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.