ON THE PREVENTION AND ELIMINATION OF POLLUTION FROM LAND-BASED SOURCES

1. 
   When adopting programmes and measures for the purpose of this Annex the Contracting Parties shall require, either individually or jointly, the use of
   

• 
  best available techniques for point sources
  
• 
  best environmental practice for point and diffuse sources
  

2. 
   When setting priorities and in assessing the nature and extent of the programmes and measures and their time scales, the Contracting Parties shall use the criteria given in Appendix 2.
   

3. 
   The Contracting Parties shall take preventive measures to minimise the risk of pollution caused by accidents.
   

4. 
   When adopting programmes and measures in relation to radioactive substances, including waste, the Contracting Parties shall also take account of:
   

1. 
   the recommendations of the other appropriate international organisations and agencies;
   
2. 
   the monitoring procedures recommended by these international organisations and agencies.
   

1. 
   Point source discharges to the maritime area, and releases into water or air which reach and may affect the maritime area, shall be strictly subject to authorisation or regulation by the competent authorities of the Contracting Parties. Such authorisation or regulation shall, in particular, implement relevant decisions of the Commission which bind the relevant Contracting Party.
   

2. 
   The Contracting Parties shall provide for a system of regular monitoring and inspection by their competent authorities to assess compliance with authorisations and regulations of releases into water or air.
   

1. 
   plans for the reduction and phasing out of substances that are toxic, persistent and liable to bioaccumulate arising from land-based sources;
   

2. 
   when appropriate, programmes and measures for the reduction of inputs of nutrients from urban, municipal, industrial, agricultural and other sources.
   

The details of controls on land-based pollution are handled by the OSPAR Commission, which has the authority to take Decisions and to make Recommendations to the state parties. A Decision must be adopted by at least three-fourths of the parties and is binding on the states that voted for it, while

Recommendations have no binding force. OSPAR Convention, Article 13.
The OSPAR Convention specifically adopts the precautionary principle as well as the polluter pays principle in Article 2.
Is the OSPAR Convention a good model for the creation of an international legal regime to deal with land based pollution? OSPAR appears to be an excellent model, but as the following case suggests, some controversies arise which pose difficult issues even between developed states with friendly diplomatic relations. The MOX Plant Dispute between Ireland and the United Kingdom went to arbitration under the OSPAR Convention and was litigated in the ITLOS under UNCLOS. Note that in the ITLOS opinion we reprint below, the court made no mention of the precautionary principle. This was apparently because, although the precautionary principle is specifically included in the OSPAR Convention, it is not mentioned in UNCLOS. One of the ITLOS judges, Rudiger Wolfrum, in an omitted separate opinion in the MOX Plant Case, stated that: "it is still a matter of discussion whether the precautionary principle or the precautionary approach in international environmental law has become part of international customary law." MOX Plant Case, ITLOS Order on Request for Preliminary Measures, 41 ILM 415, 428-29 (2002). Do you agree? Why didn't ITLOS apply the precautionary principle since it is explicitly part of the OSPAR Convention?
THE MOX PlANT DISPUTE (IRELAND v. UNITED KINGDOM)
The UK's Sellafield Mixed Oxide (MOX) nuclear recycling plant on the Irish Sea coast provoked a dispute between Ireland and the UK over radioactive emissions that Ireland contended caused elevated radioactivity in shellfish and finfish endangering human health. The UK rejoined that the small levels of radiation were not dangerous.
In 2001, Ireland commenced two proceedings against the UK: (1) an international arbitration proceeding under the 1992 Convention for the Protection of the Marine Environment of the North East Atlantic (OSPAR); and (2) a proceeding against the UK in the International Tribunal for the Law of the Sea.
In the OSPAR case Ireland charged that the UK was in breach of Article 9 of the OSPAR Convention by refusing to make available two reports concerning the Sell afield MOX plant.
Ireland's case before the ITLOS concerned the U K's failure to carry out a proper assessment of the potential effects of Sellafield on the marine environment as required by UNCLOS Art. 206; a failure to cooperate as required by UNCLOS Arts. 123 and 197; and a failure to take all steps necessary to protect the marine environment as required by UNCLOS Arts. 192-94, 207, 211, 213, and 217.
INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA
6 December 2001
Case No. 10
THE MOX PLANT CASE

