strongly questioned by Ireland.46 The PA Consulting Group Report, one of the two heavily censored reports mentioned above, concluded that the MOX Plant would make a profit over the life of the plant without taking “sunk capital costs” into consideration; that is, the report failed to consider the cost of building the plant when evaluating its profitability.47 It also appears that the Report further ignored security and safety costs advisable in a post-September 11, 2001 world.48 So without considering the £470 million cost of construction and other advisable costs, the censored Report concludes that the plant will achieve a profit of £199-216 million over its lifespan.49 Ireland notes that “[n]ot only will the plant therefore contribute to the added pollution of the Irish Sea . . . it will also lose the company (or the British taxpayer) more than £250 million.”50 The negative balance sheet leads Ireland to conclude that the MOX and THORP plants make no economic sense without a linkage between them, despite the government’s denials and censored reports.51
G. Case Posture
Following several rounds of correspondence and hearings that failed to assuage Ireland’s concerns, in October 2001 Ireland instituted arbitration proceedings against the United Kingdom pursuant to Article 287 of UNCLOS.52 Under the authority of Annex VII of UNCLOS, hearings were held at the International Tribunal for the Law of the Sea (ITLOS) in Hamburg in November 2001. In December 2001, ITLOS unanimously prescribed that Ireland and the United Kingdom “shall co-operate and shall . . . (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; [and] (c) devise, as appropriate, measures to prevent pollution of the marine environment which might result from the operation of the MOX plant.”53 Having failed to resolve their differences after pursuing these directives, Ireland has submitted the current claim to mandatory arbitration proceedings.54
Ireland and the United Kingdom are both parties to UNCLOS, and either may avail itself of the Convention’s authority to settle disputes under Part XV.55 At the initial ITLOS proceeding in 2001, the United Kingdom challenged the Tribunal’s jurisdiction, claiming that Ireland should have brought suit under some other treaty, such as the 1992 OSPAR Convention, the EC Treaty, and/or the EURATOM Treaty.56 Ireland responded that “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.”57 ITLOS unanimously rejected the United Kingdom’s challenge to its jurisdiction based on UNCLOS Article 282, which provides for dispute resolution procedures for signatories to the Convention.58 Ireland now argues that this earlier rejection of the United Kingdom’s challenge to jurisdiction means that the current Tribunal cannot now reject jurisdiction without the United Kingdom fulfilling a burden to show some exceptional reason for rejecting jurisdiction at this stage of the case.59