Ireland v. United Kingdom (OSPAR Arbitration)
This matter concerned a dispute between Ireland and the United Kingdom in connection with the commissioning of the mixed oxide nuclear fuel reprocessing plant (“MOX Plant”) in the United Kingdom on the coast of the Irish Sea in 1996. As part of the approval process, two confidential reports on the economic justifications of the MOX Plant were prepared by private consulting firms for governmental consideration. The reports were released to the public in redacted form, omitting information that was deemed to be commercially sensitive.
Ireland objected to the commissioning of the MOX Plant and requested access to the information redacted from the reports, asserting that it had the right to receive this information under Article 9 of the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic signed at Oslo and Paris (“OSPAR Convention”). The United Kingdom denied that the information fell within the ambit of Article 9 of the OSPAR Convention. On June 15, 2001, Ireland initiated arbitral proceedings pursuant to Article 32 of the OSPAR Convention.
The questions submitted to arbitration were the following: (i) Does Article 9(1) of the OSPAR Convention require a contracting party to disclose, or to set up a procedure to disclose, “information” within the meaning of Article 9(2)? (ii) If so, does the material, the disclosure of which Ireland has requested, constitute “information” for the purpose of Article 9 of the OSPAR Convention? (iii) If so, has the United Kingdom redacted and withheld any information requested by Ireland, in contravention of Article 9(3)(d) of the OSPAR Convention?
The Tribunal found that Article 9(1) of the OSPAR Convention gave rise to an obligation to provide “information” meeting the definition of Article 9(2) and that this obligation could not be satisfied by merely setting up a procedure for the disclosure of such information; rather, Article 9(1) of the OSPAR requires an outcome of result.
Ireland argued that Article 9(2) of the OSPAR did not require that the information sought relate directly to activities that adversely affected the maritime area. The Tribunal held that the issue to be decided was the application of Article 9(2) specifically to the fourteen categories of information redacted from the reports, none of which could plausibly be characterized as information on the state of the maritime area. The Tribunal concluded that Ireland had not established that the class of the redacted information it was seeking fell within the scope of Article 9(2) of the OSPAR Convention. As a consequence, it held that Ireland’s claim in relation to the alleged breach of Article 9(3)(d) of the OSPAR Convention did not arise.
Professor W. Michael Reisman issued a declaration in relation to his view of the interpretation of Article 9(1) of the OSPAR Convention. Dr. Gavan Griffith QC issued a dissenting opinion concerning the law applicable to the interpretation of the OSPAR Convention; the scope of Article 9(2) of the Convention; and the burden of proof.
|Name(s) of Claimant(s)||
|Name(s) of Respondent(s)||The United Kingdom of Great Britain and Northern Ireland (State)|
|Names of Parties||-|
|Administering institution||Permanent Court of Arbitration (PCA)|
|Type of case||Inter-state arbitration|
|Subject matter or economic sector||Treaty interpretation|
|Rules used in arbitral proceedings||Ad Hoc Rules of Procedure|
|Treaty or contract under which proceedings were commenced||-|
|Language of Proceeding||English|
|Seat of Arbitration (by Country)||Netherlands|
Professor W. Michael Reisman (Chairman)
Mr Gavan Griffith, QC
Rt Hon. Lord Mustill, PC
|Representatives of the Claimant(s)||
Mr. David J. O'Hagan, Chief State Solicitor (Agent)
Mr. Rory Brady (Attorney General)
Mr. Eoghan Fitzsimons (Senior Counsel)
Professor Philippe Sands (Counsel)
|Representatives of the Respondent(s)||
Mr. Michael Wood, Legal Adviser, Foreign and Commonwealth Office (Agent)
Dr. Richard Plender, QC (Counsel)
Mr. Daniel Bethlehem (Counsel)
Mr. Samuel Wordsworth (Counsel)
|Representatives of the Parties|
|Number of Arbitrators in case||3|
|Date of commencement of proceeding||15 June 2001|
|Date of issue of final award||02 July 2003|
|Length of Proceedings||2-3 years|