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
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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