(IRELAND V. UNITED KINGDOM)
Request for provisional measures

Present: President CHANDRASEKHARA RAO; Vice-President NELSON; Judges CAMINOS, MAROTTA RANGEL, YANKOV, YAMAMOTO, KOLODKIN, PARK BAMELA ENGO, MENSAH, AKL. ANDERSON, VUKAS, WOLFRUM, TREVES, MARSIT, EIRIKSSON, NDIAYE, JESUS, XU; Judge ad hoc SZEKELY; Registrar GAUTIER.

1. 
   That the United Kingdom has breached its obligations under Articles 192 and 193 and/or Article 194 and/or Article 207 and/or Articles 211 and 213 of UNCLOS in relation to the authorisation of the MOX plant, including by failing to take the necessary measures to prevent, reduce and control pollution of the marine environment of the Irish Sea from (1) intended discharges of radioactive materials and or wastes from the MOX plant, and/or (2) accidental releases of radioactive materials and/or wastes from the MOX plant and/or international movements associated the MOX plant, and/or (3) releases of radioactive materials and/or wastes from the MOX plant and/or international movements associated the MOX plant with the of resulting from terrorist act;
   

2. 
   That the United Kingdom has breached its obligations under Articles 192 and 193 and/or Article 194 and/or Article 207 and/or Articles 211 and 213 of UNCLOS in relation to the authorisation of the MOX plant by failing (1) properly or at all to assess the risk of terrorist attack on the MOX plant and international movements of radioactive material associated with the plant, and/or (2) properly or at all to prepare a comprehensive response strategy or plan to prevent, contain and respond to terrorist attack on the MOX plant and international movements of radioactive waste associated with the plant;
   

3. 
   That the United Kingdom has breached its obligations under Articles 123 and 197 of UNCLOS in relation to the authorisation of the MOX plant, and has failed to cooperate with Ireland in the protection of the marine environment of the Irish Sea inter alia by refusing to share information with Ireland and/or refusing to carry out a proper environmental assessment of the impacts on the marine environment of the MOX plant and associated activities and/or proceeding to authorise the operation of the MOX plant whilst proceedings relating to the settlement of a dispute on access to information were still pending;
   

4. 
   That the United Kingdom has breached its obligations under Article 206 of UNCLOS in relation to the authorisation of the MOX plant, including by
   

1. 
   failing, by its 1993 Environmental Statement, properly and fully to assess the potential effects of the operation of the MOX plant on the marine environment of the Irish Sea; and/or
   
2. 
   failing, since the publication of its 1993 Environmental Statement, to assess the potential effects of the operation of the MOX plant on the marine environment by reference to the factual and legal developments which have arisen since 1993, and in particular since 1998; and/or
   
3. 
   failing to assess the potential effects on the marine environment of the Irish Sea of international movements of radioactive materials to be transported to and from the MOX plant; and /or
   
4. 
   failing to assess the risk of potential effects on the marine environement of the Irish Sea arising from terrorist act or acts on the MOX plant and/or on international movements of radioactive material to and from the MOX plant.
   

5. 
   That the United Kingdom shall refrain from authorizing or failing to prevent (a) the operation of the MOX plant and/or (b) international movements of radioactive materials into and out of the United Kingdom related to the operation of the MOX Plant or an preparatory or other activities associated with the operation of the MOX until such time as (1) there has been carried out a proper assessment of the environmental impact of the operation of the MOX plant as well as related international movements of radioactive materials, and (2) it is demonstrated that the operation of the MOX plant and related international movements of radioactive materials will result in the deliberate discharge of no radioactive materials, including wastes, directly or indirectly into the marine environment of the Irish Sea, and (3) there has been agreed and adopted jointly with Ireland an comprehensive strategy or plan to prevent, contain and respond to terrorist attack on the MOX plant and international movements of radioactive waste associated with the plant;
   

