Lessons from the Protracted Mox Plant Dispute: A Proposed Protocal on Marine Environmental Impact Assessment to the United Nations Convention on the Law of the Sea

Michigan Journal of International Law, Dec 2004

Although the ITLOS order attempted to facilitate dialogue between the parties, the Tribunal was incapable of addressing the root cause of the MOX plant controversy, namely the lack of an adequate mechanism for transboundary environmental impact assessment at the onset of the conflict under UNCLOS. Similarly, the OSPAR and Annex VII tribunals have failed to bring about the efficient resolution of this procedural environmental dispute. This Article addresses the prevention of similar incidents by proposing the creation of a marine environmental impact assessment protocol to UNCLOS to make assessment procedures operational from the initial stage of controversial projects.

A PDF file should load here. If you do not see its contents the file may be temporarily unavailable at the journal website or you do not have a PDF plug-in installed and enabled in your browser.

Alternatively, you can download the file locally and open with any standalone PDF reader:

https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1256&context=mjil

Lessons from the Protracted Mox Plant Dispute: A Proposed Protocal on Marine Environmental Impact Assessment to the United Nations Convention on the Law of the Sea

INT'L L. Michigan Journal of International Law Maki Tanaka 0 1 2 Maki Tanaka, Lessons from the Protracted Mox Plant Dispute: A Proposed Protocal on Marine 0 American University Washington College of Law , USA 1 This Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information , please contact , USA 2 Environmental Impact Assessment to the United Nations Convention on the Law of the Sea , 25 M Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the Environmental Law Commons, International Law Commons, and the Law of the Sea Recommended Citation - Commons Maki Tanaka* J.D., summa cum laude, American University Washington College of Law; M.A., Political Science, University of Mississippi; B.A., Russian Studies, Tokyo University of Foreign Studies. I would like to thank Marcos A. Orellana, Adjunct Professor at the American University Washington College of Law and Senior Attorney at the Center for International Environmental Law, Washington, D.C. for his helpful suggestions in the preparation of this article. I also extend my gratitude to my friend, Mary Halley Burford, for her assistance in editing and proofreading an earlier draft. Special gratitude is owed to Dr. Komei Hosokawa of the Kyoto Seika University Department of Environmental & Social Research, who helped me understand controversies surrounding the use of nuclear energy through his weekly workshops held at the Tokyo University of Foreign Studies. All remaining errors are mine and the opinions expressed herein are based on my own research. I. INTRODUCTION On September 17, 2002, the Pacific Pintailsailed 18,000 miles back from Japan to England with multiple oxide (MOX) fuel containing 225 kilograms (562 pounds) of plutonium.' British Nuclear Fuels plc (BNFL) 1. Protest Flotilla Ready as Shipload of Nuclear Fuel Noses Closer to Britain, AGENCE FRANCE-PRESSE, Sept. 16, 2002, avai lableat 2002 WL 23601926 [hereinafter Protest Flotilla Ready]. Greenpeace believes that this amount of plutonium is sufficient to produce manufactured the MOX fuel at its MOX Demonstration Facility and delivered it to a Japanese utility company in 1999.2 However, the Japanese customer rejected the nuclear fuel because BNFL falsified quality records.3 This incident further strained relations between Ireland and the United Kingdom not only because the Pacific Pintail traversed the Irish Sea with a considerable amount of plutonium, but also because BNFL will eventually recycle the unwanted nuclear fuel at the Sellafield MOX Plant, newly built on the Sellafield nuclear industrial site.' The Sellafield site is located in northwest England on the coast of the Irish Sea. At Sellafield, BNFL reclaims fissile plutonium and uranium from spent nuclear fuel consigned by foreign utility companies, and manufactures MOX fuel assemblies for the foreign customers from 50 nuclear bombs. Greenpeace, Countdown to a Deadly Shipment 2, at http:// archive.greenpeace.org/nuclear/bnfl/docs/general-pu-briefing.pdf (last visited Oct. 19, 2003). But see Kozo Mizoguchi, Japan Defends Nuclear Fuel Decision, AP ONLINE, July 5, 2002, avai lable at 2002 WL 23166113 (reporting that Japanese officials and an independent expert argue that it is theoretically possible but practically difficult to make nuclear weapons from reactor-grade plutonium). 2. Edward Power, BNFL HeadAdmits 'Stupidity' of MOX Episode, IRISH TIMES, Sept. 18, 2002, at 6, avai lable at 2002 WL 25947530; Robert MacPherson, NuclearFuel Sails Back to Britainfrom Japanwith Protestersin Tow, AGENCE FRANCE-PRESSE, Sept. 17, 2002, avai lable at 2002 WL 23602411; SELLAFIELD: REPROCESSING PLANT IN GREAT BRITAIN 20 (Bellona Foundation, Working Paper No. 5, 2001), at http://www.bellona.no/pdfs/ wp5_2001_SellafieldEnglish.pdf (last visited Feb. 2, 2004) . 3. Mizoguchi, supra note 1; Power, supra note 2, at 6; see also MacPherson, supra note 2 (stating that BNFL agreed to take the fuel back as well as pay compensation and return transport costs exceeding £100 million ($155 million)). 4. See Mizoguchi, supra note 1 (quoting the Irish Environment Minister Martin Cullen that the MOX shipments through the Irish Sea are an unacceptable risk to the environment of Ireland and the health and economic well-being of its population). Although Ireland recognizes that in principle British vessels carrying nuclear fuel may navigate across the Irish Sea exercising the right of innocent passage, it does not want the United Kingdom to turn the Irish Sea into a "nuclear fuel highway'" Lorna Siggins, Greenpeace Unhappy with Stance on NShip, IRISH TIMES, Aug. 30, 2002, at 4, avai lableat 2002 WL 25944754 (quoting Mr. Ahem, the Irish Minister for Commu (...truncated)


This is a preview of a remote PDF: https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1256&context=mjil

Maki Tanaka. Lessons from the Protracted Mox Plant Dispute: A Proposed Protocal on Marine Environmental Impact Assessment to the United Nations Convention on the Law of the Sea, Michigan Journal of International Law, 2004, Volume 25, Issue 2,