1 Convention for the Protection of the Marine Environment of the North-East Atlantic, 22 September 1992, 32 ILM 1069 (1992). Ireland and the United Kingdom are both Parties to the OSPAR Convention.

2 The Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft (Oslo), 932 UNTS 3 (1972), and the Convention for the Prevention of Marine Pollution from Land-based Sources (Paris), 13 ILM 352 (1974).

3 It should also be noted that the last preambular paragraph of the Rules of Procedure for this Tribunal (the “Rules of Procedure for the Tribunal Constituted Under the OSPAR Convention Pursuant to the Request of Ireland dated 15th June 2001“) provides: Whereas the Applicant and the Respondent (together, the ‘Parties’) have decided that the procedure of the arbitration of the Dispute shall be in accordance with the following rules (the ‘Rules’), which shall replace Articles 32(4) to 32(10) of the OSPAR Convention, insofar as they do not impair the rights of other States Parties to the OSPAR Convention. The OSPAR Tribunal Rules of Procedure may be found on the website of the Permanent Court of Arbitration (hereinafter “PCA“) at <www.pca-cpa.org>.

4 The declaration may be found at <www.ospar.org>, where a note from the OSPAR Secretariat follows the declaration: Following the entry into force of OSPAR Decision 98/2 on Dumping of Radioactive Waste on 9 February 1999, subparagraphs (b) and (c) of paragraph 3 of Article 3 of Annex II to the Convention ceased to have effect.

5 Ireland's Memorial, Annex 9. The Parties’ written pleadings are available at <www.pca-cpa.org.org> . Annexes are on file at the offices of the PCA.

6 UK Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (SI No. 1199).

7 Treaty Establishing the European Atomic Energy Community (“EURATOM“), 25 March 1957, 298 UNTS 167.

8 Case 187/87, Saarland and Others v. Minister for Industry, Post and Telecommunications and Tourism and Others (reference for a preliminary ruling from the tribunal administratif, Strasbourg), [1988] ECR 5013, at p. 5018.

9 European Commission Opinion under Article 37 EURATOM, 1997 OJ (C 86) 3. See United Kingdom's Counter-Memorial, Annex 9 (Vol. II).

10 Directive 96/29 EURATOM, Article 6(1), 1996 OJ (L 159) 1. Several documents cited below refer instead to an earlier version of this directive — namely, Directive 80/836 EURATOM, 1980 OJ (L 246)

11 R v. Secretary of State for the Environment and others ex parte Greenpeace Ltd., [1994] 4 All ER 352.12R (Friends of the Earth Ltd. and Greenpeace Ltd.) v. Secretary of State for the Environment, Food and Rural Affairs and Secretary of State for Health. [2001] EWHC Admin. 914, at para. 8.4The declaration may be found at <www.ospar.org>, where a note from the OSPAR Secretariat follows the declaration:

4 Following the entry into force of OSPAR Decision 98/2 on Dumping of Radioactive Waste on 9 February 1999, subparagraphs (b) and (c) of paragraph 3 of Article 3 of Annex II to the Convention ceased to have effect.

5 Ireland's Memorial, Annex 9. The Parties’ written pleadings are available at <www.pca-cpa.org.org> . Annexes are on file at the offices of the PCA.

6 UK Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (SI No. 1199).

7 Treaty Establishing the European Atomic Energy Community (“EURATOM“), 25 March 1957, 298 UNTS 167.

8 Case 187/87, Saarland and Others v. Minister for Industry, Post and Telecommunications and Tourism and Others (reference for a preliminary ruling from the tribunal administratif, Strasbourg), [1988] ECR 5013, at p. 5018.

9 European Commission Opinion under Article 37 EURATOM, 1997 OJ (C 86) 3. See United Kingdom's Counter-Memorial, Annex 9 (Vol. II).

10 Directive 96/29 EURATOM, Article 6(1), 1996 OJ (L 159) 1. Several documents cited below refer instead to an earlier version of this directive — namely, Directive 80/836 EURATOM, 1980 OJ (L 246) 1.

11 R v. Secretary of State for the Environment and others ex parte Greenpeace Ltd., [1994] 4 All ER 352.

12 R (Friends of the Earth Ltd. and Greenpeace Ltd.) v. Secretary of State for the Environment, Food and Rural Affairs and Secretary of State for Health. [2001] EWHC Admin. 914, at para. 8.

13 As argued by Counsel for the United Kingdom, Oral Hearing Transcript (hereinafter “Transcript“), Day 2 Proceedings, pp. 64-66. Transcripts are available at <www.pca-cpa.org>.

14 Letter from I.T. Porter, Environment Agency to statutory consultees (February 5, 1997), at Tab 1, p. 2, in SMP Consultation Documents Bundle (“SMP Bundle“), on file at the offices of the PCA.

15 “UK Environment Agency, Radioactive Substances Act 1993, Explanatory Memorandum for the Consultation on Justification and Uranium Commissioning of Sellafield Mox Plant (SMP), British Nuclear Fuels pic at Sellafield,” in SMP Bundle, at Tab 1, p. 3, para. 1.3(1997).

