This chapter assesses the need for, and the prospects of, a new international legal instrument establishing binding rules on liability and compensation governing transboundary losses from offshore oil and gas accidents. After rejecting the 2017 IMO-endorsed guidance document on offshore liability and compensation as wholly inadequate, the chapter highlights the civil liability nature of the instrument it proposes instead. Specifically, it focuses on the key elements that directly bear on the availability of funds adequate to meet potential liabilities, including likely damages associated with catastrophic accidents of the Deepwater Horizon category. It advocates a multi-tier approach to compensation, which beyond offshore operators’/licensees’ liability as the first tier, would feature a supplementary or secondary level of compensation in the form of a compensation fund as well as the source state’s financial intervention as an insurer of last resort, as necessary.
This chapter focuses on the role of international law in setting the basic parameters of the process through which the realisation of transboundary nuclear risks might be prevented. Specifically, the chapter first reviews transboundary nuclear pollution prevention from the perspective of customary international law, then from the viewpoint of the international nuclear safety regime centred principally on the Convention on Nuclear Safety and the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management. It concludes that while the principle of national responsibility still dominates the global discourse about nuclear safety, the increasing internationalisation of key aspects of nuclear safety as evidenced, in particular, by calls for the strengthening of international safety reviews in the wake of Fukushima, has become an essential underpinning to the very credibility of our convention-based global nuclear safety system. Finally, the chapter reviews two special situations in which one State’s nuclear power or fuel cycle activities impinge directly upon the territorial sovereignty of other States, hence giving rise to enhanced legal claims for protection against transboundary risks of nuclear harm: (i) the ‘border siting’ of nuclear facilities whose emergency planning zones would necessarily extend into neighbouring States’ territory and (ii) the maritime transportation of radioactive materials through foreign States’ territorial seas. The sections end with a suggestion of how in each situation the traditional balance of international rights and obligations might be adjusted to better accommodate risk-exposed States’ legitimate concerns.
Edited by Günther Handl and Kristoffer Svendsen
Edited by Günther Handl and Kristoffer Svendsen
When the new millennium began, rather ominously, with a series of spectacular natural and man-made catastrophes, some commentators spoke of these events as the opening act of an ‘age of disaster’ in which the line between man-made and natural disasters was increasingly becoming blurred. For others this beginning symbolized, more dramatically still, the dawn of a new geological epoch, the Anthropocene, a period in which human activity has begun to affect the very mechanics of ‘system Earth’ as such. Whatever this inauspicious beginning’s larger significance (or eloquent characterization), it surely was also a prosaic reminder of the inexorable increase in discrete, intrinsically man-made hazards capable of causing significant accidental harm. Prime illustrations of this phenomenon are the accidents at the Montara Wellhead Platform and the Macondo (Deepwater Horizon – DWH) oil well, in 2009 and 2010 respectively, as well as the (earthquake and tsunami-triggered) disaster at the Fukushima Daiichi nuclear power plant in 2011. Whereas, post-Fukushima, the nuclear industry underwent critical appraisal of its international regulatory framework and a tightening of its safety and emergency preparedness and response requirements, in the wake of the Montara and DWH accidents, the offshore oil and gas industry escaped global-level scrutiny and regulatory attention for the simple reason that the industry had remained largely unregulated internationally. To be sure, the two offshore accidents did trigger reviews and, in a few instances, specific adjustments of national (and regional) laws and regulations applicable to offshore oil and gas operations. By contrast, at the global level, efforts at expanding the offshore industry’s international governance structure beyond its presently extremely limited scope, let alone at establishing globally binding criteria to manage critical aspects of the risk of offshore accidents, have largely been stymied. This lack of international regulatory attention to the offshore industry, however, is unjustifiable given enormous actual (as demonstrated by the Ixtoc I and Montara incidents) or potential (as hinted at by the DWH event) transboundary impacts of offshore accidents and the state of global regulatory interdependence characteristic of the industry as a whole.