¹ For further details, see the written pleadings of the parties in the various stages of the litigation, references to the sources of which are given in notes 11, 16, and 21 below.Google Scholar

² Clark, RBThe Waters around the British Isles: Their Conflicting Uses (OxfordClarendon Press 1987), at 237–41;Google ScholarOspar Commission Quality Status Report 2000 for the North-East Atlantic, Report III Celtic Seas, at 63–7 and 108 (available at <http://www.ospar.org>..>Google Scholar

³ For further discussion, see text at nn 117–21 below.Google Scholar

⁴ Treaty establishing the European Atomic Energy Community, 1957.Google Scholar

⁵ Opinion of the Commission of 11 Feb 1997 concerning the Plan for the Disposal of Radioactive Waste, from the Operation of the Sellafield Mixed Oxide Fuel Plant of British Nuclear Fuels pic, Sellafield, Cumbria, UK, in accordance with Art 37 of the Euratom Treaty, OJ (1997) C68/4.Google Scholar

⁶ Directive 96/27/Euratom laying down Basic Safety Standards for the Protection of the Health of Workers and the General Public against the Dangers arising from Ionizing Radiation, OJ (1996) L159/1. This replaced Directive 80/836/Euratom (OJ (1980) L246/1) with effect from 3 May 2000.Google Scholar

⁷ (1993) 32 ILM 1069.Google Scholar

⁸ 1833 UNTS 396.Google Scholar

⁹ OJ (1990) L158/56. This Directive has been replaced by Directive 2003/4 (OJ (2003) L41/26) which Member States are required to implement by 15 Feb 2005.Google Scholar

¹⁰ For detailed commentary on the Convention, see Hey, E, Ijlstra, T, and Nollkaemper, A ‘The 1992 Paris Convention for the Protection of the Marine Environment of the North-East Atlantic: A Critical Analysis’ (1993) 8 International Journal of Marine and Coastal Law 1;CrossRefGoogle Scholarand de La Fayette, L ‘The Ospar Convention Comes into Force: Continuity and Progress’ (1999) 14 International Journal of Marine and Coastal Law 247.CrossRefGoogle Scholar

¹¹ The text of the award, as well as the written and oral submissions of the parties, may be found on the web site of the Permanent Court of Arbitration at <http://www.pca-cpa.org>. For a more detailed account of the award than that which follows, see Fitzmaurice, M ‘Dispute Concerning Access to Information under Article 9 of the Ospar Convention (Ireland v United Kingdom and Northern Ireland [sic])’ (2003) 18 International Journal of Marine and Coastal Law 541.Google Scholar

¹² Ibid, paras 132–8.

¹³ Ibid, paras 163–82. Dr Griffith thought that the majority had taken an overly narrow view of the scope of Art 9(2): see paras 34–135 of his dissenting opinion.

¹⁴ For fuller discussion of the Convention's dispute settlement procedures, see, eg, Brown, ED ‘Dispute Settlement and the Law of the Sea: the UN Convention Regime’ (1997) 21 Marine Policy 17;CrossRefGoogle ScholarCollier, J and Lowe, AVThe Settlement of Disputes in International Law: Institutions and Procedures (OxfordOUP 1999), ch 4;Google ScholarandMerrills, JGInternational Dispute Settlement (3rd ednCambridgeCUP 1998), ch 8.Google Scholar

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¹⁶ The MOX Plant Case (Ireland v United Kingdom), Request for Provisional Measures, Order of 3 December 2001,(2002) 41 ILM 405. The text of the order, together with the pleadings of theparties, can also be found on the ITLOS website, <http://www.itlos.org>. For comment on the Order, see Brown, C ‘International Tribunal for the Law of the Sea: Provisional Measures before the ITLOS: The MOX Plant Case’ (2002) 17 International Journal of Marine and Coastal Law 267;.+For+comment+on+the+Order,+see+Brown,+C+‘International+Tribunal+for+the+Law+of+the+Sea:+Provisional+Measures+before+the+ITLOS:+The+MOX+Plant+Case’+(2002)+17+International+Journal+of+Marine+and+Coastal+Law+267;>Google ScholarKwiatkowska, B ‘The Ireland v. United Kingdom (Mox Plant) Case: Applying the Doctrine of Treaty Parallelism’ (2003) 18 International Journal of Marine and Coastal Law 1;CrossRefGoogle ScholarandLowe, V and Churchill, R ‘The International Tribunal for the Law of the Sea: Survey for 2001’ (2002) 17 International Journal of Marine and Coastal Law 463 at 477–84.CrossRefGoogle Scholar

¹⁷ ITLOS Order of 3 Dec 2001, para 81. For comment on and some criticism of this aspect of the Order, see Lowe, and Churchill, , above n 16, at 481–2.Google Scholar

¹⁸ Ibid, para 84.