16 Id., at p. 4, para. 1.6.

17 Id., at p. 11, para. 6.2.

18 “Sellafield MOX Plant (SMP)”, attachment to Letter from Robert Anderson of BNFL to the UK Environment Agency (January 27, 1997), in SMP Bundle, at Tab 1, p. 13.

19 Ireland's Memorial, Annex 4, at No. 2.

20 Ibid.

21 Letter from UK Environment Agency to Friends of the Earth (January 14, 1998), in SMP Bundle, at Tab 2.

22 “UK Environment Agency, Explanatory Memorandum for a Further Public Consultation on the Application by BNFL for the Commissioning and Operation of the Mixed Oxide Fuel Plant at its Sellafield site in Cumbria,” in SMP Bundle, at Tab 2, p. 4, para. 2.2(1998).

23 Id., at p. 4, para. 2.3.

24 Id., at pp. 1-2.

25 id.atp. 2.

26 UK Environmental Information Regulations 1992 (SI No. 1992/3240).

27 “PA Consulting Group, Environment Agency Final Report — Public Domain Version; Assessment of BNFL's Economic Case for the Sellafield MOX Plant,” in SMP Bundle, at Tab 2, pp. 1-1 to 1-6 (1997).

28 Ireland's Memorial, Annex 4, at No. 3.

29 “UK Environment Agency, Radioactive Substances Act 1993, Document Containing the Agency's Proposed Decision on the Justification for the Plutonium Commissioning and Full Operation of the MOX Plant, BNFL pic. at Sellafield,” in SMP Bundle, Tab 2, at para. 22(1998).

30 Id., at para. 31.

31 Counsel for the United Kingdom, Transcript, Day 2 Proceedings, p. 69.

32 Letter from UK DETR & MAFF (June 11, 1999), in SMP Bundle, at Tab 3.

33 Ireland's Memorial, Annex 4, at No.4

34 Directive 90/313/EEC, 1990 OJ (L 158) 56.

36 Id., at No. 10.

37 “UK Department of Health and DETR, British Nuclear Fuels pic. — Sellafield Mixed Oxide Plant: A Consultation Paper,” in SMP Bundle, at Tab 4, p. 5, para. 10 (2001).

38 Ireland's Memorial, Annex 4, at No. 13.

39 Letter from UK Department of Environment, Food, and Rural Affairs (“DEFRA“) and Department of Health (July 27,2001), in SMP Bundle, at Tab 5.

40 United Kingdom's Counter-Memorial, para. 2.22.

41 Ibid.

42 Ireland's Memorial, Annex 4, at No. 15.

43 Ireland's Memorial, Annex 5.

44 See supra note 12.

45 Friends of the Earth Ltd. & ANR, The Queen on the Application ofv. 46Secretary of State for the Environment, Food and Rural Affairs & ORS, [2001] EWCA Civ. 1847.

46 The MOX Plant Case (Ireland v. United Kingdom),Request for Provisional Measures, Order Dated December 3, 2001, International Tribunal for the Law of the Sea, Case No. 10. Available from <www.itlos.org>.

47 Ireland's Memorial, Annex 4, at No. 15.

48 Id., at No. 17.

49 Id., at No. 16.

50 Ireland's Memorial, para. 2.

51 United Kingdom's Counter-Memorial, paras. 1.4, 1.5, 1.6.

52 Vienna Convention on the Law of Treaties, 23 May 1969, 1155UNTS331.

53 Counsel for Ireland, Transcript, Day 1 Proceedings, pp. 23-24.

54 Id. and Counsel for the United Kingdom, Transcript, Day 2 Proceedings, p. 75.

55 Identical language is repeated in Article 19 of the Rules of Procedure for the OSPAR Tribunal.

56 See Ireland's Memorial, Annex 8. Also available from <www.ospar.org>.

57 Case Concerning Nuclear Tests (Australia v. France), Judgment of 20 December 1974, 1974 ICJ Rep. 253, at p. 266, para. 43.

58 Ireland's Memorial, para. 117.

59 Declaration of the UN Conference on Environment and Development, 31ILM 874 (1992).

60 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 25 June 1998, 38 ILM 517 (1999).

61 Ireland's Reply, para. 42.

62 Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment of 24 February 1982, 1982 ICJ Rep. 18, at p. 23.

63 See Ireland's Reply, para. 42.

64 Case Concerning the Gabcíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997,1997 ICJ Rep., at p. 7. para. 140.

65 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ Rep., at p. 3.

66 OPPENHEIM'S INTERNATIONAL LAW, NINTH EDITION, at 1281-1282 (Sir Robert Jennings and Sir Arthur Watts eds., Longman, 1996).

