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Due Diligence as a Principle of Energy Law Due Diligence as a Principle of Energy Law

Due Diligence as a Principle of Energy Law - PowerPoint Presentation

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Due Diligence as a Principle of Energy Law - PPT Presentation

Dr Ilias Plakokefalos Assistant Professor Utrecht University Senior Research Associate Netherlands Institute for the Law of the Sea Terminology Due diligence refers to the nature of a concrete obligation ID: 474535

law obligation international losc obligation law losc international environmental article general pollution due diligence states eia prevent harm case

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Slide1

Due Diligence as a Principle of Energy Law

Dr. Ilias Plakokefalos, Assistant Professor, Utrecht University, Senior Research Associate, Netherlands Institute for the Law of the SeaSlide2

Terminology

Due diligence refers to the nature of a concrete obligation

In this case the relevant obligation is that of preventing environmental harm from activities relating to energy at sea

This obligation is an obligation of conduct and not of result (a distinction that despite being left out the ILC articles on state responsibility is highly relevant in this case).Slide3

Area of application

The due diligence obligation to protect (in this case the marine) environment extends to all aspects of planning, installing/constructing, transport/transfer, and decommissioning/abandonment of energy projects.Slide4

The Content of the (due diligence) Obligation to Prevent Environmental Harm

Environmental treaties (Espoo, the Convention on emergency preparedness and response among others), court decisions as well as the work of the International Law Commission and broad soft law instruments (Stockholm, Rio etc.) provide the basis for the general rule of prevention of environmental harm.Slide5

Law of the Sea Convention

LOSC

: General rule:

Article 194

States shall take measures to ensure that their activities do not cause damage to other states or to areas beyond areas where they exercise sovereign rights.

 

Despite the language here (to ensure) this is a clear obligation of conduct. It is evident from the language in the whole part that urges states to adopt measures to prevent pollution, to conform with international standards (generally accepted etc.).Slide6

Law of the Sea Convention

Article 208

: Coastal states must adopt measures to prevent, reduce and control pollution of the marine environment pursuant to

articles 60 and 80

.

Article 60

in combination with

a

rticle

80

EEZ and Continental shelf.

Article 60

: Coastal state has the right to construct installations and under

article 56

has jurisdiction over the protection of the marine environment. Slide7

Environmental Impact Assessment under LOSC

EIA: Article 206

: Substantial pollution criterion: probably oil platforms and pipelines fall under that criterion but still is out of tune with the general rules regulating marine pollution prevention

 

Case law corroborates these findings: MOX plant for example dealt extensively with the obligation to prevent pollution (EIA under OSPAR)

Slide8

Guidelines under LOSC

A question remains as to whether guidelines of international organizations (e.g. IMOs Code for the construction and equipment of mobile offshore drilling) are binding through art.211 of the LOSC.

A part of the literature maintains that IMO guidelines become binding through art.211. Probably not. The language of the article is permissive and hortatory (may give effect). It is unlikely that these guidelines and standards can be considered as binding.

 

Nonetheless they are important because they are useful in informing the general obligation of prevention under the LOSC. Also, the LOSC refers to the obligation of states to use the best practicable means.Slide9

General International Environmental Law

Virtually all of the prevention obligations therein have found their way into numerous environmental agreements and most of them consequently into customary international law.

The general obligation to prevent pollution is a customary obligation

Its constituent elements: inform, EIA, negotiate/consult, notifySlide10

EIA

More relevant for our purposes is the obligation to conduct an EIA because there is not much in the LOSC and this is how the obligation becomes strengthened the other way round: customary law adds layers of protection so to speak to the general and somewhat conservative obligation as it is found in the LOSC

 

Two tiers: triggering

(significant harm) and

content.

 Slide11

EIA under Espoo

Espoo Convention

: Significant adverse effects as opposed to the substantial

pollution standard of the LOSC.

A number of criteria to be taken into account: size, geographical location of the activity and a no-action alternative. Exchange of info with the possibly affected states

BUT

final

decision rests

with the state of origin.

This is the minimum content of the obligation. The specifics to be determined by national legislation/domestic law.

This is as far as international law goes: Important because most often the devil is in the details. Slide12

Should International Law Go Further?

Specific technical standards are bound to vary significantly (Arctic/Deep seabed examples)

Technology changes

Example: Same Season Well

Relief (Canadian Energy Board)

Therefore probably noSlide13

Due Diligence as a Flexible Standard

If one pays enough attention to the ITLOS Advisory Opinion the way is clear:  

Due diligence has to be more severe

in

riskier

activities’

Flexible standard

: International law should provide broad guidance NOT offer detailed technical standards