29. Whereas Ireland, in its final submissions at the public sitting held on 20 November 2001, requested the prescription by the Tribunal of the following provisional measures:

1. 
   that the United Kingdom immediately suspend the authorisation of the MOX plant dated 3 October, 2001, alternatively take such other measures as are necessary to prevent with immediate effect the operation of the MOX plant;
   

2. 
   that the United Kingdom immediately ensure that there are no movements into or out of the waters over which it has sovereignty or exercises sovereign rights of any radioactive substances or materials or wastes which are associated with the operation of: or activities preparatory to the operation f, the MOX plant;
   

3. 
   that the United Kingdom ensure that no action of any kind is taken which might aggravate, extend or render more difficult of solution the dispute submitted to the Annex VII tribunal (Ireland hereby agreeing itself to act so as not to aggravate, extend or render more difficult of solution that dispute); and
   

4. 
   that the United Kingdom ensure that no action is taken which might prejudice the rights of Ireland in respect of the carrying out of any decision on the merits that the Annex VII tribunal may render (Ireland likewise will take no action of that kind in relation to the United Kingdom);
   

34. 
    Considering that article 290, paragraph 5, of the Convention provides in the relevant part that:
    

Pending the constitution of an arbitral tribunal to which a dispute is being submitted under this section, any court or tribunal agreed upon by the parties or, failing such agreement w ithin two weeks tram the date of the request for provisional measures, the International Tribunal for the Law of the Sea . . . may prescribe, modify or revoke provisional measures in accordance with this article if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires;

34. 
    Considering that, before prescribing provisional measures under article 290, paragraph 5, of the Convention, the Tribunal must satisfy itself that prima facie the Annex VII arbitral tribunal would have jurisdiction;
    

34. 
    Considering that Ireland maintains that the dispute with the United Kingdom concerns the interpretation and application of certain provisions of the Convention, including, in particular, articles 123, 192 to 194, 197, 206, 207, 211, 212 and 213 thereof;
    

34. 
    Considering that Ireland has invoked as the basis of jurisdiction of the Annex VII arbitral tribunal article 288, paragraph 1, of the Convention which reads as follows: A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part;
    

34. 
    Considering that the United Kingdom maintains that Ireland is precluded from having recourse to the Annex VII arbitral tribunal in view of article 282 of the Convention which reads as follows:
    

If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree;

34. 
    Considering that the United Kingdom maintains that the matters of which Ireland complains are governed by regional agreements providing for alternative and binding means of resolving disputes and have actually been submitted to such alternative tribunals, or are about to be submitted;
    

34. 
    Considering that the United Kingdom referred to the fact that Ireland has under article 32 of the 1992 Convention for the Protection of the Marine Environment of the NorthEast Atlantic (hereinafter "the OSPAR Convention") submitted a dispute between Ireland and the United Kingdom "concerning access to information under article 9 of the OSPAR Convention in relation to the economic 'justiticntion' of the proposed MOX plant" to an arbitral tribunal (hereinafter "the OSPAR arbitral tribunal");
    

34. 
    Considering that the United Kingdom has further stated that certain aspects of the complaints of Ireland are governed by the Treaty establishing the European Community (hereinafter "the EC Treaty") or the Treaty establishing the European Atomic Energy Community (hereinafter "the Euratom Treaty") and the Directives issued thereunder and that States Parties to those Treaties have agreed to invest the Court of Justice of the European Communities with exclusive jurisdiction to resolve disputes between them concerning alleged failures to comply with such Treaties and Directives;
    

34. 
    Considering that the United Kingdom has also stated that Ireland has made public its intention of initiating separate proceedings in respect of the United Kingdom's alleged breach of obligations arising under the EC Treaty and the Euratom Treaty;
    

34. 
    Considering that the United Kingdom maintains that the main elements of the dispute submitted to the Annex VII arbitral tribunal are governed by the compulsory dispute settlement procedures of the OSPAR Convention or the EC Treaty or the Euratom Treaty;
    

34. 
    Considering that, for the above reasons, the United Kingdom maintains that the Annex VII arbitral tribunal would not have jurisdiction and that, consequently, the Tribunal is not competent to prescribe provisional measures under article 290, paragraph 5, of the Convention;
    

