regards the North Sea area, there is a voluntary industry agreement, the Offshore
Pollution Liability Agreement 1974 (OPOL).
22
It would appear that IMO would be the most appropriate forum to address issues
relating to liability for offshore pollution in a global perspective. In the wake of the
Montana incident, Indonesia sought to have the IMO Legal Committee develop an
international treaty on this subject. The Committee decided, however, in 2012
23 not
to embark on the elaboration of such a treaty regime but to develop guidance to assist
States interested in preparing bilateral or regional arrangements.
24
When the issue was discussed in the Legal Committee it was argued that these
activities were not part of IMO’s mandate which was said to be confined to shipsourced pollution. It was also suggested that spills from offshore rigs differed from
ship-sourced oil spills, in that offshore exploration and exploitation activities were
normally carried out on the continental shelf of States and were regulated by national
law and bilateral and regional agreements, making the need for a uniform global
regime questionable.
It has been suggested, however, that these were not the real reasons behind the
Committee’s decision. Firstly, IMO’s mandate had over the years been expanded
significantly where there had been a political will to do so.
25 In addition, the States
that most strongly maintained that IMO was not the proper forum for the development of such a treaty were those with large or growing exploration and exploitation
industries that did not want such an international regime to be developed.
26
Notwithstanding the position taken by IMO, it is possible that the need for a
convention on offshore liability will be reconsidered in the future. It is conceivable
that some other intergovernmental organisation could take up this subject. In 2018
the CMI approached the United Nations Environment Programme (UNEP)
suggesting that the development of such a convention may be of interest for that
Organisation, but as of 1 October 2019 no reply had been received from UNEP.
In such a prospective offshore liability convention a number of legal issues would
have to be addressed. The types of installations and craft covered by the convention
would have to be clearly defined. The kinds of damage that would fall within the
scope of the convention must be determined. The subject(s) liable under the convention must be specified. There must be provisions on the basis of liability, and on
the grounds on which the subject(s) normally liable would be exempt from liability.
It would have to be decided whether the person(s) liable would be entitled to
22 As regards OPOL see Tromans (2015), p. 265.
23 LEG99/14 section 13.
24 In 2017 a guidance document was prepared by Denmark and Indonesia (LEG104/14/2). That
document did not include any substantive provisions on liability but rather contained a list of issues
that ought to be considered when bilateral and regional arrangements were developed.
25 See the 1990 International Convention on Oil Pollution Preparedness, Response and Cooperation
(OPRC), the 2009 Code for the Construction and Equipment of Mobile Offshore Drilling Units, and
the 1988 and 2005 Protocols for the Suppression of Unlawful Acts Against the Safety of Fixed
Platforms Located on the Continental Shelf.
26 Balkin (2014), p. 179.
264
M. Jacobsson
Pollution Liability Agreement 1974 (OPOL).
22
It would appear that IMO would be the most appropriate forum to address issues
relating to liability for offshore pollution in a global perspective. In the wake of the
Montana incident, Indonesia sought to have the IMO Legal Committee develop an
international treaty on this subject. The Committee decided, however, in 2012
23 not
to embark on the elaboration of such a treaty regime but to develop guidance to assist
States interested in preparing bilateral or regional arrangements.
24
When the issue was discussed in the Legal Committee it was argued that these
activities were not part of IMO’s mandate which was said to be confined to shipsourced pollution. It was also suggested that spills from offshore rigs differed from
ship-sourced oil spills, in that offshore exploration and exploitation activities were
normally carried out on the continental shelf of States and were regulated by national
law and bilateral and regional agreements, making the need for a uniform global
regime questionable.
It has been suggested, however, that these were not the real reasons behind the
Committee’s decision. Firstly, IMO’s mandate had over the years been expanded
significantly where there had been a political will to do so.
25 In addition, the States
that most strongly maintained that IMO was not the proper forum for the development of such a treaty were those with large or growing exploration and exploitation
industries that did not want such an international regime to be developed.
26
Notwithstanding the position taken by IMO, it is possible that the need for a
convention on offshore liability will be reconsidered in the future. It is conceivable
that some other intergovernmental organisation could take up this subject. In 2018
the CMI approached the United Nations Environment Programme (UNEP)
suggesting that the development of such a convention may be of interest for that
Organisation, but as of 1 October 2019 no reply had been received from UNEP.
In such a prospective offshore liability convention a number of legal issues would
have to be addressed. The types of installations and craft covered by the convention
would have to be clearly defined. The kinds of damage that would fall within the
scope of the convention must be determined. The subject(s) liable under the convention must be specified. There must be provisions on the basis of liability, and on
the grounds on which the subject(s) normally liable would be exempt from liability.
It would have to be decided whether the person(s) liable would be entitled to
22 As regards OPOL see Tromans (2015), p. 265.
23 LEG99/14 section 13.
24 In 2017 a guidance document was prepared by Denmark and Indonesia (LEG104/14/2). That
document did not include any substantive provisions on liability but rather contained a list of issues
that ought to be considered when bilateral and regional arrangements were developed.
25 See the 1990 International Convention on Oil Pollution Preparedness, Response and Cooperation
(OPRC), the 2009 Code for the Construction and Equipment of Mobile Offshore Drilling Units, and
the 1988 and 2005 Protocols for the Suppression of Unlawful Acts Against the Safety of Fixed
Platforms Located on the Continental Shelf.
26 Balkin (2014), p. 179.
264
M. Jacobsson