¹⁹ For comment on and some criticism of this aspect of the Order, see Brown, , above n 16, at 281–3; Kwiatkowska, above n 16, at 41–6; and Lowe and Churchill, above n 16, at 482–3.Google Scholar

²⁰ This summary of Ireland's case is based on pp 3–4 of its Memorial, rather than its very extensive statement of claim. The latter is, in some respects (notably environmental impact assessment), narrower than Ireland's summary of it in its Memorial.Google Scholar

²¹ Statement by the President, 13 June 2003, para 6. The statement, the various orders made by the Tribunal (referred to below) and the pleadings of the parties can all be found on the web site of the Permanent Court of Arbitration <http://www.pca-cpa.org>..>Google Scholar

²² Ibid, para 11.

²³ The points made in the President's statement are repeated and expanded on in Order No 3 (below n 24), paras 14–30.Google Scholar

²⁴ The MOX Plant Case (Ireland v United Kingdom). Order No 3. Suspension of Proceedings on Jurisdiction and Merits and Request for Further Provisional Measures. (Orders Nos 1 and 2 dealt with Ireland's amended statement of claim and extension of time limits for submitting written pleadings, respectively).Google Scholar

²⁵ Ibid, paras 14–17.

²⁶ Ibid, para 25.

²⁷ Ibid, para 55.

²⁸ In his dissenting opinion in the Ospar Convention arbitration, Dr Griffith regards the precautionary principle as shifting the burden of proof on to the UK to show that the MOX plant would not adversely affect the marine environment: see paras 72–6 of his dissenting opinion. In the ITLOS phase of the case Judge Wolfrum was of the view that the precautionary principle was not applicable in relation to provisional measures as it would effectively mean that such measures would have to be granted whenever an applicant argued with some degree of plausibility that its rights might be prejudiced or the marine environment harmed: see p 5 of his separate opinion. But see Judge Treves in the Southern Blue/in Tuna case, below at n 41, who sees a precautionary approach as inherent in the notion of provisional measures: see para 8 of his separate opinion. See further Churchill, RR ‘International Tribunal for the Law of the Sea: The Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan). Order for Provisional Measures of 27 August 1999 ’ (2000) 49 ICLQ 979 at 988–9;Google Scholarand Brown, above n 16, at 283–6.Google Scholar

²⁹ Art 12(1) of the Annex VII Tribunal Rules of Procedure; Art 12(1) of the Ospar Convention Tribunal Rules of Procedure.Google Scholar

³⁰ See, in particular, ch 3 of its Counter-Memorial.Google Scholar

³¹ Above n 24, para 62.Google Scholar

³² Ibid, para 63.

³³ Ibid, paras 64–7.

³⁴ Case C-459/03, Commission v Ireland OJ (2004) C7/24. The issues in the case are discussed below: see text at n 71 et seq.Google Scholar

³⁵ The MOX Plant Case (Ireland v United Kingdom). Order No 4 of 14 Nov 2003. Further Suspension of Proceedings on Jurisdiction and Merits.Google Scholar

³⁶ See, from amongst a growing literature on this topic, Charney, JI ‘Is International Law threatened by Multiple International Tribunals?’ (1998) 271 Recueil des Cours 101;Google ScholarLowe, V ‘Overlapping Jurisdiction in International Tribunals’ (1999) 20 Australian Yearbook of International Law 191;Google ScholarOxman, BH ‘Complementary Agreements and Compulsory Jurisdiction’ (2001) 95 AJIL 191;CrossRefGoogle Scholarand Shany, YThe Competing Jurisdictions of International Courts and Tribunals (OxfordOUP 2003).Google Scholar

³⁷ Charney, , above n 36, at 347 et seq. In the present litigation it is noteworthy that the Annex VII Tribunal in its order on provisional measures pays great attention to and follows the jurisprudence of the ICJ and ITLOS on provisional measures.Google Scholar