34. 
    Considering that Ireland contends that the dispute concerns the interpretation or application of the Convention and does not concern the interpretation or application of either the OSPAR Convention or the EC Treaty or the Euratom Treaty;
    

34. 
    Considering that Ireland further states that neither the OSPAR arbitral tribunal nor the Court of Justice of the European Communities would have jurisdiction that extends to all of the matters in the dispute before the Annex VII arbitral tribunal;
    

34. 
    Considering that Ireland further maintains that the rights and duties under the Convention, the OSPAR Convention, the EC Treaty and the Euratom Treaty are cumulative and, as a State Party to all of them, it may rely on any or all of them as it chooses;
    

34. 
    Considering that, in the view of the Tribunal, article 282 of the Convention is concerned with general, regional or bilateral agreements which provide for the settlement of disputes concerning what the Convention refers to as "the interpretation or application of this Convention";
    

34. 
    Considering that the dispute settlement procedures under the OSPAR Convention, the EC Treaty and the Euratom Treaty deal with disputes concerning the interpretation or application of those agreements, and not with disputes arising under the Convention;
    

34. 
    Considering that, even if the OSPAR Convention, the EC Treaty and the Euratom Treaty contain rights or obligations similar to or identical with the rights or obligations set out in the convention, the rights and obligations under those agreements have a separate existence from those under the Convention;
    

34. 
    Considering also that the application of international law rules on interpretation of treaties to identical or similar provisions of different treaties may not yield the same results, having regard to, inter alia, differences in the respective contexts, objects and purposes, subsequent practice of parties and travaux preparatoires;
    

34. 
    Considering that the Tribunal is of the opinion that, since the dispute before the Annex VII arbitral tribunal concerns the interpretation or application of the Convention and no other agreement, only the dispute settlement procedures under the Convention are relevant to that dispute;
    

34. 
    Considering that, for the reasons given above, the Tribunal considers that, for the purpose of determining whether the Annex VII arbitral tribunal would have prima facie jurisdiction, article 282 of the Convention is not applicable to the dispute submitted to the Annex VH arbitral tribunal;
    

34. 
    Considering that the United Kingdom contends that the requirements of article 283 of the Convention have not been satisfied since, in its view, there has been no exchange of views regarding the settlement of the dispute by negotiation or other peaceful means;
    

34. 
    Considering that article 283 of the Convention reads as follows:
    

1. 
   When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.
   

2. 
   The parties shall also proceed expeditiously to an exchange of views where a procedure for the settlement of such a dispute has been terminated without a settlement or where a settlement has been reached and the circumstances require consultation regarding the manner of implementing the settlement;
   

89. For these reasons,

1. 
   exchange further information with regard to possible consequences for the Irish Sea arising out of the commissioning of the MOX plant;
   

2. 
   monitor risks or the effects of the operation of the MOX plant for the Irish Sea;
   

3. 
   devise, as appropriate, measures to prevent pollution of the marine environment which might result from the operation of the MOX plant.
   

2. Unanimously,

President.

Registrar.

Union filed suit against Ireland in the European Court of Justice (ECJ), and the ECJ ruled that

Ireland, by bringing proceedings against the UK within the framework of the international law of the sea, was in breach of Article 292 of the European Community (EC) Treaty (now Article 344 of the Treaty on the Functioning of the European Union), under which "Member States [of the EU] undertake not to submit a dispute concerning the interpretatio nor application of the EC Treaty to any method of settlement other than those provided for therein." Case C-459/03 Commission of the European Communities v. Ireland, Judgment of the Court (Grand Chamber) of 30 May, 2006, (2006) ECR 1-4635, reprinted 45 ILM 1051 (2006). The ECJ reasoned that UNCLOS is a classic "mixed" international agreement under EU law, in that it concerns matters within the competence of the EU, such as fisheries, as well as matters, such as maritime boundary delimitation, that are within the competence of the EU Member States. Both the EU¹⁸ and the EU Member States have acceded to the UNCLOS, and, although competence over the marine environment is shared under EU law, the EU has exclusive jurisdiction under EC Treaty Article 292 over disputes concerning UNCLOS between Member States.

