Melting of the Arctic ice, caused by global warming and energy security issues, has led Arctic states to prospect further North for new petroleum opportunities. Consequently, the already fragile Arctic marine environment has been further compromised. The Arctic coastal states, under the Ilulissat Declaration, agreed that UNCLOS will provide a legal basis for the regulatory framework in the Arctic, supplemented by Arctic Council soft-law. Consequently, the environmental issues in the Arctic, arising as a result of O&G activities, mainly have to be dealt under the discretion of the Arctic coastal states’ regulations.
By analysing current environmental regulation in the Arctic, the paper aims to discover if the framework can ensure that petroleum activities are carried out in an environmentally safe fashion. To make sure that the Arctic states can address the aforementioned issues, under national legislation, the paper will examine Russia’s and Norway’s petroleum regulations applicable to the Arctic.
In the light of the performed analysis, the paper will propose to address the regulatory gaps created as a result of environmental issues arising from petroleum activities in the Arctic under the Arctic Framework Treaty. To address topical issues at the sub-regional level, an ecosystem-based management plan will be analysed, and suggesting its implementation on the Russian continental shelf.
CONTENTS
Abstract
Acknowledgements
Abbreviations
Table of Statutes
CHAPTER 1. INTRODUCTION
1.1 The Oil and Gas Activities in the Arctic: Environmental Consequences and Importance of an Adequate Regulation
1.1.1 The Size of the “Prize”
1.1.2 Environmental Impact Arising From E&P Activities in the Arctic
1.1.3 Current Regulation to Address O&G Activities in the Arctic
1.2 Aim and Objectives of the Research
1.3 Research Limitation
1.4 Literature Review
1.5 Expected Research Outcomes
CHAPTER 2. CURRENT REGULATION AND REGULATORY GAPS RELATED TO O&G SECTOR IN THE ARCTIC REGION
2.1 Introduction
2.2 Main Hard Law Regulation of the Arctic Region
2.2.1 UNCLOS
Relevant Provisions to O&G Sector
Gaps Addressing O&G Activities in the Arctic
2.2.2 MARPOL 73/78
2.2.3 OPRC Convention
2.2.4 London Convention
2.2.5 OSPAR Convention
Main Provisions Related to O&G Activities
Major Gaps of the Conventions
2.3 Soft Law Regulation of the Arctic
2.3.1 Role of the Arctic Council in Environmental Protection of the Arctic
Regulation Addressing O&G Activities
The Arctic Council Gaps
CHAPTER 3. LEGALLY BINDING APPROACHES IN ADDRESSING ENVIRONMENTAL REGULATORY GAPS OF THE O&G SECTOR IN THE ARCTIC
3.1 Introduction
3.2 Addressing Environmental Regulatory Gaps in the Arctic Under the Auspices of the International and Regional Regulations
3.2.1 Adopting Arctic Regulation Under UNCLOS Provisions
3.2.2 Expansion of the Spatial Scope of the OSPAR Convention
3.2.3 The Antarctic Treaty System
3.2.4 Granting the Arctic Council Status of Intergovernmental Organisation
The Arctic Framework Treaty
Protocol and Safety Net
Supportive Agreements
Working Groups
Membership
Territorial Scope
CHAPTER 4. ADDRESSING O&G ACTIVITIES IN THE ARCTIC UNDER COSTAL STATES REGULATION - NORWAY AND RUSSIA CASE STUDIES
4.1 Introduction
4.2 Norway Case-study
4.2.1 Environmental Regulation Pertaining to Offshore O&G Activities in the Arctic
Licensing and Permitting
Oil Spill Preparedness and Response
Environmental Liability
4.3 Russia Case-study
4.3.1 Environmental Regime Pertaining to Offshore O&G Activities in the Arctic
Licensee Obligations and Permitting
Oil Spill Response and Monitoring
Environmental Pollution Liability
4.4 Managing Arctic Area on Sub-regional Level: Norwegian Approach-Possibilities for Russia
4.4.1 The Integrated Management Plan for the Marine Environment of the Barents Sea−Lofoten Area
Planning Process
Implementation of the Plan
Addressing O&G Activities under the Management Plan
Russia’s Response Towards the Management Plan
CHAPTER 5. RECOMENDATIONS AND CONCLUSIONS
5.1 Conclusions
5.1.1 The Fragile Arctic
5.1.2 Regulatory Gaps of the Arctic Region
5.1.3 Addressing Regulatory Gaps on Regional Level
5.1.4 Addressing Regulatory Gaps on Sub-regional Level
5.2 Recommendations
5.2.1 Recommendations on Adopting of ATF on Regional Level
5.2.2 Recommendations on Adoption of the Integrated Ecosystem-Based Management Plan on Sub-regional Level
BIBLIOGRAPHY
ABSTRACT
Melting of the Arctic ice, caused by global warming and energy security issues, has led Arctic states to prospect further North for new petroleum opportunities. Consequently, the already fragile Arctic marine environment has been further compromised.
The Arctic coastal states, under the Ilulissat Declaration, agreed that UNCLOS will provide a legal basis for the regulatory framework in the Arctic, supplemented by Arctic Council soft-law. Consequently, the environmental issues in the Arctic, arising as a result of O&G activities, mainly have to be dealt under the discretion of the Arctic coastal states’ regulations.
By analysing current environmental regulation in the Arctic, the paper aims to discover if the framework can ensure that petroleum activities are carried out in an environmentally safe fashion. To make sure that the Arctic states can address the aforementioned issues, under national legislation, the paper will examine Russia’s and Norway’s petroleum regulations applicable to the Arctic.
In the light of the performed analysis, the paper will propose to address the regulatory gaps created as a result of environmental issues arising from petroleum activities in the Arctic under the Arctic Framework Treaty. To address topical issues at the sub-regional level, an ecosystem-based management plan will be analysed, and suggesting its implementation on the Russian continental shelf.
ACKNOWLEDGEMENTS
I would like to say thank all of those who have helped me during this project, with particular mention of:
My incredibly supportive family and in particular my brother Roma Grigorjev, who has always believed in me, and gave me strength when I felt discouraged.
MarenAune from Statoil and Martin Somerkorn from WWF for providing valuable information on dissertation material and Raymond Utuk for critical comments and encouragement.
Finally, I would like to express my very great appreciation to my supervisor, Hayley Green for her insightful guidance.
