The European Court of Justice says Ireland cannot seek rulings on Sellafield from other international tribunals, but will it do the job itself? asks Gernot Biehler
The European Court of Justice in Luxembourg (ECJ) has prohibited Ireland from suing the United Kingdom before the Tribunal of the Law of the Sea in Hamburg on the ground that it is polluting the Irish Sea with nuclear waste. The decision issued yesterday bars Ireland from seeking redress before the court which the State thought was the most appropriate to put an end to the nuclear pollution originating from the British Nuclear Fuel Plant in Sellafield considered by many to pose a threat. The Luxembourg judges held that Ireland should not bring any issue before an international court or tribunal which the ECJ itself could deal with.
In his first statement on the matter the Minister for the Environment, Dick Roche, noted that the judgment places the ECJ in a powerful position as it expects to apply not only EC law but also international law which protects Ireland from dangerous pollution in the Irish Sea. He added that enforcement of a wide range of international agreements, particularly in the environmental field, are now within the competence of the ECJ.
In essence the Minister said that if the Luxembourg judges will not allow us to sue Britain before the competent Hamburg court applying the relevant international law, then the ECJ must do the job itself and hold the British government responsible for its actions.
In Government speak this reads: "This presents Ireland with a novel range of opportunities for holding Britain to its obligations towards the environment and its nearest neighbours. These issues will be examined in detail by the department and its legal advisers before further decisions are taken in respect of the MOX case."
However, looking at this statement, it also suggests that the Minister has not yet decided what action to take. Indeed, this is the question to be asked: is Ireland now left in the lurch? Can it just disregard the Luxembourg decision and go ahead with fighting dangerous British nuclear waste with whatever means it considers appropriate or will the ECJ itself do the job?
On the latter point, will the European court now, after prohibiting Ireland from seeking redress anywhere else, do the job itself?
As the Bible tells us there exists faith, hope and love. Indeed, it will require quite a lot of faith to hope that the ECJ would now start applying international law which is not part of European law, because the court is not competent to do so.
The Republic may only ask it to declare that Britain has not complied with its obligations under European law. This State on the other hand is relying primarily on the rules of international law according to the United Nations Convention on the Law of the Sea.
Ireland asked the Law of the Sea Tribunal to declare that Britain had breached its obligations under various articles of the United Nations Convention on the Law of the Sea 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 intended discharges of radioactive materials and international movements associated with the MOX plant or resulting from terrorist acts. These are the most significant contentions.
Although European law provides some environmental protection, it does not provide it to the same degree as the United Nations Convention on the Law of the Sea. The European Union would not be competent to provide Ireland with the protection of this latter international legal standard which applies to the Sellafield pollution.
The other option, which is simply to disregard the ECJ ruling and proceed to seek judicial redress with the competent United Nations judicial body, is not as bizarre as it sounds. To disregard a court ruling in a national legal order is not an option. However, in the field of international law it is much more common to encounter several courts with competing jurisdictions.
And this is exactly what the decision of the ECJ is about. It does not pronounce on the merits of whether Britain has indeed illegally polluted and dumped nuclear waste in contravention of international and European law, but simply states that it does not wish Ireland to apply to the Law of the Sea Tribunal which is competent in this case.
Although a certain superiority of EC jurisdiction is generally accepted inside the European Union, difficulties will arise if this results in barring the proper applicable law on the merits.
Lately, the European court has been in focus for not allowing the proper application of human rights standards by applying its superior jurisdiction. This contradicts the legal premise that where there is a wrong there is a remedy.
If the ECJ cannot deliver what it implicitly promises by concentrating all competences to itself, Ireland would be free to seek the legal remedy where it finds it.
The rules on ECJ competency may not be misused to deprive Ireland of the benefits of the applicable international law protecting it from the perils of illegal nuclear wasting.
The current ECJ judgment is also weak on other grounds. The EC is itself a member of the United Nations Convention on the Law of the Sea and it agreed that member states would apply to the tribunal as provided for in this convention. Therefore, to now rely exclusively on EC law to prevent Ireland doing this disregards the rules of international law governing conflicting assertion of jurisdictions. The Vienna Convention on the Law of Treaties provides that the more specific and later treaty pre-empts the more general and earlier treaty.
In relation to nuclear waste in the marine environment, the UN Convention is a more specific and later treaty than the EC Treaty and must be applied.
To sum up, the decision reminds Ireland that it is not easy to stand up for its rights against powerful neighbours. However, this judicial setback in the Sellafield struggle was effected by a procedural trick, which resulted in the European Commission fighting for its exclusive competencies.
The case is not lost on the merits yet. The Government should now act to obtain a judicial decision on nuclear pollution of the Irish Sea, as opposed to one on conflicting judicial competencies. It can and should seek to do so as a matter of urgency.
Gernot Biehler is a lecturer in international law at Trinity College Dublin