The United Nations International Tribunal for the Law of the Sea issued a significant ruling on the case brought by the Irish government against the UK Government over the controversial Sellafield nuclear complex. The Tribunal, made up of 21 judges, issued a unanimous ruling that puts pressure on the UK to stop the operation a new plutonium fuel manufacturing facility, the Sellafield MOX Plant (SMP).
Ireland had requested that the Tribunal issue provisional measures (a form of injunction) against the UK government, including that the SMP authorization should be withdrawn and that there be no nuclear transports into or out of Sellafield associated with the SMP. The Tribunal did not issue the measures requested by Ireland. However, in a move that will infuriate the UK government, the Tribunal did issue provisional measures that may have the same effect as those originally sought by Ireland.
- In their pre-amble the judges unanimously rejected UK claims that the Law of the Sea Convention Tribunal did not have jurisdiction;
- The judges in their preamble called on the UK and Ireland to undertake no action "which might aggravate the dispute" - for Greenpeace this means that BNFL should not proceed with MOX production after December 20th 2001;
In terms of provisional measures, the Tribunal instructed:
- Both parties to "cooperate" and enter into consultation including the exchange of information with regard to possible consequences for the Irish Sea arising out of the commissioning of the MOX plant and to devise measures to prevent pollution of the marine environment from the plant.
"The judges have recognized that the UK should not do anything that would damage aggravate the dispute between Ireland and the UK. The obvious point here is that turning on the MOX plant will certainly aggravate the dispute - the UK should therefore abandon its plans for MOX production at the end of the month," said Duncan Currie, legal counsel for Greenpeace International.
The provisional measures agreed to by the Tribunal will remain in force until the conclusion of international arbitration to be held under the auspices of the International Convention on the Law of the Sea. Hearings are expected to begin in early 2002. The Tribunal also stated that further measures could be passed by the Tribunal if necessary.
Greenpeace is also encouraged by the views of seven of the judges, namely, that "The Tribunal has identified the duty to cooperate as a fundamental principle in the regime of the prevention of pollution of the marine environment under Part XII of the Convention and general international law."
In terms of nuclear transports, BNFL will not be able to make any transports into or out of Sellafield while the Arbitration is underway. Perhaps of most significance, the planned return of rejected MOX fuel from Japan to Sellafield, due in 2002, will now be under threat. The fuel was originally shipped by BNFL in 1999, but after admitting that it contained falsified quality control data, it was agreed by Japan and the UK governments to ship it back to the UK. BNFL hopes that its return will help secure new large contracts for the SMP with Japanese utilities. Ireland in its evidence to the Tribunal held in November, made the case that there were major safety and security issues involved in nuclear transports which the UK have not adequately addressed.
The Tribunal has also established the right of states threatened by pollution from transports to be consulted - this is a major step forward for the rights of en-route states opposed to the transport of nuclear material, including high level waste and plutonium MOX fuel.
"The UK government has to seriously reflect on today's judgement. A plutonium business that makes no economic sense, leads to widespread contamination of the environment, whilst presenting a major proliferation and terrorist threat, deserves no future. The Tribunal has issued an important judgement today, the Irish government is right to be pleased by this judgement, and BNFL and the UK government know that this is a red not a green light to MOX production," said Shaun Burnie nuclear campaigner with Greenpeace International.
Greenpeace and Friends of the Earth UK expect to hear within days the result of their lawsuit against the UK government's decision to authorize the MOX plant. The Court of Appeal in London heard the case last week.
Notes for editors:
Language of the Tribunal December 3rd 2001:
- Unanimously,
Prescribes, pending a decision by the Annex VII arbitral tribunal, the following provisional measure under article 290, paragraph 5, of the Convention:
Ireland and the United Kingdom shall cooperate 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. - Unanimously,
Decides that Ireland and the United Kingdom shall each submit the initial report referred to in article 95, paragraph 1, of the Rules not later than 17 December 2001, and authorizes the President of the Tribunal to request such further reports and information as he may consider appropriate after that date. - Unanimously,
Decides that each party shall bear its own costs. P. Chandrasekhara Rao,President.