ABBREVIATIONS
illustration not visible in this excerpt
TABLE OF STATUTES
International Legislation
Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic 2011
Agreement on Cooperation on Marine Oil Pollution Preparedness in the Arctic 2013
Arctic Waters Pollution Prevention Act 1970
Convention on Environmental Impact Assessment in a Transboundary Context 1991
International Convention on Oil Pollution Preparedness, Response and Co-operation 1995
Ottawa Declaration on the Establishment of the Arctic Council 1996
Protocol on Environmental Protection to the Antarctic Treaty 1991
The Antarctic Treaty 1959
The Convention for the Prevention of the Marine Environment of the North-East Atlantic 1992
The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972
The Declaration on the Establishment of the Arctic Council 1996
The Ilulissat Declaration 2008
The International Convention for the Prevention of Pollution From Ships, 1973/1978
United Nations Convention on the Law of the Sea 1982
Norwegian Legislation
Activities and at Certain Onshore Facilities 2011
Infrastructure Planning Regulations 2009
Pollution Control Act 1981
Petroleum Activities Regulation 1997
Public Administration Act 1985
Regulations Related to Health, Safety and the Environment in the Petroleum Resource Management Regulations 2001
The Constitution of Kingdom of Norway 1814
The Maritime Code 1994
Marine Resource Act 2009
The Petroleum Activities Act 1996
Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean. Signed on 17 June 2010 and accepted on 22 June 2010
Russian Legislation
Code of the Administrative Offences of the Russian Federation 2001
Constitution of Russian Federation 1993
Federal Law on the Continental Shelf of the Russian Federation 1995
Federal Law on Ecological Expert Review 1995
Federal Law on Environmental Protection 2002
Federal Law on the Exclusive Economic Zone 1998
Federal Law on Industrial Safety of Hazardous Production Sites 2003
Federal Law on Subsoil Resources 1992
Russian Government Resolution No. 613 About the urgent measures for the prevention and elimination of emergency oil spills 2000
Russian Government Resolution No. 240 of the on Approval of the Rules for the Prevention and Liquidation of Oil and Petroleum Product Spills on the Russian Territory 2002
Strategy for the Development of the Arctic Zone of the Russian Federation and National Security up to 2020 adopted by Russia President 26th February 2013
The Criminal Code of the Russian Federation 1996
The Water Code of the Russian Federation 1995
LIST OF ILLUSTRATIONS
Illustration 1: Timeline of Recovery from the Exxon Valdez Oil Spill
LIST OF FIGURES
Figure 1: Current Regulatory Framework for Offshore O&G Activities in the Arctic
Figure 2: The Norwegian Environmental Authorities
Figure 3: State Administration System for Environmental Protection of Russian Federation
CHAPTER 1. INTRODUCTION
1.1. The Oil and Gas Activities in the Arctic: Environmental Consequences and Importance of an Adequate Regulation
1.1.1. The Size of the “Prize”
The Arctic Region is a fragile eco-system, which accounts for about 6% of the Earth.[1] However, in accordance with the United States Geological Survey (USGS) of the Arctic resource appraisal it was estimated that the region holds the largest untapped oil and gas (O&G) reserves on earth, containing approximately 20% of the world’s non-discovered recoverable hydrocarbons, of which approximately 84% occurs offshore.[2]
Together with the environmental challenges, global warming, and the consequent melting of the Arctic ice cover, has created new opportunities to discover the Northern frontier. The ice cap melting has made some areas in the Arctic region seasonally accessible, thus prompting optimism that significant petroleum E&P is imminent.[3]
Despite increased optimism, E&P activities in the Arctic are tremendously challenging, due to extreme weather conditions, permanent ice cover and remoteness from the infrastructure.[4] Furthermore, a lack of experience of operating in such extreme conditions, allied to technological limitations this imposes on emergency response capability, will result in low efficiency of oil spill clean-up operations.[5] The foregoing factors mean that the cost of E&P activities in the Arctic will be considerably higher than elsewhere, thus signalling the end of the era of easy O&G..[6] However, the aforementioned facts have not discouraged the growth of E&P activity across Arctic countries. Contrary, there has been a growth in such E&P activity, with the financial and energy security benefits, as well as the pick oil concerns at the forefront of collective government thinking. As pointed out Andrew Reid, CEO of energy analyst Douglas Westwood:
More than 400 fields have been discovered to date in the Arctic, providing reserves in excess of 240 Bboe. There is no doubt that further drilling activity in this region could have a major impact on offshore production in the foreseeable future.[7]
1.1.2. Environmental Impact Arising From E&P Activities in the Arctic
The Arctic region is home to more than 30 indigenous peoples’ cultures and is the permanent habitat for numerous rare animal species such as polar bears, arctic foxes, and snowy owls. The region itself is a vast untapped area consisting of fjords and tundra, frozen seas, glaciers and icebergs.[8] With the Arctic States engaging in a “race for oil”, the area has been identified as the next oil frontier. Consequently, E&P activities will bring new environmental challenges to the region’s already fragile eco-system.
The main environmental issues arising from such activities are:
i. Climate change due to increased CO2 emission arising from installations and infrastructure development and gas flaring;[9]
ii. Pollution by oil spills, discharges, processed waters and drilling muds. Due to the harsh weather conditions and prolonged period of polar night, oil spills could stay undetected for long periods of time;[10]
iii. Difficulties related to clean-up operations. The region’s harsh environment usually results in a very small recovery percentage of oil spills-around 10-15%. This problem is further exacerbated by the dearth of Arctic infrastructure in place to respond rapidly to accidents.[11]
Greenpeace representative, Ben Stewart, noted that: ‘ All the information we have is that an Arctic oil spill would be impossible to clean up’ . [12]
iv. Oil pollution in the Arctic region has the potential to increase mortality rates of marine mammals, fish and birds, and could even lead to permanent extinction of some species. For instance, the Exxon Valdez oil spill in Alaska, where 257,000 barrels of oil was released into the water,[13] had a dramatic environmental impact on marine mammals, seabirds, fish and eco-system, at recovery rate of 8%. Even 25 years after the disaster, wildlife has not fully recovered yet[14] (Illustration 1);
v. Indigenous peoples’ diet and way of life are highly dependent on the Arctic marine life. Consequently, the diminishment of the flora and fauna of the Arctic, due to the O&G activities, will affect health and wellbeing of the local communities.[15]
illustration not visible in this excerpt
Illustration 1: Timeline of Recovery from the Exxon Valdez Oil Spill[16]
In conclusion, even if all aforementioned issues are addressed accordingly, there remains very little information on how the Arctic eco-system functions. The lack of knowledge makes it difficult to predict the effect of a large-scale development in the region. As was highlighted by the US Arctic Research Commission, ‘the Arctic Ocean is the least well known ocean on the planet’.[17]
1.1.3. Current Regulation to Address O&G Activities in the Arctic
In light of the increased economic activities in the Arctic, current regulation will not be able to eliminate all attendant issues, especially those in respect of environmental sanctity. Presently, although there are international and regional regulations, as well as bilateral treaties, to address environmental issues arising from E&P in the Arctic, there is no regulatory body or binding law, which would exclusively tackle these issues.[18]
The Arctic Council (AC) is the primary intergovernmental forum, established to address E&P and other environmental issues of the region, with the aim of promoting sustainable development and environmental security of the region. However, despite the fact that the council has delivered innovative guidelines in this respect, lacunae still remain, non-legally binding obligations of AC, lack of intergovernmental organisation status, and as a consequence its inability to issue legally binding regulation.[19]
Despite the regulatory gaps, which are likely to become more numerous and apparent in tandem with the increasing activity in the area, the Arctic States, under the Ilulissat Declaration,[20] confirmed that there is no necessity to adopt a new regulation. Consequently, in accordance with the Declaration, E&P activity in the region should continue to be governed under the present international law, national regulation and coastal states cooperation.[21]
With regards to addressing these issues on a national level, even though Norway and Russia enhanced their cooperation in addressing environmental issues, for instance by creating a dialogue through Barents 2020,[22] both countries have contrasting experiences in addressing environmental regulatory gaps related to O&G sector in the Arctic.[23]
In conclusion, critical questions remain; is the current regulatory framework, applicable to the Arctic, capable of effectively eliminating and mitigating rising environmental concerns in relation to O&G activities in the region, and will coastal states be able to address the aforementioned issues effectively on a national level, as was encouraged under the The United Nations Convention on the Law of the Sea provisions (UNCLOS).[24]
1.2. Aim and Objectives of the Research
The primary aim of the research is to analyse the Arctic regulatory framework pertaining to O&G activities in the area, in order to identify its credibility in addressing environmental issuespertaining to petroleum activities in the offshore Arctic, such as oil pollution and climate change,while also identifying regulatory gaps related to O&G activity in the region.