67 See Ireland's Reply, para. 42.

68 United Kingdom's Counter-Memorial, para. 1.4.

69 Id, para. 3.4.

70 Id, paras. 3.8-3.9.

71 Id, para. 3.9.

72 Id, para. 3.11.

73 Id, paras. 3.11-3.13.

74 Ireland's Reply, para. 7.

75 Id, paras. 8-9.

76 Counsel for Ireland, Transcript, Day 1 Proceedings, p. 39.

77 Counsel for Ireland, Transcript, Day 1 Proceedings, p. 38.

78 Ibid.

79 Counsel for Ireland, Transcript, Day 1 Proceedings, pp. 38-39; Day 4 Proceedings, pp. 14-23.

80 Counsel for Ireland, Transcript, Day 1 Proceedings, p. 41.

81 Counsel for Ireland, Transcript, Day 4 Proceedings, pp. 18-24.

82 Ireland's Reply, paras. 8-9; Counsel for Ireland, Transcript, Day 4 Proceedings, pp. 21-22.

83 Counsel for the United Kingdom, Transcript, Day 2 Proceedings, p. 76.

84 Id, pp. 76-77.

85 United Kingdom's Rejoinder, para. 12.

86 id,para. 14.

87 Id, para. 13.

88 See United Kingdom's Counter-Memorial, para. 3.12.

89 Counsel for the United Kingdom, Transcript, Day 2 Proceedings, p. 85.

90 See, e.g., United Kingdom's Counter-Memorial, paras. 3.1-3.3; United Kingdom's Rejoinder, para. 14; Counsel for Ireland, Transcript, Day 1 Proceedings, pp. 23-24.

91 United Kingdom's Counter-Memorial, para. 3.9. See also Counsel for Ireland, Transcript, Day 1 Proceedings, pp. 24-25; Counsel for the United Kingdom, Transcript, Day 2 Proceedings, pp. 78-79; Counsel for Ireland, Transcript, Day 4 Proceedings, p. 21.

92 See Article 249 of the Treaty Establishing the European Community (“EC Treaty“), 2002 OJ (C 325), as cited in the United Kingdom's Counter-Memorial, para. 3.11.

93 Ibid.

94 United Kingdom's Rejoinder, para. 13.

95 Id, para. 51.

96 United Kingdom's Counter-Memorial, paras. 3.13-3.15.

97 In 2001 the ITLOS was confronted with a similar situation. In response to the jurisdictional objections raised by the United Kingdom, it remarked that “since the dispute before the Annex VII arbitral tribunal concerns the interpretation or application of the [UNCLOS] and no other agreement, only the dispute settlement procedures under the Convention are relevant to that dispute.” See The Mox Plant Case, supra note 46, para. 52.

98 International Liability for injurious consequence arising out of acts not prohibited by international law (prevention of transboundary harm from hazardous activities), Report of the International Law Commission, 53rd Session, Supp. No. 10, UN Doc. A/56/10, 44 (2001).

99 LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, 1999 ICJ Rep. 9, at p. 16, para. 28.

100 Vienna Convention on Consular Relations, 24 April 1963, 596 UNTS 261.

101 Counsel for Ireland, Transcript, Day 1 Proceedings, p. 43. Ireland also submitted that “the ICJ made it clear that its function was to review the merits of whether the United States had complied with obligations to ensure consular access to an individual in the United States, a German national.” Id., at p. 35.

102 Ireland's Memorial, para. 98.

103 Id., at para. 99.

104 Counsel for Ireland, Transcript, Day 1 Proceedings, p. 52.

105 Ireland's Memorial, para. 101.

106 C-321/96, Mecklenburg v. Kreis Pinneberg -Der Landrat, [1999] 2 CMLR 418, 435.

107 Counsel for Ireland, Transcript, Day 1 Proceedings, p. 48.

108 Id., p. 50.

109 United Kingdom's Counter-Memorial, para. 4.2.

110 Id., para. 4.7.

111 Id., para. 4.3.

112 Ibid.

113 Id., para. 4.4.

114 Counsel for the United Kingdom, Transcript, Day 2 Proceedings, p. 86.

115 Id., at p. 87.

116 Letter from the Agent for Ireland to the Secretary of the Tribunal (February 21, 2003), on file at the PC A.

117 Ibid.

118 Letter from the Agent for the United Kingdom to the Secretary of the Tribunal (February 21, 2003), on file at the PC A.

119 Ireland's Memorial, para. 75. Ireland also provided more detailed lists of specific items deleted from the PA and ADL Reports in its Memorial Annexes 3 and 3 B, respectively.

120 Counsel for Ireland, Transcript, Day 1 Proceedings, p. 50.

121 Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, 21 June 1993, ETS 150.

122 See supra note 106.

123 Id., at para. 20.

124 The Tribunal notes a minor discrepancy between the language of the Directive and that of the OSPAR Convention - namely, that the former includes the phrase “likely so to affect” (italics supplied) rather than “likely to affect.” However, the drafting history in the record gives no indication that the word “so” was dropped with meaningful intent, and it is the Tribunal's view that the phrases were both intended to express a requirement of adverse effect of potential activities as well as current ones.

