1 The production of mixed oxide, a mixture of plutonium oxide and uranium oxide for reuse as fuel in nuclear reactors, has come to be developed as a means of utilizing spent nuclear fuels.

2 Dec. 10,1982, 1833 UNTS 397 (1983) [hereinafter LOS Convention]. In late 2001, as part of the litigation under the LOS Convention, Ireland sought a provisional measures order from the International Tribunal for the Law of the Sea (ITLOS). Among other things, Ireland sought to suspend the operation of the MOX plant until a LOS Convention Annex VII arbitral tribunal (Annex VII tribunal) could be constituted. While declining to order the specific provisional measures requested by Ireland, ITLOS did order the parties to “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.” MOX Plant (Ir. v. UK), Provisional Measures, ITLOS Case No. 10, para. 89 (Dec. 3, 2001), at <http://www.itlos.org>. See McDorman, T.L. , International Tribunal for the Law of the Sea (ITLOS), 12 Y.B. Int’l Envtl. L. 589,592–97 (2001)Google Scholar; Kwiatkowska, Barbara, The Ireland v. United Kingdom (Mox Plant) Case: Applying the Doctrine of Treaty Parallelism, 18 Int’l J, Marine. & L, Coastal. 1 (2003)Google Scholar. In June 2003, the chair of the Annex VII tribunal suspended the proceedings until December 1 because it was uncertain whether the tribunal’s Jurisdiction “can be firmly established in respect of all or any of the claims in the dispute.” The central concern was that the European Community (EC) may have exclusive competence to address some or all of the matters before the Annex VII tribunal, and the expectation was that the suspension would provide the EC with an opportunity to clarify the jurisdictional question. MOX Plant (Ir. v. UK), Order No. 3, paras. 25-30 (LOS Convention Annex VII Arb. Trib. June 24, 2003). Subsequently, in November 2003, the tribunal suspended hearings “until the European Court of Justice has given judgment or the Tribunal otherwise determines.” Id., Order No. 4 (Nov. 14, 2003). The documents in this Annex VII arbitration are available on the Web site of the Permanent Court of Arbitration, <http://www.pca-cpa.org>, which is serving as the registry for the dispute.

3 September 21,1992, 3Y.B.Int’l Envtl. L. 703 (1992), 31 ILM 1312 (1993). The OSPAR Convention, to which sixteen European states are parties, seeks to regulate all sources of pollution into the maritime area of the Northeast Atlantic. The Convention replaces the Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft, Feb. 15,1972,932 UNTS 3, and the 1974 Convention for the Prevention of Marine Pollution from Land-Based Sources, Feb. 21, 1974, 13 ILM 352 Google ScholarPubMed (1974)). Information about the OSPAR Convention is available online at <http://www.ospar.org>. See Hey, Ellen, Ijlstra, Ton, & Nollkaemper, Andre, The 1992 Paris Convention for the Protection of the Marine Environment of the North-East Atlantic: A Critical Analysis, 8 Int’l Marine, J. & Coastal, L. 1 (1993)Google Scholar; Pallemaerts, Marc, Toxics and Transnational Law: International and European Regulation of Toxic Substances as Legal Symbolism 106–36 (2003)Google Scholar.

4 See MOX Plant, Order No. 4, pmbl.

5 Access to Information Under Article 9 of the OSPAR Convention (Ir. v. UK), Final Award (OSPAR Arb. Trib. July 2, 2003), at <http://www.pca-cpa.org> [hereinafter Arbitral award].

6 Article 32(1) provides:

7 Article 9 provides:

• 1.

  1. The Contracting Parties shall ensure that their competent authorities are required to make available the information described in paragraph 2 of this Article to any natural or legal person, in response to any reasonable request, without that person’s having to prove an interest, without unreasonable charges, as soon as possible and at the latest within two months.

• 2.

  2. The information referred to in paragraph 1 of this Article is any available information in written, visual, aural or data-base form on the state of the maritime area, on activities or measures adversely affecting or likely to affect it and on activities or measures introduced in accordance with the Convention.

• 3.

  3. The provisions of this Article shall not affect the right of Contracting Parties, in accordance with their national legal systems and applicable international regulations, to provide for a request for such information to be refused where it affects:

• a.

  a. the confidentiality of the proceedings of public authorities, international relations and national defence;

• b.

  b. public security;

• c.

  c. matters which are, or have been, sub judice, or under enquiry (including disciplinary enquiries), or which are the subject of preliminary investigation proceedings;

• d.

  d. commercial and industrial confidentiality, including intellectual property;

• e.

  e. the confidentiality of personal data and/or files;

• f.

  f. material supplied by a third party without that party being under a legal obligation to do so;

• g.

  g. material, the disclosure of which would make it more likely that the environment to which such material related would be damaged.

• 4.

  4. The reasons for a refusal to provide the information requested must be given.

8 Arbitral award, supra note 5, paras. 78, 185.

9 Id., para. 15.

10 Memorial of Ireland at para. 8, Arbitral award, supra note 5.

11 Id.

12 Arbitral award, supra note 5, para. 17 (quoting European Commission); see Commission Opinion of 26 November 2002 Concerning the Plan for the Disposal of Radioactive Waste from the Operation of the MOX Demonstration Facility at Sellafield, in Accordance with Article 37 of the Euratom Treaty, 2002 OJ. (C 292) 7.