Secondly, an investigation of UNCLOS, OSPAR and the Antarctic Treaty will be performed in order to find out if the regulatory gaps, relating to environmental issues arising from E&P activities in the Arctic, can be adequately addressed under the auspices of the conventions.This will be followed by an analysis ofthe proposed Arctic Framework Treaty(AFT) as the most appropriate approach to address environmental regulatory gaps in the Arctic pertaining to O&G activities.
Finally, in order to determine if the arctic states are capable of addressing E&P issues successfully at national level, while relying on current international regulation, comparative analyses of Norway and Russia national legislationwill be conducted.Specific attention will be on the following regulations:
Russian:
- Federal Law on Ecological Expert Review 1995
- Federal Law on Environmental Protection 2002
- Federal Law on the Continental Shelf of the Russian Federation 1995
Norwegian:
- Pollution Control Act 1981
- The Petroleum Activities Act 1996
Particular attention will be paid to the environmental and continental shelf regulation of Russia. This focus is a result of the Arctic region undiscovered resource appraisal estimate that majority of it is deposited under Russia’s continental shelf. Consequently, regulatory gaps and policy missteps addressing offshore activities at the Russian national level could have major environmental impact in the Arctic region.
Finally, the comparative analysis will be followed by suggesting sub-regional approach to improve O&G regulatory gaps at Russia’s national level and to improve cooperation between the two countries.
1.3. Research Limitation
The research will be delimited to addressing environmental issues in the Arctic, solely stemmed from O&G sector activities. Consequently, there will be no research concluded in relation to other sectors of the Arctic region. Additionally, human activities beyond the Arctic but having an impact on the Arctic region, for example, global warming or air pollution will not be taken into account.
1.4. Literature Review
There are strong opinions that increasing O&G activities in the Arctic can no longer be addressed under the present regulation, especially with unilateral resource development by Arctic States and frequent violations of international environmental principles. One of the most noticeable experts of the topical issue, TimoKoivurova highlights:
If the AC continues without legal mandate there is a great danger of it becoming facade under which unilateral and uncoordinated developmentorientated policies of the states in the region can proceed; a scenario which already dominates much of the development of the Arctic.[25]
Another Arctic studies scholar, Erik J. Molenaar,[26] highlighted significant gaps related to Arctic O&G regulation and stressed the need for addressing these issues.
When it comes to addressing these issues, even though the majority of experts agree on introducing legally binding regulation for the region, their approaches to addressing these gaps differ. For instance, Linda Nowlan[27] is in favour of a legally binding environmental regime for the Arctic, based on the Antarctic Treaty System (ATS),[28] with innovative features could help to address uniqueness of the Arctic environment while also streamlining its legal system. On the other hand, Kristin Noelle Casper[29] suggests addressing the Arctic region under the The Convention for the Prevention of the Marine Environment of the North-East Atlantic (OSPAR) through an adjustment of its territorial scope. Additionally, Olav SchramStokke[30] points out that hard law regime for the region would not significantly improve the current state of the region, therefore arguing that UNCLOS should remain the key legal platform in the Arctic.
The Author is more in favour of TimoKoivurova’s[31] approach to addressing current environmental regulatory gaps in the region by creating AFT under the auspices of AC. By contrast, Charles Ebinger and others[32] insist that AC should continue to function as the main body of scientific studies in the region without turning into a policy-making entity.
With regards to addressing regulatory gaps at national level, many scholars are in favour of the bi-national approach. For instance, Charles Ebinger and others[33] explains that because the Arctic weather conditions differ depending on the region, local approaches can effectively address missteps of the regional or international regulation.
When comparing Norway and Russia’s national regulations, most of the conclusions were drawn from the critical analysis of both countries legislation relating to the O&G sector. However, analysis was supported by the following experts’ opinions:
- Mikhail Kashbsky[34] - states that despite improvements in Russia’s environmental legislation over the years, it still contains many missteps;
- Carol Dinkins[35] - compliments the overall strength of the Norwegian offshore O&G regime;
- Arild Moe[36] - stresses the importance of two countries cooperating in order to preserve the environment of the Arctic region.
1.5. Expected Research Outcomes
On completion of the present research, the following outcomes are expected:
1. Understanding current regulation of the Arctic Region and its regulatory gaps, and stating the need for a regional framework agreement, which would govern the Arctic Area.
2. Familiarising with the different regulatory methods to address environmental issues, stemmed from O&G activities in the Arctic, before proposing the most suitable approach to address this issue at the Arctic regional level.
3. Detailed and informed perspective of both Russian and Norwegian regulatory regimes and policies addressing environmental issues arising from E&P activities in the Arctic.
4. Identification of missteps and gaps in Russian and Norway O&G regulation and policies addressing E&P activities in the Arctic, before providing regulatory approach to addressing these issues on sub-regional level.
CHAPTER 2. CURRENT REGULATION AND REGULATORY GAPS RELATED TO O&G SECTOR IN THE ARCTIC REGION
2.1. Introduction
The current regulation of the Arctic region is an extremely complex interplay of national, regional and international laws, and multilateral and bilateral treaties[37] (Figure1). However, as it is specific to addressing O&G activities, many scientists, experts and NGOs criticise its inconsistency and superficiality, noting that it only addresses environmental issues in the Arctic in a fragmented manner and just provides general guidance without addressing specific issues.[38] Nevertheless, the Arctic States, in the Ilulissat Declaration, have stated that adoption of new regulation is unnecessary and that E&P activity in the region should be governed under the present international law, national regulation and coastal states cooperation.[39]
Presently, the main regime, which directly addresses E&P activities of the region, consists of various ‘soft law’ treaties, guidelines and industry practices, supported by AC – inter-governmental operational body and discussion forum. Despite the employed by the AC soft law provides more detailed way of addressing increasing environmental issues of the Arctic,[40] especially when compared to the legally binding approaches of the region, its major drawback is its inability to impose binding obligations.[41]
illustration not visible in this excerpt
Figure 1. Current Regulatory Framework for Offshore O&G Activities in the Arctic[42]
In this section, the key Arctic regulation addressing environmental issues arising from the O&G sector will be analysed in order to identify main regulatory and governance gaps in addressing E&P activities. In conclusion, a summary of the current regulatory gaps in the regulation of addressing O&G activities in the Arctic region will be presented, stating if the current regulation is strong enough to address raising environmental issues of the O&G industry, as well as if there is a need for the additional regulation to address aforementioned issues.