Is the ECJ's ruling consistent with UNCLOS Article 282? Is the EO's ruling inconsistent with the ruling of the ITLOS?

& PoL'Y 61 (2003).

1. 
   Jurisdiction. Considering the Part XV of UNCLOS and the MOX Plant Dispute, is there a possible dispute settlement forum available so that China will have to submit to compulsory dispute settlement in this case?
   

2. 
   UNCLOS norms. Consider the provisions of UNCLOS Part XII . This is the substantive international law that applies to China's polluting activities in the South China Sea. What provisions of Part XII are applicable? Consider in particular Articles 194 (1) (2)(3) and (5) ; 195; 204, 205, 206, 207, 212, 213, 235, and 237.
   

3. 
   State responsibility. May the Philippines successfully invoke international law principles of state responsibility against China? Do the International Law Commission's (ILC) Draft Articles on the Responsibility of States for Internationally Wrongful Acts (2001), approved by UN General Assembly Resolution 56/83, apply? In chapter 3 of this book we learned that the ILC's Draft Articles state secondary rules designed to apply to all kinds of international obligations regardless of their source, but these Articles must be read in association with primary, substantive Jaw standards. I n this case the primary standards are supplied by UNCLOS Part XII. Are these substantive standards sufficient to charge China committing internationally wrongful acts?
   

4. 
   Customary international law. Will the Philippines successfully invoke customary international law principles against China that create liability for transboundary pollution? Consider the material covered in chapters 2 and 3 of this book, in particular:
   

• 
  The Trail Smelter Case
  

• 
  Principle 21 of the Stockholm Declaration repeated by Principle 2 of the Rio Declaration. Principle 21/2 was declared to be a rule of customary international law by the International Court of Justice in the Nuclear Weapons Advisory Opinion [1996] ICJ Rep. 226 (29), and this conclusion was reaffirmed by the Court in the Gabcikovo-Nagymaros Project Case, [1997] ICJ Rep. 7 (53). Principle 21/2 extends the ruling of the Trail Smelter Case to include areas beyond national jurisdiction.
  

• 
  Is the now discredited ILC Draft Articles on International Liability for Acts Not Prohibited by International Law ( 1996) helpful?
  

• 
  Consider also Sections 601 and 602 of the American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States (1986).
  

• 
  Consider the ILC Draft Articles on Prevention of Transboundary Harm from Hazardous Activities (2001). These Draft Articles require an equitable balancing of interests (see Articles 9 and 10). Is this helpful? Is balancing of interests a good idea when it comes to preventing harm from discharges of toxic substances such as mercury?
  

• 
  Consider also the ILC Draft Principles on International Liability in Cases of Loss from Transboundary Harm Arising out of Hazardous Activities (2006).
  

5. 
   Remedies. Suppose China were adjudged to have violated its international law obligations; what remedies should be imposed? What remedies are appropriate under international law?
   

6. 
   A global treaty on land-based marine pollution. About 80 percent of marine pollution ultimately has its source on land. Is a global treaty that specifica lly addresses land-based marine pollution the answer? Such a treaty has been proposed: see David Hassan, Protecting the Marine Environment from Land-Based Sources of Pollution: Towards Effective International Cooperation (Burlington, VT: Ashgate Press, 2006).
   