125 Supra note 106, at para. 6. Curiously, the adverb “adversely” appears to have been dropped in the Umweltinformationsgesetz of 8 July 1994 which transposed the Directive into German law.

1 Convention for the Protection of the Marine Environment of the North-East Atlantic, 22 September 1992, 32 ILM 1069 (1992).

2 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331.

3 Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment of 22 July 1952, 1952 ICJ Rep. 93, at p. 105.

4 The Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft (Oslo), 932 UNTS 3 (1972), and the Convention for the Prevention of Marine Pollution from Land-based Sources (Paris), 13 ILM 352 (1974).

5 Directive 90/313/EEC, 1990 OJ (L 158) 56.

6 Directive 2003/4/EC on Public Access to Environmental Information and Repealing Council Directive 90/313/EEC, 2003 OJ (L 41).

7 International Liability for injurious consequences arising out of acts not prohibited by international law (prevention of transboundary harm from hazardous activities), Report of the International Law Commission, 53rd Session, Supp. No. 10, UN Doc. A/56/10, 366 (2001).

8 Id., at p. 398.

9 Id., at p. 399 (italics supplied).

10 LaGrand (Germany v. United States of America), Judgment of 27 June 2001, 2001ICJ Rep. 104.

11 Id., at para. 125.

1 Convention for the Protection of the Marine Environment of the North-East Atlantic, 22 September 1992, 32 ILM 1069 (1992).

2 This and all further paragraph references, unless otherwise indicated, are to the Majority Opinion.

3 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 25 June 1998, 38 ILM 517 (1999).

4 United Kingdom's Counter-Memorial, para. 4.13. Counsel for the United Kingdom, Transcript, Day 2 Proceedings, p. 52 and p. 87.

5 United Kingdom's Counter-Memorial, para. 273.

6 See, for instance, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 1951, 1951 ICJRep. 15, at p. 23.

7 Diversion of Water from the River Meuse, 1937 PCIJ (Ser. A) No. 70, at 21.

8 Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, 1986 ICJ Rep. 14, at para. 275.

9 Willem Riphagen, State Responsibility: New Theories of Obligations in Interstate Relations, in THE STRUCTURE AND PROCESS OF INTERNATIONAL LAW 581 et seq., and at 601 (R. St.J. McDonald and D.M. Johnson, eds., 1983). See also the Nicaragua case, supra fn. 8, paras. 270-182.

10 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgment of 16 March 2001, 2001 ICJ Rep. 40, at para. 89.

11 In its Judgment, the ICJ held that “the Anglo-Ottoman Convention does represent evidence of the views of Great Britain and the Ottoman Empire as to the factual extent of the authority of the Al-Then ruler in Qatar up to 1913.” Further, the ICJ gave special consideration to the unambiguous language of the 1913 Treaty and the fact that Article 11 of the said treaty was later incorporated into the Anglo-Ottoman Treaty of 1914. Id., at paras. 89-91.

12 On 15 July 2002, the United Kingdom Department of Environment, Food and Rural Affairs (“DEFRA“) launched a “public consultation period for new Environmental Information Regulations, illustrating the government's commitment to freedom of information and to greater openness and transparency …. The new regulations are a step towards the full implementation of the Freedom of Information Act 2000 and will enable the UK to fulfil its obligations under the UNECE (United Nations Economic Commission for Europe) ‘Aarhus Convention'”. See DEFRA's website at <www.defra.gov.uk>.

13 Public Access to Environmental Information. Proposals for a Revised Regime. Regulatory Impact Assessment. Proposal fora Directive of the European Parliament and of the Council on Public Access to Environmental Information [COM(2000) 402 Final]. This document can be found at DEFRA's website at< www.defra.gov.uk>.

14 Id., para. 4.

15 Id., para. 1.

16 Id., paras. 9, 12, 16, and others.

17 Ireland's Memorial, paras. 100-101.

18 Directive 90/313/EEC, 1990 OJ (L 158) 56.

19 See, for instance, Counsel for Ireland, Transcript, Day 1 Proceedings, p. 26: “Directive 90/313 whose provisions are to all intents and purposes identical to those of Article 9“; Counsel for the United Kingdom, Transcript, Day 2 Proceedings, p. 78: “The travaux confirm that the wording of Articles 9(1) and 9(3) were specifically amended in order to secure conformity with Articles 3(1) and (2) of Directive 90/313/EEC.“

20 The OSPAR Convention has been signed by the representatives of the EC Commission on behalf of the European Union. See <http://www.ospar.org/eng.>

21 It should be noted that the 1969 Vienna Convention on the Law of Treaties does not include international organisations in the definition of a party to an international agreement (see Article l(g)). However, there are claims as to the emergence of customary rules on this issue. The capacity of international organisations to conclude international agreements and participate in the interpretation and modification of their terms has been recognised by the International Law Commission itself. See, for instance, the Preamble to the 1986 Convention on the Law of Treaties Between States and International Organisations or Between International Organisations. Article 31 of the 1986 Convention is identical to Article 31 of the 1969 Vienna Convention on the Law of Treaties.