2.2. Main Hard Law Regulation of the Arctic Region
2.2.1. UNCLOS
UNCLOS was adopted in 1982 and integrated by two implementation agreements.[43] To date, it is the most critical internationally binding regulation ‘for the oceans, which lessens the risk of international conflicts and enhances stability and peace in the international community’.[44] Although UNCLOS is not particularly designed to address O&G activities in the region, it supplies a broad framework for the regulation of such activities in the Arctic,[45] leaving operational regime to discretion of the coastal states.[46] Despite the general character of the convention in addressing ecologicalmatters related to E&P activity in the Arctic, under the Ilulissat Declaration five arctic states explicitly stated their commitment to UNCLOS as the primary legal platform in the polar region.[47]
- Relevant Provisions to O&G Sector
One of the main objectives of UNCLOS as it relates to O&G activities is the setting of the continental shelf limits, and the grant of sovereign rights to coastal states in order to allow them to perform E&P activities within these limits.[48] For instance, the Article 56 (1) grants coastal states legal rights to perform resource E&P within their continental shelves.[49] Article 76 sets the definition of the continental shelf and gives coastal states rights to claim an extension of it.[50] The ability, under UNCLOS provisions, to extend Exclusive Economic Zone (EEZ) up and beyond the 200 nautical miles made coastal states near-monopoly regulators of high seas areas beyond the continental shelf. Consequently, its creeping jurisdiction[51] made the Arctic states clear beneficiaries of the convention and therefore unwilling to undermine it.[52]
Part II of UNCLOS contains general provisions addressing marine environment pollution stemming from offshore operations.[53] For instance, in accordance with Article 145, laws should be adopted to prevent and mitigate pollution from activities such as drilling, construction, installation of pipelines, and other devices and activities. The main provisions regarding marine protection presented under Part XII of UNCLOS introduces ‘legal duty to protect and preserve the marine environment’,[54] stressing the need for global and regional cooperation,[55] and making sure that ‘states shall endeavour to harmonise their policies’[56] when taking measures ‘necessary to prevent reduce and control pollution of the marine environment from any source’.[57]
It should be noted that in accordance with UNCLOS, the Arctic is regarded in a similar manner to other marine areas. However, the exception provides Article 234, which addresses pollution in ice-covered areas, encourages coastal states to introduce necessary regulation to address pollution in such areas within the limits of their EEZ.[58] Notably that the article mentions pollution from vessels only, with no specification as to pollution from O&G activities. For instance, under the aforementioned article, Canada imposes stricter regulation on sources of pollution from vessel construction and navigation in its Arctic waters.[59]
- Gaps Addressing O&G Activities in the Arctic
Despite UNCLOS being the main legal platform of the Arctic region environmental regulation, there are significant regulatory and governance gaps that have been identified in addressing E&P activities in the region. Firstly, there is absence of a governance authority, which would supervise and revise the convention.[60] Furthermore, the main governance gaps of UNCLOS are its general character and its lack of specification in addressing O&G activities. Even though the convention encourages the Arctic states to introduce specific regime for addressing environmental issues, it does not provide sufficient guidelines or requirements.[61]
Regarding specific gaps, although there are overall obligations to protect the marine ecosystem from such activities as laying cables, pipelines and seabed constructions,[62] there are no specified requirements for Environmental Impact Assessment (EIA) procedure, as well as no guidelines on how to prevent, minimise or monitor the impact from such activities. Additionally, there are no modern regulatory tools introduced, such as Strategic Environmental Assessment (SEA) to address current and newly developed activities in the Arctic, such as floating installations and CO2 sequestration.[63]
In conclusion, there is another gap, which is very significant to the Convention’s binding nature across the Arctic states. The US’ non-ratification of UNCLOS, due to its unwillingness to accept the dispute resolution procedure[64] has made it impossible for the procedure to become a part of the international common law. The dispute resolution procedure is an important element of the convention that played a key role in its adoption. The inability to apply this procedure in disputes between the US and other Arctic countries is a significant gap in the UNCLOS legal framework.[65]
2.2.2. MARPOL73/78
The MARPOL[66] is the main international convention on safeguarding the marine environment from oil pollution, chemicals and harmful substances emanating from seagoing ships operations.[67] The Convention has been adopted by all eight Arctic states.[68]
Despite the MARPOL limited provisions in respect of O&G activities, it does ban discharge of sewage into the sea,[69] and also introduces discharge[70] and emission standards for offshore constructions.[71] It should be noted that in order to address O&G activities in accordance with the convention “fixed and floating platforms” to be interpreted under “ship” definition.[72] For instance, rules for rigs of certain tonnage, which were installed for E&P purposes, fell into the same category as ships.[73]
Annex I of MARPOL addresses issues related to oil pollution and provides controls for the method and amount of oil being discharged into the sea. Additionally, Annex I establishes “special areas”[74] with stricter prohibition on discharges,[75] as well as oil pollution emergency plan.[76]
The significant gaps in the convention are its failure to address special environmental issues and conditions of the Arctic area, and its failure to specify provisions to addressing pollution from offshore E&P activities.[77] For instance, Annex I of the convention addresses “Special Areas” which are particularly vulnerable to ship pollution, identifying Antarctica as a “particularly sensitive area”. However, no such areas were designated in the Arctic.[78] Even though MARPOL provisions address pollution from fixed and floating platforms, they do not cover pollution from mobile offshore drilling units. In conclusion, to make sure that MARPOL can effectively address E&P in the Arctic, the convention needs to be expanded to O&G activities.[79]
2.2.3. OPRC Convention
International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC) was presented by IMO as one of the measures in response to Exxon Valdez oil spill.[80] The Convention applies to any vessels, fixed and floated offshore installations or any construction involved in O&G exploration and production activities, such as seaports, oil terminals and pipelines.[81] To date, all eight Arctic states are parties of the OPRC convention.[82]
The objective of the convention is an obligation on its signatories to cooperate in the instance of oil pollution and to prepare and respond to such accidents.[83] For example, Article 3 stipulates that production platform, drilling units and ships have to have oil pollution emergency plan. Additionally, OPRC obliges its signatories to require that operators of offshore units employ oil pollution emergency plans, which should be approved in accordance with the national standards. Also, parties have to introduce measures at domestic level or in cooperation with other parties to deal with oil pollution.[84]
In conclusion, in case of absence of other specific regulation addressing offshore O&G issues, the OPRC Convention is the most important document regulating such issues, introducing very specific provisions in addressing marine pollution from offshore installation.[85]
2.2.4. London Convention 1972
The main aim of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention 1972) is to avert sea pollution from dumping of wastes and other matters[86] from platforms, vessels and other structures. Also, it seeks to prevent the deliberate dumping from the offshore platforms, which could be hazardous to the marine ecosystem and human wellbeing.[87] However, it does not address disposal during the normal operation of the offshore platform.[88]
Later, in 1996, the Dumping Protocol[89] was adopted, replacing the convention and requiring separate ratification. The protocol presented more restrictive provisions on dumping, defining a larger territorial scope than was previously set in the convention. Furthermore, the protocol followed the global trend towards the polluter pays principle (PPP), precautionary approach, and prohibited all dumping into the sea, with the exception of “reverse list”.[90]
In conclusion, the convention is not Arctic-specific. Furthermore, even though it bans deliberate platform disposal, it does not specify waste disposal related to offshore petroleum activities.[91] Regarding to Arctic states’ participation, despite all eight countries signing the convention, the protocol was ratified by only five arctic states,[92] thus creating a large regulatory gap.[93]
2.2.5. OSPAR Convention
The OSPAR,[94] which comprises 40% of the convention’s spatial scope with five Arctic countries[95] under this territory.[96] Despite the fact it covers only a limited segment of the region, it is ‘one of the most applicable international agreements addressing the Arctic marine pollution from various sources’.[97] OSPAR has two main objectives. Firstly, it seeks to protect human health and eco-system and restore the marine environment. Secondly, it encourages signatories to take all possible measures to prevent pollution[98] from land–based[99] and offshore[100] sources, dumping and incineration,[101] and protect seas from human activities.[102]
- Main Provisions Related to O&G Activities
The convention extensively addresses pollution from offshore E&P operations and offshore installations. These issues are addressed under Articles 4 and 5, as well as Appendixes II and III, under the Offshore O&G Strategy,[103] and other decisions and recommendations. OSPAR provides definitions of “offshore activities”,[104] “offshore sources”[105] and “offshore installations”,[106] as well as established marine protected areas in the Arctic region.[107] Some of the aforementioned regulations significantly complement MARPOL 73/78.[108]
OSPAR introduces modern approaches that contracting parties have to follow in accordance with the aims of the convention.[109] For instance, parties should apply the ‘precautionary principle’,[110] PPP,[111] as well as best available techniques and practices, taking into consideration the standards set out in Annex 1 of the convention.[112] Regarding EIAs, OSPAR does not provide a separate process for executing EIAs or SEAs. However, it introduces a general obligation to execute quality assessment and monitoring of the seas.[113] Additionally, certain human activities such as dumping or E&P de facto require EIA procedure.[114]
To evaluate conditions of the North-East Atlantic and to take further steps in promoting environmentally sound seas, OSPAR presented the Quality Status Report 2010, stressing the need:
…the suitability of existing measures to manage oil and gas activities in Region I, and continue monitoring and assessment and improve the evidence base for evaluating the impact of the offshore industry on marine ecosystems.[115]
The report provides assessments on different activities such as: discharges, spills and emission from the offshore installation. For instance, according to the Report, overall pollution related to O&G activities has reduced and oil discharges have dropped by 20 percent since 2000, showing that the environmental impact of O&G activities in some installation areas has improved.[116]
- Major Gaps of the Convention
Overall, the convention strongly addresses issues related to the E&P activities in the North-East Atlantic by enhancing biodiversity and ecosystem protection,[117] issues, which are significantly influenced by the O&G industry.[118] Despite the convention’s robust regulation of offshore activities and its laudable complementation of UNCLOS, by providing a legal framework for implementing Part XII of UNCLOS,[119] it only covers part of the Arctic region. Also, it should be noted that Canada, the US are not signatories to the convention, as well as Russia, despite being part of the North-Atlantic Region. Non-participation of the Arctic states once again creates a significant gap across the Arctic states.