³⁸ 1819 UNTS 359.Google Scholar

³⁹ See text at n 15 above.Google Scholar

⁴⁰ These provide that the parties to a dispute are to consult among themselves with a view to having the dispute resolved by negotiation or other agreed means: any dispute not so resolved may be referred with the consent of all the parties to the dispute to the ICJ or arbitration.Google Scholar

⁴¹ Southern Bluefin Tuna Cases (New Zealand v Japan); (Australia v Japan), Order for Provisional Measures of 27 Aug 1999, paras 53–5, (1999) 38 ILM 1624.Google ScholarAlso on the ITLOS web site at <http://www.itlos.org>. For comment, see, eg, Churchill, above n 28;.+For+comment,+see,+eg,+Churchill,+above+n+28;>Google ScholarHayashi, M ‘The Southern Bluefin Tuna cases: Prescription of Provisional Measures by the ITLOS’ (2000) 13 Tulane Environmental Law Journal 361;Google Scholarand Kwiatkowska, B ‘The Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) Cases’ (2000) 15 International Journal of Marine and Coastal Law 1.CrossRefGoogle Scholar

⁴² Southern Bluefin Tuna Case (Australia and New Zealand v Japan), Award on Jurisdiction and Admissibility of 4 Aug 2000, paras 53–64 (2000) 39 ILM 1359.Google Scholar

⁴³ For such criticisms, see, for example, AE Boyle ‘The Southern Bluefin Tuna Arbitration’ (2001) 50 ICLQ 447;CrossRefGoogle ScholarColson, DA and Hoyle, P ‘Satisfying the Procedural Prerequisites to the Compulsory Dispute Settlement Mechanisms of the 1982 Law of the Sea Convention: Did the Southern Bluefin Tuna Tribunal get it Right?’ (2003) 34 Ocean Development and International Law 59;CrossRefGoogle ScholarRomano, C ‘The Southern Bluefin Tuna Dispute: Hints of a World to Come... Like it or Not’ (2001) 32 Ocean Development and International Law 313;CrossRefGoogle Scholar and the opinion of the sole dissenting arbitrator in the Annex VII Tribunal, Sir Kenneth Keith. For support for the Tribunal's decision, see Kwiatkowska, B ‘The Australia and New Zealand v Japan Southern Bluefin Tuna Jurisdiction and Admissibility Award of the First Law of the Sea Convention Annex VII Arbitral Tribunal’ (2001) 16 International Journal of Marine and Coastal Law 239.CrossRefGoogle Scholar

⁴⁴ Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community), Order of 15 March 2001, at <http://www.itlos.org>..>Google Scholar

⁴⁵ Order of 16 Dec 2003.Google Scholar

⁴⁶ WT/DS/193/3, 6 Apr 2001.Google Scholar

⁴⁷ For discussion of the litigation, see Lowe, V ‘The International Tribunal for the Law of the Sea: Survey for 2000’ (2001) 16 International Journal of Marine and Coastal Law 549, at 567–9;CrossRefGoogle ScholarLowe, and Churchill, , above n 16, at 466–7;Google ScholarMcDorman, TL ‘The Chile v EC Swordfish Case’ (2000) 11 Yearbook of International Environmental Law 585;Google Scholarand Orellana, MA ‘The Swordfish Dispute between the EU and Chile at the ITLOS and the WTO’ (2002) 71 Nordic Journal of International Law 55.CrossRefGoogle Scholar

⁴⁸ UK's Written Response, at 63–70.Google Scholar

⁴⁹ ITLOS Order of 3 Dec 2001, at n 16, para 50.Google Scholar

⁵⁰ Ibid, paras 51–3.

⁵¹ See the separate opinions of Vice-President Nelson and Judges Anderson and Jesus.Google Scholar

⁵² UK Counter-Memorial, at 99–103.Google Scholar

⁵³ Above n 24, para 18.Google Scholar

⁵⁴ As to which see below n 119.Google Scholar

⁵⁵ The Commission had intimated this in a Written Answer in the European Parliament on 15 May 2003. Above n 24, para 21.Google Scholar

⁵⁶ Ibid, para 23.

