Due Diligence as a Principle of Energy Law

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 Sea

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).

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.

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.

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. ).

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 article 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.

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)

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.

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, notify

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.

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.

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 no

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