2.3. Soft Law Regulation of the Arctic
2.3.1. Role of AC in Environmental Protection of the Arctic
The council was founded in 1996, under the Ottawa declaration,[120] as an inter–governmental, project-driven operational body aiming to provide scientific knowledge on alarming environmental issues in the Arctic.[121] Additionally, it provides a forum for discussions, promoting cooperation on environmental protection issues and encourages sustainable development between the Arctic countries,[122] Indigenous people and observers.[123] Regarding regulatory powers, the Council does not possess the mandate to impose legally binding obligations on its participants and only provides policy guideline and recommendations, with suggestions to adopt them at national level.[124]
There are six working groups (WG) under the auspices of the council. Three of them are more focused on O&G activities than the others: Protection of the Arctic Marine Environment (PAME),[125] Emergency Prevention Preparedness and Response (EPPR),[126] and Arctic Monitoring and Assessment Programme(AMAP).[127] In addition to WG, there are also tasks forces, which are established to work on specific issues until desired result is produced. For instance, realising that there is no marine pollution response mechanism specifically for the Arctic region, Task Force on Arctic Marine Oil Pollution Preparedness and Response was created at Ministerial Meeting at Nuuk, based on provisions of OPRC Convention.[128]
- Regulation Addressing O&G Activities
Regarding the E&P activities, the most important document issued by the Council is the Arctic Offshore Oil and Gas Guidelines. It comprises of various recommendations and practices to address offshore E&P activities. The guidelines ‘intend to encourage the highest standards currently available’, employing OSPAR approaches such as best available techniques and practices; the polluter pays principle; necessity for EIAs; emergency response plans and risk assessment procedures.[129]
Nevertheless, some member states remain sceptical about the guidelines, highlighting their non-binding nature as a weakness. Furthermore, they also point out the absence of key issues, for instance, the question of ‘whether oil companies should be required to maintain same-season relief well capability’.[130] Despite these concerns, the guidelines should still be considered as a very comprehensive document, which successfully addresses major issues of the offshore E&P activities. Furthermore, it should be considered as a practical instrument for member states, taking into account the fact that it has already been reviewed twice.[131]
Over the duration of the council’s activity, it has tended towards taking a stronger position as a policy shaper for the Arctic region. For instance, the first binding Search and Rescue Agreement,[132] which plays critical role in the case of emergency occurrence in the Arctic area, has been negotiated under the council’s auspices. Under the agreement, each party has a designated area in the Arctic for which it has responsibility to arrange search and rescue responses.[133]
Another legally binding document, which was shaped under the auspices of AC is the Oil Pollution Agreement.[134] The agreement aims to protect the marine ecosystem from oil pollution, and improve cooperation between the parties on pollution preparedness and response.[135] Even though the agreement is an independent document and AC does not possess powers to enforce it, though the council played an important role of the negotiation forum where all participants negotiated the agreement.
- The Arctic Council Gaps
Despite the AC being the linchpin of Arctic governance, supremacy in the region primarily remains under discretion of the Arctic states’ national laws, international law, and bilateral and multilateral agreements. Consequently, the Council cannot impose legally binding obligations on its participants.[136]
Another gap is the concerns over the ability of the Council to consistently address offshore O&G governance. The aims of WG such as PAME andEPPR is to govern Oil spill prevention task force and Arctic Ocean Review (AOR) recommendations. Also, they are to stress oil spill prevention standards, and foster communication and greater interaction across organisations and convention. However, implementation of these practices can be challenging because WG tend to work autonomously and have separate funding. This consequently causes duplication in recommendations and addressing of O&G issues periodically. For instance, only for the period when the guidelines and assessment need to be updated.[137]
In conclusion, to make sure that WG address O&G issues more effectively, the group activities have to be more sector-specific. Perhaps an O&G sector group should be developed, instead of addressing those issues under PAME, as a part of Marine Sector.[138]
CHAPTER 3.LEGALLY BINDING APPROACHES IN ADDRESSING ENVIRONMENTAL REGULATORY GAPS OF THE O&G SECTOR IN THE ARCTIC
3.1. Introduction
As mentioned in the previous chapters, the current regulatory regime of the Arctic is well suited to circumstances of little or no activity in the region, and may be described as:‘unplanned institutional complex or collection of institutional arrangements applicable to the same region but not deliberately structured or integrated to form a coherent governance system’.[139]
However, there are opposing views on the adoption of a legally-binding regulation for the Arctic, claiming that the negotiated framework could be even weaker than current soft-law. Furthermore, a more formal structure of regulation could reduce flexibility of the current soft-law regime, thus slowing down the decision-making process.[140]
Despite the aforementioned concerns, the current soft-law arrangements in the Arctic, which govern the increasing O&G activities, in previously virgin areas, have created multiple regulatory gaps with the potential to lead to dramatic environmental issues. Additionally, despite the existence of many important treaties governing the Arctic region, the presence of powerful non-participant regional states such as Russia and US means that large swathes of the Arctic remain unregulated.[141] Consequently, the Arctic coastal states have to take great responsibility for the region, and proceed with the adoption of a legally binding regulation tailored to the unique ecological conditions of the Arctic, together with addressing the issue of its governance.
In this chapter, different legally binding approaches to addressing O&G activities in the Arctic on international and regional levels will be analysed in order to make sure that the most effective regime in protecting the fragile marine environment of the Arctic from O&G activities is employed. After the performed analysis, the author will propose that the Arctic Framework Treaty (ATF) should be adopted, under the auspices of AC, as the best legally binding option.
3.2. Addressing Environmental Regulatory Gaps in the Arctic Under the Auspices of the International and Regional Regulations
As already concluded, despite the soft law’s greater flexibility and ability to be introduced without long negotiation processes, thus avoiding sovereignty issues, it has advantages only in the limited regulatory areas and has severe shortcomings. For instance, it should not be applicable in areas where effective governance is required, because there will be no guarantees of compliance with such regulation.[142] Therefore, only legally binding approaches will be considered when determining the most suitable regulatory approach for the region.
