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The Gulf of Mexico Oil Spill and International Law

The environmental catastrophe following the sinking of the Deepwater Horizon oil rig in the Gulf of Mexico continues to unfold.  Yet, our growing consumption of oil and gas means that the incident is unlikely to stop the quest for drilling oil at such depths, despite the risks. Questions can be asked about whether or not international law can assist in helping to prevent further accidents of a similar nature arising again.

International law already imposes obligations on states to regulate offshore drilling activity.   Article 192 of the Law of the Sea Convention (LOSC) places an obligation on the United States to “protect and preserve the marine environment.”  This obligations applies regardless of whether or not environmental pollution affects other states.  Further to this general obligation, states have a duty to “adopt laws and regulations to prevent, reduce and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction” which shall be “no less effective than international rules, standards and recommended practices and procedures.”  (LOSC, Article 208(1) and (3))  There are no binding international rules or standards for oil platforms although the International Maritime Organization recently updated its Code for the Construction and Equipment of Mobile Offshore Drilling Units in November 2009.  This Code could arguably qualify as recommended practices and procedures which coastal states must incorporate into their national legislation under Article 208 of the LOSC.

In a post on the International Economic Law and Policy Blog, Marc Benitah has suggested that an international convention on safety standards for oil platforms could help to prevent further accidents as it would provide minimum international standards for safety and environmental protection on oil rigs.  Given the potential for serious transboundary harm if a similar spill did occur in the future, coastal states may want to takes measures to ensure that minimum standards are applied wherever a drilling operation takes place.  In addition, Benitah argues that a treaty would help governments resist pressure from the oil industry and related lobby groups to minimise regulatory supervision.  Such a convention would presumably go beyond the current Code as it would include safety standards for drilling operations and procedures which are currently not covered by the Code but left to regulation by the coastal state.  A Convention would also have the advantage of removing any ambiguity over the status of the rules therein.  This is an interesting idea which may be taken seriously given what has happened in the Gulf of Mexico.  As we have seen many times in the past in the shipping sector, it often takes a disaster to prompt international regulation.

7 Comments

  1. cuband cuband 1 June 2010

    I am curious about what other countries that could be affected by the spill can do – that is, do they have any way of making claims against the USA/BP if they ended up with massive cleanup projects or destroyed industries?

  2. James Harrison James Harrison Post author | 1 June 2010

    Article 194(2) of the Law of the Sea Convention requires states to “take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.” This is a reflection of the general duty for states to prevent pollution by activities within their jurisdiction from affecting other states and it is therefore arguably binding on all states as a matter of customary international law. However, it is not an absolute obligation and states are not expected to prevent all possible pollution. Rather it is a duty to act with due diligence. In other words, states shall take measures “using for this purpose the best practicable means at their disposal and in accordance with their capabilities.” (Article 194(1)) Thus, any state would have to show that the United States had not taken all the measures that were reasonably available to it to prevent and control the pollution. The burden of proof would be on any state bringing this claim.
    An obvious problem with bringing a claim against the United States is that it is not a party to the Law of the Sea Convention. Whilst it does not follow that the United States is not bound by the general duty described above, it does mean that it would not be possible to initiate litigation under the compulsory dispute settlement provisions of the Convention. Nor has the United States accepted the compulsory jurisdiction of the International Court of Justice under Article 36(2) of the ICJ Statute. Another basis of jurisdiction would have to be found to bring a claim or else the dispute would have to be resolved diplomatically.
    BP has no international legal obligations so no international legal claim could be brought directly against BP although it might be possible for a state or affected citizens to bring a civil claim against BP in domestic courts as a matter of domestic law.

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  4. rex dGrey rex dGrey 12 June 2010

    With the Global crises still pretty much on and with a huge debt in trillions how do you supposed the U.S. would act. With regards to international law its never really clear and as far as I can see obligation wise.

  5. Dallas Laryae Dallas Laryae 13 June 2011

    what impact have this oil spill had on international legislation?

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