⁵⁷ It is true that there is some brief discussion in the UK's Written Response in the ITLOS phase of the proceedings (see paras 168–75), but this is of a fairly cursory nature, especially in relation to the matters considered below.Google Scholar

⁵⁸ Ireland's Memorial, 98.Google Scholar

⁵⁹ Ireland's Reply, 45–6.Google Scholar

⁶⁰ UK's Rejoinder, para 4.32. For an interesting and lucid account of the role of mixed agreements in Community law see J Heliskoski Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (The Hague Kluwer 2001). This book contains an in-depth discussion of the particular example of UNCLOS, and an account of the implications for dispute settlement of mixed agreements.Google Scholar

⁶¹ Oral Proceedings, Day 3, at 3. It is interesting to note that Ireland agrees that the ‘[t]he issue of the competence of the EC and its Member States in the context of international agreements may appear complex, but, in reality, it is a relatively simple issue.’ It seems that the only thing upon which the parties can agree is that the issues arising are straightforward!Google Scholar

⁶² UK's Rejoinder, para 4.45.Google Scholar

⁶³ Ibid, para 4.50.

⁶⁴ Ibid, para 4.5.

⁶⁵ Look, for example, at paras 4.43–4.51 in the UK Rejoinder where the UK repeatedly uses the phrase ‘affects’ or ‘would affect’ Community roles, calling into play the ERTA doctrine (on which see 661 below). This might be thought to be particularly problematic when it comes to the issue of minimum standards. See the discussion during Day Three of the oral proceedings. The UK asserted that it was ‘ill-founded’ to suggest that ‘minimum standards are incompatible with exclusive competence’ (at 14). It is certainly the case that minimum harmonization will not invariably lead to exclusive Community competence by virtue of the ERTA doctrine. It would not be sensible, however, to exclude entirely the possibility that minimum standards might on occasion be such as to pre-empt the external relations competence of the Member States. As the recent ‘Open Skies‘ (see, eg, Case C-467/98 Commission v Denmark [2002] ECR 1–9519) litigation shows, it is necessary to make a determination on a case by case basis, having regard to the scope of the precise Community rule, and to the nature of the external obligation in question It is interesting to note that the European Court has found as regards the internal dimension of Community law, that minimum harmonization measures may, on occasion, give rise to ‘exhaustive’ harmonization. This is particularly the case where the minimum measure also regulates in a detailed manner the circumstances in which stricter standards may be applied. Thus, minimum harmonization may, on occasion, be exhaustive harmonization, and may as such pre-empt Member States' recourse to the free movement exceptions. This may be thought to indicate that the mere fact that a measure pursues a minimum harmonization approach is not in and of itself definitive when it comes to the question of the pre-emption of Member States' competence. This example from the internal sphere may, arguably, apply by way of analogy to the external domain.Google Scholar

⁶⁶ Proceedings Day Two, at 9.Google Scholar

⁶⁷ Ibid, at 19.

⁶⁸ Ibid, at 22–4.

⁶⁹ Above n 24, para 26.Google Scholar

⁷⁰ Except where otherwise specified, the following analysis of Art 292 EC may be taken to apply also to Art 193 Euratom.Google Scholar

⁷¹ Case 181/73 Haegemann [1974] ECR 449, para 5. See, for a discussion of this and related issues, Cheyne, I ‘International Instruments as a Source of Community Law’ in Dashwood, A and Hillion, C (eds) The General Law of EC External Relations (LondonSweet & Maxwell 2000), at 254.Google ScholarSee also chapter 2 of the same volume, also by Cheyne, .Google Scholar

⁷² See Annex IX of UNCLOS concerning accession by international organizations, and Council Decision 98/392 EC, OJ (1998) L179/1.Google Scholar

⁷³ Denmark is not a party at present.Google Scholar

⁷⁴ See Cremona, M ‘External Economic Relations and the Amsterdam Treaty’ in O'Keeffe, D and Twomey, P (eds) Legal Issues of the Amsterdam Treaty (OxfordHart Publishing 1999) at 225.Google Scholar

⁷⁵ Case 22/70 Commission v Council (ERTA) [1971] ECR 263.Google Scholar

⁷⁶ ‘The Classic Authorities Revisited’ in Dashwood and Hillion, above n 71, at 3 and 17. Theauthors distinguish between two ways in which external relations competence can arise, absent express conferment by the Treaty. First, by way of the ERTA doctrine as described above and, second, by way of what they call the ‘complementarity principle’. This applies where ‘the possibility of entering into international agreements is seen as necessary for the attainment of the particular objective for the purpose of which “Community law has created for the institutions of the Community powers within its internal system”’ (at 12). See, in particular, Opinion 1/91 which makes it clear that such competence may well be non-exclusive other than where, as Dashwood and Heliskoski put it, ‘the activity authorized by the relevant [internal] legal basis is one which, by its very nature, precludes concurrent action by the Member States, if it is to be successfully undertaken’ (at 18).Google Scholar