3.2.1. Adopting Arctic Regulation Under UNCLOS Provisions
Given the ‘constitutional’ nature of UNCLOS and the fact that the Arctic is considered mostly as an ice-covered sea, there is no wonder why many scholars propose specific to the Arctic regulation, based on UNCLOS.[143] In accordance with UNCLOS, there is only one article, which directly addresses increasing activities in the Arctic. The Article encourages coastal states to develop stricter standards within the limits of their EEZ, where the ice cover stay for most of the year.[144]
However, the specific wording of the Article, ‘presence of ice covering most of the year’[145] has considerably limited its applicability. Due to fundamental changes in the Arctic weather conditions, resulting in shrinking of the ice cover, there are an increasing number of the areas in the region, which are free from ice all-year-round.[146] Additionally, the article applies only to oil tankers or vessels, to the exclusion of oil platforms and other O&G installations.[147]
Another regulatory approach of addressing the Arctic marine region can be employed in accordance with the Articles 122 and 123, encouraging the coastal states’ cooperation in order to negotiate a legal background to Arctic waters, taking into account that the Arctic waters to be considered as enclosed or semi-enclosed seas.[148] According to Article 122:
enclosed or semi-enclosed seas’ means a golf basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow or consisting entirely or primarily of the territorial seas and EEZ of two or more coastal states.[149]
However, due to the unclear wording of the article, it is unclear if the Arctic Ocean can be called enclosed or semi – enclosed sea, and as a consequence applicability of the articles to the Arctic region.[150] Even if the Arctic Ocean was qualified under the Article 122, the Article 123 does not provide direct obligations for the States to introduce regional cooperation, stating that they ‘should coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment’.[151] Consequently, the provisions encourage states to cooperate in order to protect marine environment rather than stipulates legal obligation to do so. Even if the coastal states negotiate a legal arrangement based on Article 122, the agreement will be limited to the territory of the Arctic States EEZ.
It might be also considered the implementation of the Arctic waters agreement under the Article 312 and 313 of UNCLOS by proposing the amendments to the Convention. In case of such a proposal, United Nations General Assembly (UNGA) negotiation processes will apply.[152] Taking into account the involvement of 193 members[153] of the General Assembly in this process, implementation of the Agreement is likely to be highly improbable. The Arctic States may be countered by opposing views of UNGA members in respect of the Arctic management. Consequently, it would be unsurprising if they feared that their sovereign rights and jurisdiction would be undermined during the negotiation process.[154]
In conclusion, it should be stressed that in the event of establishment of the Arctic regime under UNCLOS, specific measures will not be addressed because they are not provided under the convention. Also, because of UNGA negotiation process, it is hardly feasible to conclude the Arctic regional agreement under the UNCLOS.
3.2.2. Expansion of the Spatial Scope of the OSPAR Convention
It may be suggested that the OSPAR Convention is the shortest and the most efficient way of addressing the challenges of O&G activities in the Arctic. This can be done by adjusting the territorial scope of the convention and expanding its membership to all the Arctic coastal states.[155]
OSPAR provides a territorial adjustment procedure, which allows signatory parties to anonymously invite states to join the Convention. In the event of such a new member’s acceptance, the territory of the Convention shall be amended by the OSPAR Commission.[156]
Even though the procedure of the expansion of the territorial scope of the Convention is explicitly stated, an important question remains; will the other Arctic states – Russia, U.S. and Canada, who currently are non-members of OSPAR be willing to ratify the Convention and all related legally-binding decisions without substantial amendments.[157] Inability to comply with the convention could be the main reason why Russia is still not a signatory of OSPAR, taking into account that it is a part of the North-East Atlantics and does not require special invitation. The fact that none of the abovementioned countries has expressed the willingness to join the OSPAR illustrates that they have considerable concerns about the Convention’s provisions. This singular factor means that despite the convenience of such an approach, it is unlikely to be appropriate in the short term.
3.2.3. The Antarctic Treaty System
The Arctic and the Antarctic are two poles having seemingly little in common, apart from extreme weather conditions. There are different legal regimes, population and sovereignty issues, also geographically - the Antarctic is a continent, enclosed by oceans, contrastingly the Arctic – is an ocean, surrounded by continents.[158]
However, despite contrasting features, many scholars propose a legal system for the Arctic based on ATS,[159] which is known as a unique blueprint of international law, due to the strong focus on the environmental management of the region.[160] This is facilitated by pursuing peaceful purposes for the region, suspending sovereignty claims[161] and discouraging militarisation.[162] Letter, adopted under the ATS the Madrid Protocol,[163] was acclaimed ‘one of the most protective international agreements the world has seen’.[164]
The protocol is entirely devoted to environment protection, supplementing the Treaty and protecting the Antarctic Environment. To meet its objectives, the protocol imposes an obligation to perform EIA,[165] establishes marine protected areas,[166] addresses waste disposal and management,[167] and also prohibits any activity related to the resource development other than for scientific research.[168]
Evidently, the environmental provisions introduced by the protocol, together with sustainable and precautionary principles of the other conventions[169] under the umbrella of the ATS, could build up environment protection treaty for the Arctic. However, provisions imposing a moratorium on mining, prohibitions against sovereign territory claims and proposing only peaceful activities are not feasible for the Arctic region presently and in the near future.
[...]
[1] Odd Gunnar Skagestad, The ‘High North’ an Elastic Concept in Norwegian Arctic Policy (Report, Fridtjof Nansen Institute October 2010) 3
[2] The U.S. Geological Survey, Circum-Arctic Resource Appraisal, Estimates of Undiscovered Oil and Gas North of the Arctic Circle (2008) 3049
[3] TimoKoivurova, KamrulHossain, ‘Hydrocarbon Development in the Offshore Arctic: Can it be Done Sustainably?’ (2012) 10(2) OGEL <http://www.ogel.org/article.asp?key=3258> accessed 1 June 2014
[4] Gus Cammaert, ‘Meeting Arctic Exploration, Production Challenges’ [2008] E&P 81
[5] Patrick Lewis, ‘On the Horizon of Arctic Oil’ [2010] The Circle 3, 3
[6] TimoKoivurova, KamrulHossain, ‘Hydrocarbon Development in the Offshore Arctic: Can it be done Sustainably?’ (2012) 10(2) OGEL <http://www.ogel.org/article.asp?key=3258> accessed 1June 2014
[7] Jessica Tippee, ‘Arctic E&P Activity Heats Up’ [2012] Offshore May Issue, 56
[8] WWF, ‘Arctic Overview’ ( July 2014) <http://www.worldwildlife.org/places/arctic> accessed 24 August 2014
[9] Karl Mathiesen, ‘Drilling in the Arctic - What is the Environmental Impact?’ The Guardian ( London, October 2013) <http://www.theguardian.com/environment/2013/oct/02/drilling-arctic-environmental-impact-greenpeace-piracy> accessed 4 September 2014
[10] TimoKoivurova, KamrulHossain, ‘Hydrocarbon Development in the Offshore Arctic: Can it be done Sustainably?’ (2012) 10(2) OGEL <http://www.ogel.org/article.asp?key=3258> accessed 1June 2014
[11] WWF, Drilling for Oil in the Arctic: Too Soon, Too Risky (Report, 2010) 11