22 ”… The same usage is to be found in the practice of States. Typically, in their enactments and administrative acts, States describe such measures by reference to such criteria as … (see, among very many examples, Algerian Legislative Decree No. 94-13 of 28 May 1994 … as well as, for the European Union, the basic texts formed by Regulation (EEC) No. 3760/92 of 20 December 1992, establishing a Community system for fisheries and aquaculture, and Regulation (EC) No. 894/97 of 29 April 1997, laying down certain technical measures for the conservation of fisheries resources. For NAFO practice, see its document entitled Conservation and Enforcement Measures (NAFO/FC/Doc. 96/1)). International law thus characterizes ‘conservation and management measures’ by reference to factual and scientific criteria.” See Fisheries Jurisdiction (Spain v. Canada), Judgment of 4 December 1998, 1999 ICJ Rep., para. 70.

23 Directive 2003/4/EC on Public Access to Environmental Information and Repealing Council Directive 90/313/EEC, 2003 OJ (L 41).

24 See, in particular, para. 5 of Directive 2003/4 which reaffirms that it is meant to bring EU legislation in accord with the Aarhus Convention.

25 Ireland's Reply, pp. 15-16, para. 102.

26 Case Concerning the Gabcíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997,1997 ICJ Rep., at p. 7. para. 140.

27 C-321/96, Mecklenburg v. Kreis Pinneberg - Der Landrat, [1999] 2 CMLR 418, 435, at para. 21.

28 [1999]Envtl. L. Rev. 447, 470.

29 Counsel for Ireland, Transcript, Day 1 Proceedings, pp. 43-44.

30 See Ireland's Memorial, para. 96. See also United Kingdom's Counter-Memorial, para. 4.2; Counsel for Ireland, Transcript, Day 1 Proceedings, p. 50; Counsel for the United Kingdom, Transcript, Day 2 Proceedings, p. 86.

31 Counsel for Ireland, Transcript, Day 1 Proceedings, pp. 5-11 and 26.

32 In Ireland's words, ”… [I]t is self-evident that the information in both Reports constitutes information ‘on activities .. . adversely affecting or likely to affect [the maritime area]’ within the meaning of Article 9(2)…. MOX production is an activity which will inevitably and certainly affect the maritime area, including Ireland's waters. It will do so principally in three ways: (1) routine (intentional) discharges from MOX; (2) routine (intentional) discharges from THORP, due to the intensification of activity aimed at producing materials for the MOX plant; (3) discharges from possible accidents or terrorist attacks, either from the MOX plant itself or from transports of radioactive waste to, or MOX from, the plant.” See Ireland's Memorial, para. 96. See also United Kingdom's Counter-Memorial, para. 4.2; Counsel for Ireland, Transcript, Day 1 Proceedings, p. 48.

33 Ireland's Memorial, para. 97. In support of this argument Ireland refers to the Sintra Ministerial Statement of 1998, in which the UK has itself recognised the long-term damage done to the marine environment by radioactive discharges, and has undertaken to reduce background radiation to “close to zero” by 2020. Ibid. See also Ireland's Memorial, Annex 5, referring to DEFRA Decision of October 2001. See also Ireland's Reply, para. 12; Counsel for Ireland, Transcript, Day 1 Proceedings, pp. 46-48.

34 United Kingdom's Counter-Memorial, para. 4.3.

35 Counsel for the United Kingdom, Transcript, Day 2 Proceedings, p. 86.

36 United Kingdom's Counter-Memorial, paras. 4.8-4.9.

37 Counsel for the United Kingdom, Transcript, Day 2 Proceedings, pp. 62-63.

38 Counsel for Ireland, Transcript, Day 1 Proceedings, p. 48. See also para. 66 of the Written Outline of submissions on behalf of Ireland on file at the Permanent Court of Arbitration (Professor Sands): “the information relates to commercial activity, but it is (presumably) not in dispute that the consequences of the activity may be harmful to the environment.“

39 Counsel for Ireland, Transcript, Day 1 Proceedings, p. 48. In support of this statement Ireland refers, amongst others, to the case ex pane Alliance against Birmingham Northern Relief Road: “the fact that that Agreement can be described as a commercial document does not mean that it does not contain information which relates to the environment.“

40 Counsel for the United Kingdom, Transcript, Day 2 Proceedings, pp. 68-69.

41 Id., p. 86.

42 See Ireland's Memorial, para. 96. See also United Kingdom's Counter-Memorial, para. 4.2; Counsel for Ireland, Transcript, Day 1 Proceedings, p. 46; Counsel for the United Kingdom, Transcript, Day 2 Proceedings, p. 85.

