The UN’s permanent court of arbitration in The Hague handed down a decision dictating that Britain must be more open in its consultations with Ireland over the controversial Sellafield nuclear reprocessing plant, court documents indicate. The court also strongly recommended that both parties not undertake any actions that would exacerbate the current dispute.

Irish Minister of the Environment Martin Cullen welcomed the ruling and said the UK now had to consult Ireland before they could authorise further reprocessing at Sellafield.

“This order recognises that the UK has failed to give us the cooperation we need to protect ourselves from the potential threats from Sellafield,” Cullen said in a press statement released after the decision last week.

It remains unclear, however, who will have final jurisdiction in the suit, which was brought by Ireland over Sellafield’s discharges of radioactive waste into the Irish Sea and the plant’s sea transportation of mixed plutonium and uranium, or MOX fuel.

The Hague tribunal concluded last week that “there remain substantial doubts whether the jurisdiction of the tribunal can be firmly established in respect of all or any of the claims in the dispute.” According to court documents, doubts remain about whether elements of the dispute should fall under the jurisdiction of the European Community, or EC.

The UK claims the case is a matter for EC law, while Ireland wants to continue hearings under the UN tribunal. Because of these uncertainties, the tribunal suspended the proceedings until “not later than December 1^st,” meaning Ireland will have to wait yet another six months before the dispute is resolved.

Irish Request to Halt MOX Production Shot Down
The Hague arbitration tribunal also rejected a number of provisional agreements introduced by the Irish side. One of them would have halted MOX production at the Sellafield facility and would have held airborne emissions to at least 2002 levels, which were lower than those predicted for 2003. Ireland had also requested—and was denied—detailed reports on any incidents or accidents at the Sellafield MOX fabrication plant.

Another provisional measure, requested by Ireland but rejected by the court, asked that there should not be any more liquid radioactive discharges into the sea from the MOX fabrication plant, while Dublin and London are waiting for the final decision in the case.

One provisional agreement the tribunal did uphold was that both countries are now recommended by the tribunal to abstain from taking any action that could aggravate the situation before the December 1^st hearings. This essentially means that Sellafield is strongly discouraged from producing MOX or dumping liquid waste into the Irish Sea over the next six months.

The Centre of the Dispute
The discord between Ireland and the UK stems from Britain’s new MOX production facility at Sellafield, which has been in operation since December 2001. Ireland accuses the British plant for breaking the UN Convention on the Law of the Sea, or UNCLOS, arguing that the plant’s production and transportation represent unacceptable environmental risks for Ireland. Ireland criticises both the radioactive discharges from the plant and the transportation of MOX, which, because of its plutonium content, is a prime target for terrorists seeking to build a nuclear device.

Despite this, the UK has big plans for its MOX fuel industry this year and therefore will likely fight the tribunal on December 1^st on grounds of jurisdiction. Later in the year, a container ship loaded with MOX fuel is scheduled to leave Sellafield for the European continent, where several countries, including France, burn MOX fuel. The ship will pass by the Irish coast en route. Eight such trips are routinely made each year.

What the Court’s Decision Means
What this means for the time being is that the United Kingdom must agree on a mechanism to facilitate cooperation with Ireland on issues of nuclear safety. To assure that The Hague arbitration court’s new ruling is obeyed, the two countries are further required to provide reports and “information on compliance with the provisional measure affirmed.”

The first of these progress reports must be submitted to the tribunal by September 12^th, according to court documents. As Cullen noted, this “should prevent the kind of prevarication we have seen in the past.”

The tribunal will review information provided and will decide if further measures are needed in the proceedings. “We now have a UN referee overseeing the implementation of Britain’s obligations. The tribunal has set a tight deadline for cooperation, which is a positive development,” Cullen said.

Britain’s reaction appeared lukewarm. “Ireland’s requests for provisional measures went far beyond protection of any rights Ireland may have in respect of this case, and the tribunal has rightly rejected them,” said British Energy Minister Stephen Timms, according to a statement the ministry released after the court’s decision was handed down. He added, however, that London wants to work constructively with Ireland on the Sellafield issue.

But Cullen was not impressed by Timms’ seeming overtures toward cooperation. “This is far from being the final part of this case,” he said in a statement.

“When we return to the full hearing of this matter in a few months’ time, Ireland will continue to make the case that the operations at Sellafield constitute an unacceptable risk. We are confident that our case in the main action will be upheld,” he said.