[12] James Cowling, ‘Arctic Oil Exploration: Potential Riches and Problems’ BBC ( London, August 2011) <http://www.bbc.co.uk/news/business-14728856> accessed 3 September 2014
[13] Exxon Valdez Oil Spill Trustee Council , ‘Oil Spill Facts’ (2011) <http://www.evostc.state.ak.us/index.cfm?FA=facts.QA> accessed 5 September 2014
[14] Rick Steiner, ‘Risk to Arctic Eco-System’ [2010] The Circle 3, 16
[15] TimoKoivurova, KamrulHossain, ‘Hydrocarbon Development in the Offshore Arctic: Can it be done Sustainably?’ (2012) 10(2) OGEL <http://www.ogel.org/article.asp?key=3258> accessed 1June 2014
[16] Dan Slavik, ‘Beaufort Sea Community Tour: Sharing the Results’ (WWF, August 2014) <http://blog.wwf.ca/blog/2014/08/12/beaufort-sea-community-tour-sharing-results-exploring-risks/> accessed 21 September 2014
[17] Jeff Goodyear, Ben Beach, Environmental Risks with Proposed Offshore Oil and Gas Development off Alaska’s North Slope (Issue Paper, The Natural Resource Defense Council, August 2012)8
[18] Charles Ebinger, John P. Banks, Alisa Schackmann, Offshore Oil and Gas Governance in the Arctic. A Lidership Role for the U.S. (Policy Brief, the Energy Security Initiative, March 2014)22, 26
[19] Michael Byers, ‘International Law and the Arctic’ [2014] E.J.I.L. 349
[20] The Ilulissat Declaration, Greenland 2008
[21] The Ilulissat Declaration, Greenland 2008
[22] Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean. Signed on 17 June 2010 and accepted on 22 June 2010
[23] Arild Moe, ‘Russian and Norwegian Petroleum Strategies in the Barents Sea’ [2010] Artic Review on Law and Policies 1,2/2010, 236
[24] Article 207 of UNCLOS 1982
[25] TimoKoivurova, ‘Alternatives for the Antarctic Treaty – Evaluation and a New Proposal’ [2008] RECIEL 17 (1), 26
[26] TimoKoivurova, Erik J. Molenaar , Overview and Gap Analysis (Report for WWF, 2009) 43
[27] Linda Nowlan, Arctic Legal Regime for Environmental Protection (IUCN Environmental Policy and Law Paper No.44, 2001) ix
[28] Antarctic Treaty 1959
[29] Kristin Noelle Casper, ‘Oil and Gas Development in the Arctic: Softening of the Ice Demands Hardening of the International Law’ [2009] Natural Resources Journal 49, 876
[30] Olav SchramStokke, ‘A Legal Regime for the Arctic? Interplay with the Law of the Sea Convention' [2007] Marine Policy 31, 402-408
[31] TimoKoivurova, ‘Gaps in International Regulatory Frameworks for the Arctic Ocean’ in Paul Arthur Berkman and Alexander N. Vylegzhanin (eds), Environmental Security in the Arctic Ocean (NATO 2010) 139
[32] Charles Ebinger, John P. Banks, Alisa Schackmann, Offshore Oil and Gas Governance in the Arctic. A Lidership Role for the U.S. (Policy Brief, the Energy Security Initiative, March 2014) xii
[33] Ibid 38
[34] Mikhail Kashbsky, ‘Marine Pollution from the Offshore Oil and Gas Industry: Review of Major Conventions and Russian Law (Part II)’ [2007] Marine Studies Jan-Feb 2, 11-12
[35] Carol Dinkins, Margaret E. Peloso, Hana V. Vizcarra, ‘The Potential Effect of Environmental Regulations, Citizen Suits on the Costs of Doing Business in the Arctic: A Comparison of U.S. and Norwegian Approaches’ (2012) 10 (2) OGEL <http://www.ogel.org/article.asp?key=3261> accessed 1 June 2014
[36] Arild Moe, ‘Russian and Norwegian Petroleum Strategies in the Barents Sea’ [2010] Artic Review on Law and Policies 1,2/2010, 225
[37] Charles Ebinger, John P. Banks, Alisa Schackmann, Offshore Oil and Gas Governance in the Arctic. A Lidership Role for the U.S. (Policy Brief, The Energy Security Initiative, March 2014) 21
[38] Ibid 34
[39] The Ilulissat Declaration 2008
[40] Linda Nolan, Arctic Regime for Environmental Protection (Report, IUCN Environmental Law Centre 2001) 5
[41] SusanahStoessel, Elizabeth Tedsen, Sandra Cavalieri and Arne Riedel, ’Environmental Governance in the Marine Arctic’ in Elizabeth Tedsen (ed), Arctic Marine Governance: Opportunities for Transatlantic Cooperation (Springer 2014) 47
[42] Adopted from Steve Walker and Jan de Jong, ‘The Involvement of IRF in Setting Standards and Best Practices,’ International Regulators Forum, Summit Conference, Stavanger, Norway, 4/5 October 2011
[43] Agreement for the Implementation of Part XI of the United Nation Convention of the Law of the Sea of 10 December 1982, adopted on 28 July 1994, and entered into force on 28 July 1996 Agreement for the Implementation of the Provision of the United Nation Convention of the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, adopted on 4 August 1995, and entered into force on 11 December 2001
[44] Raphael Bille, Lucien Chabson, Petra Drankier and others, Regional Ocean Governance (White Paper, United Nations Governmental Programme, July 2014) 23
[45] In accordance with the Part XI, Part XII and Articles 209 and 215 the offshore O&G activities have to be performed in accordance with the relevant provisions of the Convention
[46] OnodotimiSongi, ‘Current Legal Regime Governing the Arctic Region and Investment by Oil and Gas Companies’ (2011) 9 (1) OGEL <http://www.ogel.org/about-author-a-z-profile.asp?key=1812> accessed 9 July 2014
[47] The Ilulissat Declaration 2008
[48] Articles 76 (8) of UNCLOS
[49] Article 56(1) of UNCLOS
[50] So far, Russia, Norway and Denmark claimed the extension of the outer continental shelf within the Arctic region. (Oceans and Law of the Sea,‘Submissions, through the Secretary-General of the United Nations, to the Commission on the Limits of the Continental Shelf, Pursuit to the Article 76, p8 of the UNCLOS 1982’ (8th July 2014) <http://www.un.org/depts/los/clcs_new/commission_submissions.htm> accessed 10 July 2014)
[51] ‘Creeping jurisdiction occurs when gradual extension of outer continental shelf take place, causing slow increase of the State jurisdiction offshore in the law of the sea through the course of the Twentieth Century’ (John A. Knauss, ‘Creeping Jurisdiction and Customary International Law’ [1985] Ocean Development and International Law 15, 209)
[52] Olav SchramStokke, ‘Environmental Security in the Arctic’ [2011] International Journal, Autumn Issue, 840
[53] Articles 142 (3), 145, 147 of UNCLOS 1982
[54] Article 194 of UNCLOS 1982
[55] Articles 197-201 of UNCLOS 1982
[56] Article 194(1) UNCLOS 1982
[57] Article 194(1) UNCLOS 1982
[58] Article 234 of UNCLOS 1982
[59] Section 68 of Arctic Waters Pollution Prevention Act 1970
[60] TimoKoivurova, Erik J Molenaar, International Governance and Regulation of the Marine Arctic. Overview and Gap Analysis (Report for WWF,2009) 49
[61] Article 208(3) of UNCLOS 1982
[62] Articles 192, 194 - 197, 204 – 206 of the UNCLOS 1982
[63] TimoKoivurova, Erik J Molenaar, International Governance and Regulation of the Marine Arctic. Overview and Gap Analysis (Report, WWF, 2009) 49
[64] Part XV of UNCLOS 1982
[65] Marta Kolcz-Ryan, ‘An Artic Race: How the United States’ Failure to Ratify the Law of the Sea Convention Could Adversely Affect its Interests in the Arctic’ [2009] University of Dayton Law Review 35.1
[66] The convention was signed on 17 February 1973 and was modified by the Protocol of 1978 under International Maritime Organisation. The Convention entered into force on 2 October 1983 (Source: IMO, ‘Pollution Prevention’ <http://www.imo.org/OurWork/Environment/PollutionPrevention/Pages/Default.aspx> accessed 6 January 2014)
[67] IMO, ‘History of MARPOL’ <http://www.imo.org/KnowledgeCentre/ReferencesAndArchives/HistoryofMARPOL/Pages/default.aspx> accessed 7 July 2014
[68] Donald R. Rothwell, ‘Global Environment Protection Instruments’ in Davor Vida (eds), Protecting the Polar Marine Environment – Law and Policy for Pollution Prevention (Cambridge University Press 2000) 60
[69] Article 21 of Annex I of MARPOL 73/78
[70] Article 2 (3)(a) of MARPOL 73/78
[71] TimoKoivurova, KamrulHossain, ‘Hydrocarbon Development in the Offshore Arctic: Can it be Done Sustainably?’ (2012) 10(2) OGEL <http://www.ogel.org/article.asp?key=3258> accessed 1June 2014
[72] Article 2(4) of MARPOL 73/78
[73] Article 21 of Annex 1 of MARPOL 73/78
[74] Mediterranean Sea, Baltic Sea, Black Sea, Red Sea, “Gulfs” area, Gulf of Aden, Antarctic area, North West European waters, Oman area of the Arabian Sea, Southern African waters.