43 United Kingdom's Counter-Memorial, para. 4.3.

44 Counsel for the United Kingdom, Transcript, Day 2 Proceedings, pp. 62-63.

45 While the United Kingdom does not admit that explicitly in the proceedings, it at the same time submits that the information on potential environmental impacts of the MOX Plant has been made available to Ireland: “Ireland has known for many years what the liquid and gaseous discharges from the MOX Plant are likely to be; it has known for many years what the radiological impact of the MOX Plant is likely to be (and moreover it does not challenge the United Kingdom's estimates on radiation doses from the MOX Plant).” United Kingdom's Counter-Memorial, para. 4.7. See also Counsel for the United Kingdom, Transcript, Day 2 Proceedings, p. 86.

46 While one might contest the customary nature of the precautionary principle, on this matter I am guided by the views expressed by the European Union institutions. Amongst others, in 2000 the European Commission issued a Communication on Precautionary Principle, in which it suggested that the principle “has been progressively consolidated in international environmental law, and so it has since become a full-fledged and general principle of international law.” In support of its position the Commission cited international legal instruments, EU legislation as well as its own practice, and in particular: Ministerial Declaration of the Second International Conference on the Protection of the North Sea (1987); Convention on Biological Diversity (1992); Framework Convention on Climate Change (1992); Paris Convention for the Protection of the Marine Environment of the North-East Atlantic (22 September 1992) and WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS); Resolution of the European Parliament of 10 March 1998 concerning the Green Paper on the General Principles of Food Law in the European Union of 30 April 1997, Council Resolution of 13 April 1999 and Resolution of the Joint Parliamentary Committee of the EEA (European Economic Area) of 16 March 1999 (Annex I, Refs. 8-12); Communication of 30 April 1997 on consumer health and food safety (COM(97) 183 final), Green Paper on the General Principles of Food Law in the European Union of 30 April 1997 (COM(97) 176 final). See European Commission Communication on the Precautionary Principle, COM(2000) 1. See <http://europa.eu.int/comm/food/fs/ifsi/eupositions/ccgp/ccgp01_en.html> Shortly after the circulation of the Communication, the Nice Council adopted a Resolution reiterating that “the precautionary principle is gradually asserting itself as a principle of international law in the fields of environmental and health protection.” See Presidency Conclusions, Nice European Council Meeting, 7, 8 and 9 December 2000, Annex III, Council Resolution on the precautionary principle. See, in particular, para. 3.

47 Article 2( 1 )(a) of the OSPAR Convention reads:” the Contracting Parties shall, in accordance with the provisions of the Convention, take all possible steps to prevent and eliminate pollution and shall 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.“

48 Communication from the EC Commission on the precautionary principle. COM(2000) 1, para. 6.4. See also the following observation: “the main effect of the [precautionary] principle … is to require states to submit proposed activities affecting the global commons to international scrutiny.” Patricia W. Birnie and Alan E. Boyle, International Law and the Environment, at 98 (1995).

49 See United Kingdom's Counter-Memorial, para. 4.3.

50 See United Kingdom's Counter-Memorial, para. 4.8. In its oral representations Ireland summarised the main arguments employed by the United Kingdom: “What does the United Kingdom say? It makes three arguments. Firstly, the information is of a purely commercial character; secondly, the information is not directly and proximately related to activities or measures adversely affecting or likely to affect the maritime area and, thirdly, Ireland's approach is based on the Mecklenburg case of the European Court of Justice, which is not on point, and the Aarhus Convention which is not applicable in the exercise of the progressive development which is not in force.” Counsel for Ireland, Transcript, Day 1 Proceedings, p. 46. Wholly aside from the question whether this summary is correct, Ireland perceived the United Kingdom's position in the way described and focused its defence on refuting the above submissions.

51 Oxford English Dictionary, 2nd ed.

52 Counsel for the United Kingdom, Transcript, Day 2 Proceedings, pp. 62-63.

53 The Mox Plant Case (Ireland v. United Kingdom), Request for Provisional Measures, Order Dated December 3, 2001, International Tribunal for the Law of the Sea, Case No. 10. The Order of the Tribunal and the transcript of the Parties’ written and oral submissions can be accessed on the ITLOS web site at <http://www.itlos.org>. Oral hearings took place in Hamburg on 19 and 20 November 2001.

54 This particular issue was not within its mandate.

55 Supra note 53, dispositif, para. 1.

56 Official statement by Joe Jacob, TD, Minister with responsibility for Nuclear Safety, of 26 October 2002, citing a Notification by Ireland of the “Dispute Concerning the MOX Plant, International Movements of Radioactive Materials, and the Protection of the Marine Environment of the Irish Sea” with a Statement of Claim and Grounds upon which it is based. Published at <http://www.irlgov.ie/tec/pres01/october26th01.htm>.