7. 
   The United Nations Environmental Programme (UNEP) Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities (GPA). UNEP has developed a strategy for combating land-based marine pollution on a global scale. See UNEP, The Other 70%: UNEP Marine and Coastal Strategy (Nairobi: UNEP, 2011). This UNEP initiative began in 1995 with the UNEP Washington Declaration on Protection of the Marine Environment from Land Based Activities, which is reprinted in the Documentary Supplement. The Washington Declaration states, as a "common goal" ... "effective action to deal with all land-based impacts on the marine environment." (para. 1). This document also calls for a "Global Programme of Action, a global, legally binding instrument for the reduction and/or elimination of emissions, discharges and, where appropriate, the elimination of the manufacture and use of the persistent organic pollutants identified in decision 18/32 of the Governing Council of the United Nations Environment Programme." (para. 17). To this end, UNEP adopted the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities (1995). The GPA recommends that states identify and assess particular problems of land-based marine pollution; establish priorities for action; set management objectives; identify, evaluate and select strategies and measures to achieve these objectives; and develop criteria for evaluating the effectiveness of strategies and measures. For information on the GPA, see http://www.gpa.un ep.org. The GPA relies upon national governments to take action to achieve and enforce standards to reduce land-based marine pollution. UNEP holds periodic meetings to review progress in implementing the GPA. Meetings were held in Montreal in 2001; in Beijing in 2006; and in Manila in 2012. See UNEP, Review of Implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities at the International, Regional, and National Levels, UNEP/GPA/IGR.3/2 (9 November 2011). This review states that "Many Governments have integrated the Programme across sectors and ministries and in national budgets." But the review adds that "much remains to be done." (para .l). UNEP's strategy is to implement the GPA through national programmes of action adopted by states. To this end, the UNEP offers technical assistance, capacity building, and training of personnel.
   

8. 
   Regional seas programmes. A key element of the GPA is to encourage the development of regional seas programmes to combat land-based marine pollution. There is no regional seas programme for the South China Sea. Would the establishment of such a program be beneficial? The two most advanced regional seas programmes are OSPAR, which covers the north-east Atlantic Ocean, and the Mediterranean programme established by the Convention for theProtection of the Marine Environment and the Coastal Region of the Mediterranean. OSPAR includes, as we have seen, Annex I-Prevention and elimination of pollution from land-based sources. The OSPAR Commission has authority to issue Decisions and Recommendations to implement this Annex. The Mediterranean regional seas programme was originally instituted by the Barcelona Convention of 1976 and was amended as the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (Barcelona, 1995, entry into force 2004). The 1995 Barcelona Convention, which is reprinted in the Documentary Supplement, includes a Protocol for the protection of the Mediterranean Sea against pollution from land-based sources; a Protocol concerning specially protected areas and biological diversity in the Mediterranean; and a Protocol on Integrated Coastal Zone Management in the Mediterranean. The Barcelona Convention is implemented by both the contracting parties and the European Union, which is also a party, as well as by national governments.
   

9. 
   Non-point marine pollution. The problem of non-point pollution is not well-addressed even by the domestic laws of important states. In the United States the Clean Water Act sections 208 and 319 (33 USC sees. 1288 and 1329) address non-point pollution. Section 2008 directs the states to identify areas with substantial water quality control problems and to develop plans to correct the situation. In 1987, Congress enacted section 319 of the Clean Water Act, which requires states to compile new lists of waters impaired by non-point pollution and to develop new control programs on a watershed basis. Thus, the US Environmental Protection Agency leaves non-point pollution control to each individual state, and the section 208 and 319 programs have done little to solve the problem. In the late 1990s, the EPA started a controversial new initiative to combat non-point pollution: using its authority under Clean Water Act section 303 (33 USC sec. 1313), the EPA required states to establish "total maximum daily loads" (TMDL) for waters within their boundaries for which the effluent limitations established under the Clean Water Act section 301 (33 USC sec. 1311) are insufficient to meet the water quality standards applicable to such waters. The EPA has also established a TMDL-like program for toxic pollutants such as mercury under Clean Water Act, 33 USC sec. 1314(1). But these programs have not been fully implemented by most states.¹⁹
   

sulphides contain copper, iron, zinc, silver, gold and other metals in varying amounts. These deposits occur at areas about the size of a football field wherever hot springs discharge from the sea floor.

1. 
   Policy- making in the Seabed Authority would be carried out by a one-nation, one-vote Assembly.
   

2. 
   Decision making in the Council may be carried out without input from the United States or developed state-parties.
   

3. 
   There is insufficient oversight of decisions involving major financial and budgetary implications.
   

4. 
   Sea bed mining will be carried out without observing market principles because Part XI permits production controls and subsidies as well as potential discriminatory treatment of mining entities.
   

5. 
   
   
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