13 Counter-memorial of the United Kingdom at para. 2.7, Arbitral award, supra note 5.

14 Memorial of Ireland, supra note 10, para. 58.

15 Mar. 25,1957, 298 UNTS 167.

16 See EURATOM Directive 96/29, Art. 6(1), 1996 OJ. (L 159) 1, discussed in Arbitral award, supra note 5, para. 18.

17 Arbitral award, supra note 5, paras. 25-26.

18 Id., para. 35.

19 Id., para. 41.

20 Memorial of Ireland, supra note 10, para. 2.

21 Arbitral award, supra note 5, para. 42. See supra note 7 for text of Article 9.

22 Arbitral award, supra note 5, paras. 43-44, 78.

23 Id., paras. 80-86.

24 Id., paras. 98-104.

25 Id., para. 100.

26 Id., para. 101.

27 Id., Diss. Op. Griffith, Arb., para. 7.

28 Public Participation in Decision-Making and Access to Justice in Environmental Matters June 25, 1998, Art 3 (9), 38 ILM 517 (1999)Google Scholar, at <http://www.unece.org/env/pp> [hereinafter Aarhus Convention]. Respecting the information provisions of this Convention, see Sands, Philippe, Principles of International Environmental Law 858–59 (2d ed. 2003)Google Scholar.

29 Arbitral award, supra note 5, Diss. Op. Griffith, Arb., para. 19.

30 Id., paras. 20-29. Judge Griffith concluded:

Id., paras. 32-33.

31 Arbitral award, supra note 5, para. 107.

32 Arbitral award, supra note 5, paras. 107-09. It is interesting that the majority on this second main holding was composed of the Irish and UK appointees, Judge Griffith and the UK appointee Lord Mustil, respectively, with the chair, W. Michael Reisman of Yale Law School, in disagreement, see id., Decl. Reisman, Arb.

33 Arbitral award, supra note 5, para. 132; see id., para. 123.

34 Id., para. 130.

35 Id., para. 129.

36 Id.

37 Id., para. 134; see id., para. 133.

38 Id., para. 134.

39 Id., para. 135.

40 Id., para. 139.

41 Id., para. 140; seeCouncil Directive 90/313/EEC of 7june 1990 on the Freedom of Access to Information on the Environment, 1990 O.J. (L 158) 56.

42 Arbitral award, supra note 5, para. 140.

43 Id., paras. 141-42.

44 Id., para. 143.

45 Id., paras. 144-46.

46 Judge Griffith explained at length why, in his view, the information sought by Ireland was covered by Article 9(2). Id., Diss. Op. Griffith, Arb., paras. 34-135.

47 Arbitral award, supra note 5, paras. 149-51.

48 Id., paras. 152-54.

49 See supra text accompanying note 20.

50 Arbitral award, supra note 5, para. 161.

51 Id., para. 170.

52 Id., para. 163 (last alteration in original).

53 Id., para. 164.

54 Id.

55 Id., para. 168 (alteration in original).

56 Id., para. 169. In his dissent, Judge Griffith looked at both the second and third categories. See id., Diss. Op. Griffith, Arb.

57 Arbitral award, supra note 5, para. 170.

58 Id., paras. 171-72. The tribunal defined “measures” as “regulatory initiatives,” and “activities” as “actions . . . that would be the object of the ‘measures.’“ Id., para. 171.

59 Id., para. 173.

60 Id.

61 Id., para. 174.

62 Id., para. 175.

63 Id., para. 179.

64 Id., para. 150. See Article 2(3) of the Aarhus Convention, supra note 28, which provides:

“Environmental information” means any information in written, visual, aural, electronic or any other material form on:

• (a)

  (a) The state of elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including genetically modified organisms, and die interaction among these elements;

• (b)

  (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;

• (c)

  (c) The state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected by the state of the elements of the environment or, through these elements, by die factors, activities or measures referred to in subparagraph (b) above[.]

65 Arbitral award, supra note 5, para. 177.

66 Id., paras. 178-81.

67 Id., para. 181.

68 Id., para. 178.

69 Id., paras. 178, 181.

70 SANDS, supra note 28, at 857-58.

71 The operational and litigational models as competing conceptions of international law are presented in Douglas, M. Johnston, Consent and Commitment in the World Community: the Classification and Analysis of International Instruments 81–90 (1997)Google Scholar. I have borrowed and adapted these two models in the following paragraphs.

72 See generally Birnie, P. W. & Boyle, A. E. , International Law and the Environment 12, 24–27 (2ded. 2002)Google Scholar.

73 UN Doc. A/CONF.151/5/Rev.l, June 14, 1992, 31 ILM 874 (1992).

74 The Johannesburg Declaration is included in the Report of the World Summit on Sustainable Development, UN Doc. A/Conf.199/20, at 1 (2002). The Report also includes, as an annex, the “Plan of Implementation of die World Summit on Sustainable Development.”

75 In Report of the United Nations Conference on the Human Environment at 3, UN Doc. A/conf.48/ 14/rev. 1 (1972), 11 ILM 1416 (1972)Google Scholar.

76 June 5, 1992, 31 ILM 818 (1992).

77 May 9, 1992, S. Treaty Doc. No. 102-38 (1992), 1771 UNTS 108, 31 ILM 849 (1992).