57 See, for instance, Commission Opinion of 26 November 2002 concerning the plan for the disposal of radioactive waste arising from the operation of the MOX Demonstration Facility at Sellafield located in the United Kingdom, in accordance with Article 37 of the EURATOM Treaty, 2002 OJ (C 292), pp. 0007-0008. See also Written Question E-0649/02 by European Parliament, Nuala Ahern (Verts/ALE), to the Commission on the subject of radioactive discharges, 2002 OJ (C 229), pp. 0113-0114.

58 See, amongst others, Ireland's Memorial, paras. 19-23 and 96-97.

59 See, for instance, Ireland's Reply, paras. 12-13.

60 See, amongst others, Counsel for Ireland, Transcript, Day 1 Proceedings, pp. 61-62.

61 Counsel for the United Kingdom, Transcript, Day 2 Proceedings, pp. 62-63.

62 Ireland's Memorial, Annex 9.

63 See paras. 22-31 of the Proposed Decision. Ireland's Memorial, Annex 5.

64 See Decision of the Secretary of State for Environment, Food and Rural Affairs and the Secretary of State for Health of October 3, 2001, paras. 56-70. Ireland's Memorial, Annex 5.

65 See paras. 56-70 of the 2001 Decision. Ireland's Memorial, Annex 5.

66 See the 1998 Sintra Ministerial Statement. Ireland's Memorial, Annex 8.

67 See Partial Bibliography on Causation, compiled by Ellery Eels and Dan Hausmann, published at <http://www.vanderbilt.edu/quantmetheval/causality.htm>.

68 Counsel for the United Kingdom, Transcript, Day 1 Proceedings, p. 92. United Kingdom's Counter-Memorial, para. 4.12.

69 See, for instance, the following statement: “the material words of that provision [Article 9(2)] cover only information which is directly and proximately related to the state of the maritime area or to activities or measures adversely affecting or likely to affect the maritime area.” United Kingdom's Counter-Memorial, para. 4.8.

70 Ireland maintains that even though Article 9(2) does not contain such a condition, both the PA and ADL Reports meet the requirement of directness and proximity. See Counsel for Ireland, Transcript, Day 1 Proceedings, pp. 49-50.

71 United Kingdom's Counter-Memorial, para. 4.12.

72 Id., footnote 5, at pp. 3-4.

73 Id., para. 1.3.

74 Ireland's Memorial, para. 40; Counsel for Ireland, Transcript, Day 1 Proceedings, p. 11 and Day 4 Proceedings, p. 66. See also Letter from Renee Dempsey to Michael Wood, 7 August 2001, para. 13. See also the Second MacKerron Report which reads: “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. 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.” (Appendix B, para. B.I.I). Ireland's Reply, para. 34.

75 United Kingdom's Counter-Memorial, para. 4.10; Counsel for the United Kingdom, Transcript, Day 2 Proceedings, p. 67.

76 Counsel for the United Kingdom, Transcript, Day 2 Proceedings, p. 96.

77 See, for instance, the following statement: “given its conclusion on environmental and other issues, that the balance is broadly neutral, the draft decision then went on to consider the economic case concluded that there was a case for approval. This is the point in the stage of consultations at which consideration of the environmental issues was concluded and from this point onwards, essentially, the issues being considered are no longer environmental, … the issues considered hereafter were the commercial arguments for and against the plant or the process.” Counsel for the United Kingdom, Transcript, Day 2 Proceedings, pp. 68-69.

78 Counsel for Ireland, Transcript, Day 1 Proceedings, p. 48.

79 Supra note 38.

80 Supra note 39.

81 Written outline of submissions on behalf of Ireland, on file at the offices of the PCA (Professor Sands), para. 62.

82 Counsel for Ireland, Transcript, Day 1 Proceedings, p. 26. See also the following statement: “the very purpose of the PA and ADL reports is to examine the justification of the MOX plant taking into account all economic costs and those economic costs include the cost of environmental consequences, include the costs of ensuring against environmental damage, include the costs of ensuring against transport accidents, include the costs of ensuring that the plant is safe and complies with all domestic and international environmental standards.” Counsel for Ireland, Transcript, Day 1 Proceedings, p. 46.

83 Ireland's Memorial, para. 37; United Kingdom's Counter-Memorial, para. 1.13; Counsel for Ireland, Transcript, Day 1 Proceedings, p. 6; Counsel for the United Kingdom, Transcript, Day 2 Proceedings, p. 64.

84 Ireland's Memorial, para. 38.

85 See, for instance, United Kingdom's Counter-Memorial, paras. 1.3 and 1.11.

86 Supra fn. 64; United Kingdom's Counter-Memorial, paras. 2.22-2.23; Counsel for the United Kingdom, p. 73.

87 Supra fn. 64, para. 13.

88 Id, para. 28.

89 See supra fn. 64, paras. 13-20.

90 See, in particular, paras. 76-77, 85 and 89 of the DEFRA Decision.

91 Supra fn. 64, para. 13.

92 United Kingdom's Counter-Memorial, footnote 5, at pp. 3-4.

93 ADL Report, para. 1.

94 In his testimony, Mr. MacKerron alleges that “justification has been established in prior cases as amounting to net economic advantage which should outweigh any radiological betterment.” See Testimony of Mr. Gordon MacKerron, Transcript, Day 2 Proceedings, p. 6.

