MOX Plant and the Espoo Convention: Can Member State Disputes Concerning Mixed Environmental Agreements Be Resolved outside EC Law?

In 2006, the European Court of Justice (ECJ) effectively brought an end to a trio of proceedings begun in 2001 by Ireland against the UK ¹ pursuant to two treaties they were parties to. ² It concluded that since both were EC Member States, disputes concerning treaties to which the EC was also a party should be determined by the ECJ, not arbitral tribunals. ³ The proceedings highlighted the complexities of self-contained regimes in international law, ⁴ emphasized the proliferation and overlapping nature of courts and tribunals, and clarified the relationship between international and EC law. ⁵ While these issues have received the most attention in the literature, ⁶ there has been no detailed analysis of whether Ireland's choice of these treaties was the most appropriate litigation strategy. Suggestions have been made that EC directives on access to environmental information ⁷ and environmental impact assessment (EIA) ⁸ should have been utilized, ⁹ yet there has been no discussion concerning the broader application of the underlying international law to the latter directive. Indeed, while one author has proposed a protocol on marine EIA to the UN Convention on the Law of the Sea (UNCLOS) as a means of preventing disputes of this kind again, ¹⁰ it is somewhat surprising that the Espoo Convention has not been discussed, ¹¹ since it deals with many of the matters that featured in the proceedings, notably procedures for transboundary environmental impact assessment (TEIA) including access to information, consultation and participation of ‘affected parties’ in relation to proposals being considered by the ‘party of origin’. ¹²