⁷⁷ See n 65 above and Opinion 2/91, [1993] ECR 1–1061 as regards both of these propositions, and Opinion 1/94, [1994] ECR 1–5267 as regards the latter. For a discussion see O'Keeffe, D ‘Exclusive, Concurrent and Shared Competence’ in Dashwood and Hillion, above n 71, at 179. See op cit n 65 on minimum standards.Google Scholar

⁷⁸ See also Art 6(2) of Annex IX of UNCLOS which builds on this as regards state responsibility: ‘Any State Party may request an international organization or its [M]ember States which are State Parties for information as to who has responsibility in respect of any specific matter. The organization and the [M]ember States concerned shall provide this information. Failure to provide this information within a reasonable time or the provision of contradictory information shall result in joint and several responsibility.’ See also Art 5(3) of Annex IX which provides that Member States of an international organization which is party to the Convention shall be presumed to have competence over all matters governed by the Convention in respect of which transfers of competence to the organization have not been specifically declared, notified or communicated by those States. See also Heliskoski, above n 60.Google Scholar

⁷⁹ For a discussion of the extent of Member State duties in the external relations sphere based on Art 10, see the contribution by Hyett, S in Dashwood and Hillion, above n 71, at 248 and Heliskoski above n 60.Google Scholar

⁸⁰ Art 300(6) may be used only in respect of ‘envisaged agreements’.Google Scholar

⁸¹ For a very useful typology of mixed agreements, and a break-down of different kinds of nonexclusive EC competence, including concurrent competence, see Rosas, A ‘The European Union and Mixed Agreements’ in Dashwood and Hillion, above n 71, at 200.Google Scholar

⁸² See Art 176 EC.Google Scholar

⁸³ Dashwood, and Heliskoski, , above n 71, at 17.Google Scholar

⁸⁴ The fact that UNCLOS is a mixed agreement does not help us in this respect. It is generally recognized that there are areas within it which fall within the exclusive competence of Member States. Rosas offers the example of ‘questions of territorial jurisdiction, navigation and passage’ (above n 81, at 204). For this reason mixity is required and in itself tells us nothing about any political choice that may have been taken in respect of areas of concurrent competence.Google Scholar

⁸⁵ Under Art 5(2) a Member State of an international organization is required to make a declaration when it ratifies UNCLOS or at the time when the organization ratifies UNCLOS, whichever is the later, specifying those matters governed by the Convention in respect of which competence has been transferred. The twelve Member States that ratified prior to the EC (including Ireland and the UK) all made declarations recalling that they had transferred competence to the EC ‘in respect of certain matters governed by’ UNCLOS. The declarations then added that a detailed declaration on the nature and extent of the competences transferred would be made in due course in accordance with the provisions of Annex IX. Although the EC ratified UNCLOS in 1998, no further declarations have been made by the Member States as required by Art 5(2) of Annex IX and as foreshadowed in their own declarations on ratification of UNCLOS. In relation to the two Member States which ratified UNCLOS after the EC (which according to Art 5(2) should make declarations about competence upon ratification), Belgium simply refers to the EC declaration, while Luxembourg makes no declaration at all. See also Art 5(4) which requires that an international organization or State party to UNCLOS shall promptly inform the UNCLOS depositary of any changes to the distribution of competences as between them, including new transfers of competence.Google Scholar

⁸⁶ Annex IX, Art 4(3).Google Scholar

⁸⁷ Recall that Annex IX UNCLOS also uses this same language, providing, as noted previously, that in areas in which competence has been transferred, it is for the international organization in question (the EC here) to exercise the rights and perform the obligations arising under the agreement.Google Scholar

⁸⁸ This is central to the case made by Ireland in its oral proceedings. It argued that Member States do not transfer competence unless the international organization in question becomes exclusively competent in the sphere. Ireland's position is somewhat ambiguous as to whether competence may be deemed to have been transferred in so far as exclusivity is not a priori, but is rather based upon the application of the ERTA doctrine, by virtue of there being common EC rules which are liable to be affected. See Oral Proceedings, Day Two, at 18 and 23 in particular.)Google Scholar

