IMO, i.e. the 1992 Civil Liability Convention,
54 the 1992 Fund Convention,
55 the
2003 Supplementary Fund Protocol
56 and the 2001 Bunkers Convention.
57 The
United States, which is not a party to any of these Conventions, has comprehensive
national legislation in this field, the Oil Pollution Act 1990 (OPA-90). Liability for
pollution caused by non-persistent oil and other substances than oil is governed by
the domestic law of the coastal States since the 2010 Convention dealing with these
matters, the HNS Convention,
58 is not yet in force.
It appears that the above-mentioned treaties on liability and compensation do not
need any amendments as regards the Arctic region. Another question is whether the
amounts available for compensation under these treaties (in particular those under
the Bunkers Convention which provides for only fairly low limitation amounts)
would be sufficient in case of major oil spills in the remote Arctic region where lack
of oil combatting equipment, personnel and vessels and the severe climatic conditions would make pollution response very difficult and costly.
With regard to pollution liability in the Antarctic, the legal situation is unclear.
This is due to the fact that the liability conventions referred to above apply to
pollution damage caused and measures to prevent or minimize pollution damage
taken in the territory, territorial waters and EEZ of the States parties, but do not apply
to damage caused and measures taken on the high seas. As mentioned above, no
State may under the Antarctic Treaty claim territorial sovereignty in the Antarctic.
Consequently, there are no coastal States, territorial waters or EEZ in that region. It
submitted, therefore, that these Conventions do not apply to damage caused or
measures taken in the Southern Polar region.
59
54 The 1992 International Convention on Civil Liability for Oil Pollution Damage.
55 The 1992 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage.
56 The 2003 Protocol to the 1992 Fund Convention; the Protocol has not been ratified by the Russian
Federation and Iceland.
57 The 2001 International Convention on Civil Liability for Bunker Oil Pollution Damage.
58 The 2010 International Convention on Liability and Compensation for Damage in Connection
with the Carriage of Hazardous and Noxious Substances by Sea.
59 The 1992 Civil Liability Convention (and by reference the 1992 Fund Convention and the 2003
Supplementary Fund Protocol) apply to pollution damage caused in the territory, territorial sea and
the EEZ of a State party and to measures, wherever taken, to prevent and minimize such damage
(art. II). The Bunkers Convention and the HNS Convention contain an identical provision. It has
been argued that, as a result of the inclusion of the words wherever taken, preventive measures fall
within the scope of the treaties even if the measures were taken to prevent or minimize damage on
the high seas. The generally accepted interpretation is, however, that the words such damage restrict
the application to measures taken to prevent or minimize damage that is or would have been covered
by the treaties, i.e. damage in the territory, territorial sea or EEZ. This is the position taken by the
International Oil Pollution Compensation Funds; see Claims Manual (October 2016 edition),
paragraph 1.4.4, and Guidelines for presenting claims for clean-up and preventive measures
(2018 edition), paragraph 1.11, both adopted by the 1992 Fund Assembly. See also Jacobsson
(2016a), p. 294.
272
M. Jacobsson
54 the 1992 Fund Convention,
55 the
2003 Supplementary Fund Protocol
56 and the 2001 Bunkers Convention.
57 The
United States, which is not a party to any of these Conventions, has comprehensive
national legislation in this field, the Oil Pollution Act 1990 (OPA-90). Liability for
pollution caused by non-persistent oil and other substances than oil is governed by
the domestic law of the coastal States since the 2010 Convention dealing with these
matters, the HNS Convention,
58 is not yet in force.
It appears that the above-mentioned treaties on liability and compensation do not
need any amendments as regards the Arctic region. Another question is whether the
amounts available for compensation under these treaties (in particular those under
the Bunkers Convention which provides for only fairly low limitation amounts)
would be sufficient in case of major oil spills in the remote Arctic region where lack
of oil combatting equipment, personnel and vessels and the severe climatic conditions would make pollution response very difficult and costly.
With regard to pollution liability in the Antarctic, the legal situation is unclear.
This is due to the fact that the liability conventions referred to above apply to
pollution damage caused and measures to prevent or minimize pollution damage
taken in the territory, territorial waters and EEZ of the States parties, but do not apply
to damage caused and measures taken on the high seas. As mentioned above, no
State may under the Antarctic Treaty claim territorial sovereignty in the Antarctic.
Consequently, there are no coastal States, territorial waters or EEZ in that region. It
submitted, therefore, that these Conventions do not apply to damage caused or
measures taken in the Southern Polar region.
59
54 The 1992 International Convention on Civil Liability for Oil Pollution Damage.
55 The 1992 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage.
56 The 2003 Protocol to the 1992 Fund Convention; the Protocol has not been ratified by the Russian
Federation and Iceland.
57 The 2001 International Convention on Civil Liability for Bunker Oil Pollution Damage.
58 The 2010 International Convention on Liability and Compensation for Damage in Connection
with the Carriage of Hazardous and Noxious Substances by Sea.
59 The 1992 Civil Liability Convention (and by reference the 1992 Fund Convention and the 2003
Supplementary Fund Protocol) apply to pollution damage caused in the territory, territorial sea and
the EEZ of a State party and to measures, wherever taken, to prevent and minimize such damage
(art. II). The Bunkers Convention and the HNS Convention contain an identical provision. It has
been argued that, as a result of the inclusion of the words wherever taken, preventive measures fall
within the scope of the treaties even if the measures were taken to prevent or minimize damage on
the high seas. The generally accepted interpretation is, however, that the words such damage restrict
the application to measures taken to prevent or minimize damage that is or would have been covered
by the treaties, i.e. damage in the territory, territorial sea or EEZ. This is the position taken by the
International Oil Pollution Compensation Funds; see Claims Manual (October 2016 edition),
paragraph 1.4.4, and Guidelines for presenting claims for clean-up and preventive measures
(2018 edition), paragraph 1.11, both adopted by the 1992 Fund Assembly. See also Jacobsson
(2016a), p. 294.
272
M. Jacobsson