## Facts

- Ireland sought disclosure of information redacted from United Kingdom reports generated during approval of the MOX fuel plant at Sellafield, including portions of the PA and ADL reports.
- Ireland asserted the redacted material concerned the marine environment (including risks from activities affecting the Irish Sea) and requested access under Article 9 of the 1992 OSPAR Convention.
- The United Kingdom refused to disclose certain items, relying primarily on commercial confidentiality and the existence of European Union access-to-environmental-information procedures.
- After diplomatic efforts failed, Ireland initiated arbitration under OSPAR’s dispute-settlement clause in 2001 before an ad hoc tribunal administered by the Permanent Court of Arbitration.
- The tribunal issued procedural rulings, including on use of unredacted materials in the arbitration, and delivered a final award on July 2, 2003.

## Issues

1. Whether the tribunal had jurisdiction and whether Ireland’s claims were admissible despite overlapping EU law and remedies concerning environmental information access.
2. Whether Article 9(1) of OSPAR imposes a results-based obligation to ensure disclosure, rather than merely requiring a domestic access regime.
3. Whether the requested redacted material fell within Article 9(2) as “information on the state of the maritime area,” and, if so, whether the United Kingdom could lawfully withhold it based on confidentiality exceptions.

## Decision

- The tribunal rejected the United Kingdom’s jurisdiction and admissibility objections and proceeded to the merits under OSPAR.
- The tribunal held that Article 9(1) imposes an obligation of result to ensure disclosure of covered information, not merely to maintain procedures for access.
- The tribunal interpreted “information on the state of the maritime area” in Article 9(2) to include information about existing or proposed activities likely to affect the marine environment.
- The tribunal found the United Kingdom in breach of Article 9(2) for refusing disclosure of certain information where commercial confidentiality was not justified; other parts of Ireland’s claim were rejected where confidentiality exceptions properly applied.
- Costs were apportioned to reflect each party’s partial success.

## Legal Principles

- Parallel regional regimes for environmental information access do not, by themselves, bar treaty-based arbitration; a state may remain internationally responsible for failures to meet treaty obligations even if implementation is assigned to domestic or regional systems.
- Article 9(1) OSPAR requires a contracting party to achieve the outcome of access to covered information; a formal domestic mechanism is insufficient if disclosure is not ultimately ensured.
- “Information on the state of the maritime area” under Article 9(2) is to be read broadly to include information about activities and risks that may affect that state.
- Exceptions for commercial confidentiality may justify withholding only where the state substantiates the claim; exceptions are construed narrowly in light of the convention’s object and purpose.
- Treaty interpretation follows the Vienna Convention on the Law of Treaties (Articles 31–32), and interpretive context may include relevant contemporary legal developments to avoid anachronistic readings.

## Conclusion

The tribunal confirmed that OSPAR Article 9 creates enforceable inter-state duties regarding access to environmental information, held that covered information includes material about activities affecting the marine environment, and ruled that confidentiality exceptions must be proven and narrowly applied, resulting in a partial finding of breach against the United Kingdom under Article 9(2).


Dispute Concerning Access to Information Under Article 9 of the OSPAR Convention (Ir. v. U.K.), Final Award, 23 R.I.A.A. 59 (Perm. Ct. Arb. 2003)