⁸⁹ Above n 24, para 25.Google Scholar

⁹⁰ As noted previously, Denmark is not yet a party to UNCLOS. Of the ten new Member States, eight have ratified the Convention (Estonia and Latvia being the exceptions).Google Scholar

⁹¹ It is worth noting that this reference to the Treaty would include not only mechanisms established by the Treaty itself, but also those constituted by acts adopted pursuant to the Treaty, and in accordance with it. Though UNCLOS may be considered such an act, it does not permit Annex VII arbitration to be instituted by a Member State of an international organization in so far as the dispute concerns matters in relation to which competence has been transferred. This would seem to flow from Art 4(2) of Annex IX which provides that it is for the international organization in question to exercise the rights and to perform the obligations on matters relating to which competence has been transferred by its Member States. Those Member States shall not exercise such competence as has been transferred. It will also be apparent that, in the light of this, it will be for the EC to institute any action against a third State, in so far as the subject matter of the dispute falls within the scope of the competence transferred to it.Google Scholar

⁹² See, eg, Case C-13/00 Commission v Ireland, concerning the failure by Ireland to adhere within the prescribed period to the Berne Convention for the Protection of Literary and Artistic Works.Google Scholar

⁹³ OJ (1993) L 158/56.Google Scholar

⁹⁴ Most recently Case C-388/95 Belgium v Spain [2000] ECR 1–3121 (concerning designation of origin in respect of quality wines) and Case 141/78 France v United Kingdom [1979] ECR 2923 (concerning the size of mesh in fishing nets). This latter case is of some interest to the current discussion.Google Scholar

⁹⁵ OJ (1997) C68/4. See also Commission Opinion of 26 Nov 2002 concerning the plan for the disposal of radioactive waste arising from the operation of the MOX Demonstration Facility at Sellafield located in the UK, in accordance with Art 37 of the Euratom Treaty (OJ (2002) C 292/7). It seems unlikely that such Commission Opinions would be susceptible to judicial review given that they do not have binding force or produce legal effects.Google Scholar

⁹⁶ There does not seem to be any reason why, in principle, Ireland could not proceed by way of an action for judicial review, assuming that it meets the relevant standing requirements. See, for an example of a sovereign State instituting such an action before a UK court, Kuwait Airways Corporation v Iraqi Airways Co [2002] UKHL 19.Google Scholar

⁹⁷ See, for example, Case C-143/88 Zuckerfabrik [1991] ECR 1–415; Case C-465/93 Atlanta [1995] ECR 1–3761; and Case C-213/89 Factortame [1990] ECR 1–2433.Google Scholar

⁹⁸ Above n 71, at 258.Google Scholar

⁹⁹ Ibid, at 260.

¹⁰⁰ See, eg, Case T-18/99, Cordis Obst [2001] ECR II–913.Google Scholar

¹⁰¹ Art 174(2) of the EC Treaty.Google Scholar

¹⁰² Art 4(6) of Annex IX provides that: ‘In the event of a conflict between the obligations of an international organization under the Convention and its obligations under the agreement establishing the organization or any acts relating to it, the obligations under this Convention shall prevail.’Google Scholar

¹⁰³ Above n 24, para 28.Google Scholar

¹⁰⁴ The parties to the Convention include the EC and all the pre-2004 Member States except Austria, Greece, and Italy.Google Scholar

¹⁰⁵ UK Counter-Memorial, at 22–3. Interestingly, in its Rejoinder in the Annex VII Tribunal proceedings (at 63), the UK argues that issues concerning access to information fall within the EC's competence as far as UNCLOS is concerned. If this is correct, it would seem that such issues should also fall within EC competence as far as the Ospar Convention is concerned.Google Scholar

¹⁰⁶ Award, above n 11, para 143.Google Scholar

¹⁰⁷ Ibid, para 142.

¹⁰⁸ There is no discussion at all in the Ospar Convention arbitration of the possible relationship of the Convention's dispute settlement procedures to those of UNCLOS. This omission may well be due to the fact that UNCLOS does not establish an unequivocal right to information of the kind sought by Ireland.Google Scholar

¹⁰⁹ A statement made by ministers of States parties to the Ospar Convention, available on the Ospar Commission's web site, <http://www.ospar.org>..>Google Scholar

¹¹⁰ (1992) 31 ILM 874.Google Scholar

¹¹¹ (1999) 38 ILM 517.Google Scholar

¹¹² Above n 106, para 85.Google Scholar

¹¹³ Ibid, para 101. Art 31(3) of the Vienna Convention provides that in interpreting a treaty there shall be taken into account with its context inter alia (b) any subsequent practice in the application of the treaty that establishes the agreement of the parties to the treaty regarding its interpretation and (c) any relevant rules of international law applicable in the relations between the parties.