95 Counsel for the United Kingdom, Transcript, Day 2 Proceedings, p. 96.

96 Counsel for Ireland, Transcript, Day 1 Proceedings, p. 48.

97 Ireland's Memorial, para. 100. Counsel for Ireland, Transcript, Day 1 Proceedings, pp. 55-57.

98 Article 2(3) of the Aarhus Convention reads as follows: 'Environmental information’ means any information in written, visual, aural, electronic or any other material form on: … (b) Factors, such as substances, energy, noise and radiation, and activities or measures, including administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect the elements of the environment within the scope of subparagraph (a) above, and cost-benefit and other economic analyses and assumptions used in environmental decision-making;…

99 Counsel for Ireland, Transcript, Day 1 Proceedings, p. 52.

100 See, e.g., Mecklenburg, supra note 27, Ireland's Memorial, para. 102. Counsel for Ireland, Transcript, Day 1 Proceedings, p. 55.

101 Counsel for Ireland, Transcript, Day 1 Proceedings, pp. 56-57.

102 United Kingdom's Rejoinder, para. 21. Counsel for the United Kingdom, Transcript, Day 2 Proceedings, p. 51.

103 See, for instance, the United Kingdom's interpretation of the conclusions reached by the ECJ in the Mecklenburg case. United Kingdom's Counter-Memorial, para. 4.11.

104 In the UK's view, the definition of the Aarhus Convention reflects “an exercise of progressive development of the law relating to 'environmental information'.” United Kingdom's Counter-Memorial, para. 4.13.

105 See, in particular, Counsel for Ireland, Transcript, Day 1 Proceedings, pp. 68-71; United Kingdom's Counter-Memorial, para. 4.13.

106 See also “Report from the Commission to the Council and the European Parliament on the experience gained in the application of Council Directive 90/313/EEC on freedom of access to information on the environment” (COM(2000) 400 final). See Counsel for the United Kingdom, Transcript, Day 2 Proceedings, p. 87; Outline of written submissions on behalf of the United Kingdom (Mr. Wordsworth); the “Proposal for a Directive of the European Parliament and of the Council on public access to environmental information” (COM(2000) 402 final. Counsel for the United Kingdom, Transcript, Day 2 Proceedings, p. 88); “Amended Proposal for a Directive of the European Parliament and of the Council on public access to environmental information” (COM(2001) 303 final); Common Position “with a view to adopting Directive 2002/…/EC … on public access to environmental information and repealing Council Directive 90/313/EEC” (Counsel for the United Kingdom, Transcript, Day 2 Proceedings, pp. 88-90); DEFRA “Proposals for a revised public access to environmental information consultation paper” (Ireland, Authorities Bundle 1, Tab 5, paras. 13-15. See also Counsel for Ireland, Transcript, Day 1 Proceedings, pp. 52-53. But see Oral Pleadings, Counsel for the United Kingdom, Transcript, Day 2 Proceedings, p. 88). 106See, for instance, para. 14 of the DEFRA “Proposals for a revised public access to environmental information consultation paper“: “the definition of environmental information is clarified to refer specifically to the atmosphere, landscape, biological diversity etc. It is also defined to include cost benefit economic analyses and other assumptions used in the decision making process.” Para. 15 further states that “these are minor changes. They are not expected to broaden the practical application of the regime.“

107 Para. 10 of the Common Position reads: “The definition of environmental information should be clarified so as to encompass …“Common Position “with a view to adopting Directive 2002/EC … on public access to environmental information and repealing Council Directive 90/313/EEC” (Counsel for the United Kingdom, Transcript, Day 2, p. 90).

108 “Report from the Commission to the Council and the European Parliament on the experience gained in the application of Council Directive 90/313/EEC on freedom of access to information on the environment,” COM(2000) 400 final. See Counsel for the United Kingdom, Transcript, Day 2 Proceedings, p. 88; Outline of written submissions on behalf of the United Kingdom (Mr. Wordsworth).

109 Supra fn. 23.

110 Id., para. 10.

111 Ireland's Memorial, para. 100. Counsel for Ireland, Transcript, Day 1 Proceedings, p. 52. Counsel for the United Kingdom, Transcript, Day 2 Proceedings, p. 89.

112 United Kingdom's Counter-Memorial, para. 4.13.

113 See Mecklenburg, supra note 27.

114 See para. 18 of the Judgement.

115 Id., para. 20.

116 See Letter from the Agent for Ireland to the Secretary of the Tribunal (February 21, 2003), footnote 4 on p. 2 providing a summary of Ireland's claims to that effect.

117 See, for instance, the following statement: “what is at issue here is a measure and the measure is the process of justification.” Counsel for Ireland, Transcript, Day 4 Proceedings, p. 56.

118 Supra fn. 64.