¹¹⁴ See Ireland's Memorial, at 102–10. See also 47–52 of its Reply.Google Scholar

¹¹⁵ UK Counter-Memorial, at 103–7. See also 65–73 of its Rejoinder.Google Scholar

¹¹⁶ Order No 3, para 19.Google Scholar

¹¹⁷ See, eg, its proposals for the closure of Sellafield made to the Paris Commission (referred to below) in 1987 and 1988 (9th Annual Report of the Paris Commission (1987), at 22–3 and 10th Annual Report of the Paris Commission (1988), at 8–9) and statements made by various Irish ministers quoted in the UK's Counter-Memorial in the UNCLOS Annex VII tribunal proceedings, at 7–8.Google Scholar

¹¹⁸ Established by the Convention for the Prevention of Marine Pollution from Land-based Sources, 1974, UK Treaty Series 1978, No 64. The Paris Commission was replaced by the Ospar Commission when the Ospar Convention came into force in 1998.Google Scholar

¹¹⁹ See, eg, Paris Commission Recommendations 88/4, 88/5,91/4 and 93/5; Ospar Commission Strategy with regard to Radioactive Substances, 1998 (updated in 2003); and Ospar Commission Decisions 2000/1 and 2001/1, all at <http://www.ospar.org>. See also de La Fayette, L ‘The Ospar Convention Comes into Force: Continuity and Progress’ (1999) 14 International Journal of Marine and Coastal Law 247, at 275–9.CrossRefGoogle Scholar

¹²⁰ First North Sea Conference Declaration, 1984, para C12; Second Declaration, 1987, para 39 of Part XVI; Third Declaration, 1990, para 31 (texts of the three declarations in Freestone, D and Ijlstra, T (eds) The North Sea: Basic Legal Documents on Regional Environmental Co-operation (DordrechtGraham & Trotman 1991), 3, 40 and 61); Fourth Declaration, 1995, paras 55–62;Google Scholarand Fifth Declaration, 2002, para 65 (the latter two declarations are at <http://odin.dep.no/nsc/>).).>Google Scholar

¹²¹ OJ (1998) Cl 17/122. See also Ospar Quality Status Report (available at <http://www.ospar.org>) para 4.8.2. According to the UK's Written Response in the proceedings before ITLOS (para 99), the Radiological Protection Institute of Ireland has acknowledged that radiation doses from Sellafield do not pose significant health risks to Irish people.)+para+4.8.2.+According+to+the+UK's+Written+Response+in+the+proceedings+before+ITLOS+(para+99),+the+Radiological+Protection+Institute+of+Ireland+has+acknowledged+that+radiation+doses+from+Sellafield+do+not+pose+significant+health+risks+to+Irish+people.>Google Scholar

¹²² UK Rejoinder, at 24. Ireland acknowledges this, but argues that the discharges from the MOX plant cannot be considered in isolation but must be assessed with discharges from THORP, as the latter will reprocess more spent radioactive fuel and over a longer period of time than if the MOX plant were not in operation: see Ireland's Reply, at 1. The question of whether there is a link of this kind between the MOX and THORP plants is the subject of fierce debate between Ireland and the UK. Given that THORP is responsible for not insignificant discharges into the Irish Sea, it seems a little odd that Ireland did not make pollution from THORP (or indeed the Selllafield site as a whole) the subject of litigation in its own right, rather than trying to link it to the MOX plant.Google Scholar

¹²³ Above n 9.Google Scholar

¹²⁴ See, for example, Case C-321/96 Mecklenberg v Kreis Pinneberg-Der Landrat [1998] ECR 1–3809.Google Scholar

¹²⁵ OJ (1996) L 159–1.Google Scholar

¹²⁶ Directive 85/337 on the Assessment of the Effects of Certain Public and Private Projects on the Environment, OJ (1985) L175/40, (as amended by Directives 97/11 (OJ (1997) L73/5) and 2003/35 (OJ (2003) L156/17)).Google Scholar

¹²⁷ Ireland's Memorial to the Annex VII Tribunal, at 24.Google Scholar