[75] Article 1 of Annex I of MARPOL 73/78
[76] Article 37 of Annex I of MARPOL 73/78
[77] PAME, The Arctic Ocean Review Project (Final Report, May 2013) 58
[78] SusanahStoessel, Elizabeth Tedsen, Sandra Cavalieri, Arne Riedel, ’Environmental Governance in the Marine Arctic’ in Elizabeth Tedsen (eds), Arctic Marine Governance: Opportunities for Transatlantic Cooperation (Springer 2014) 51
[79] Charles Ebinger, John P. Banks, Alisa Schackmann, Offshore Oil and Gas Governance in the Arctic. A Lidership Role for the U.S. (Policy Brief, the Energy Security Initiative, March 2014) 26
[80] Tankers, Big Oil and Pollution Liability, ‘International Convention on Oil Pollution Preparedness Response and Co-operation’ <http://www.oilpollutionliability.com/international-convention-on-oil-pollution-prepardness-response-ans-co-operation-oprc> accesses 19 July 2014
[81] Article 2 of OPRC 1990
[82] IMO, Status of Multilateral Conventions and Instruments in Respect of Which the International Maritime Organization or its Secretary-General Performs Depositary or Other Functions (Report, 28 July 2014) 464
[83] Article 1 of OPRC 1990
[84] Article 7 of the OPRC 1990
[85] TimoKoivurova, KamrulHossain, ‘Hydrocarbon Development in the Offshore Arctic: Can it be Done Sustainably?’ (2012) 10(2) OGEL <http://www.ogel.org/article.asp?key=3258> accessed 1 June 2014
[86] The full list of prohibited to dump wastes listed in Annex I London Convention 1972
[87] Article 1 of London Convention 1972
[88] Article 3 of London Convention 1972
[89] Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972
[90] IMO, ‘Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter’ (2014) <http://www.imo.org/About/Conventions/ListOfConventions/Pages/Convention-on-the-Prevention-of-Marine-Pollution-by-Dumping-of-Wastes-and-Other-Matter.aspx> accessed 20 July 2014
[91] PAME, The Arctic Ocean Review Project (Final Report, May 2013) 59
[92] The dissenters are Finland, U.S. and Russia
[93] IMO, ‘Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter’ (2014) <http://www.imo.org/About/Conventions/ListOfConventions/Pages/Convention-on-the-Prevention-of-Marine-Pollution-by-Dumping-of-Wastes-and-Other-Matter.aspx> accessed 20 July 2014
[94] The Convention was concluded in Paris on 22 September 1992 and came into the force on 25th March 1998
[95] Denmark, Finland, Norway, Sweden, Iceland
[96] Erik J. Molenar, Alex G. Oude, Donald R. Rothwell, The Law of the Sea and the Polar Regions: Interactions Between Global and Regional Regimes (Brill Nijhoff, 2013) 53
[97] United Nations Environmental Programme, Global International Waters Assessment. Russia Arctic (University of Kalmar, 2005) vol. 1, 81
[98] Article 2 of OSPAR Convention 1992
[99] Annex I of OSPAR Convention 1992
[100] Annex III of OSPAR Convention 1992
[101] Annex II of OSPAR Convention 1992
[102] Encyclopaedia of Arctic (Taylor&Francis, 2005) vol 2, 435
[103] OSPAR Commission, Strategies for the Protection of the Marine Environment of the North-East Atlantic (Agreement 2003-21, March 2003)10
[104] "Offshore activities - means activities carried out in the maritime area for the purposes of the exploration, appraisal or exploitation of liquid and gaseous hydrocarbons” Article 1(j) of OSPAR Convention 1992
[105] "Offshore sources - means offshore installations and offshore pipelines from which substances or energy reach the maritime area” Article 1(k) of OSPAR Convention 1992
[106] "Offshore installation means any man-made structure, plant or vessel or parts thereof, whether floating or fixed to the seabed, placed within the maritime area for the purpose of offshore activities” Article 1(l) of OSPAR Convention 1992
[107] OSPAR Commission, OSPAR Network of Marine Protected Areas (Status Report, 2012) 19
[108] TimoKoivurova, Erik J Molenaar, International Governance and Regulation of the Marine Arctic. Overview and Gap Analysis (Report for WWF 2009) 22
[109] Article 2 of OSPAR Convention 1992
[110] Article 2 (2)(a) of OSPAR Convention 1992
[111] Article 2 (2)(b) of OSPAR Convention 1992
[112] Annex I of OSPAR Convention 1992
[113] Article 6 of OSPAR Convention 1992
[114] Article 5 of Annex II of OSPAR Convention1992
[115] OSPAR Commission,‘Quality Status Report 2010’ <http://qsr2010.ospar.org/en/index.html> accessed 5 July 2014
[116] OSPAR Commission, ‘Quality Status Report 2010, Key findings’ <http://qsr2010.ospar.org/en/index.html> accessed 5 July 2014
[117] Annex V of OSPAR Convention 1992
[118] TimoKoivurova, KamrulHossain, ‘Hydrocarbon Development in the Offshore Arctic: Can it be Done Sustainably?’ (2012) 10(2) OGEL <http://www.ogel.org/article.asp?key=3258> accessed 1June 2014
[119] TimoKoivurova, Erik J Molenaar, International Governance and Regulation of the Marine Arctic. Overview and Gap Analysis (Report for WWF, 2009) 21
[120] The Declaration on the Establishment of the Arctic Council 1996
[121] Arctic Council, ‘History’ (April 2011) <http://www.arctic-council.org/index.php/en/about-us/arctic-council/history> accessed 20 September 2014
[122] Norway, Russia, U.S., Canada, Denmark, Island, Sweden, Finland
[123] Helga Haftendorn, ‘The Case for Arctic Governance: The Arctic Puzzle’ [2013] Institute of International Affairs The Centre for Arctic Studies 19
[124] TimoKoivurova, Erik J Molenaar, International Governance and Regulation of the Marine Arctic. Overview and Gap Analysis (Report for WWF, 2009) 43
[125] PAME – addresses policy and non–emergency response measures related to protection of the marine environment from land sea-based activities
[126] EPPR – provide a framework for co-operation in responding to the threat of environment emergencies, act as an experts forum to evaluate the adequacy of existing arrangements and to recommend a system of cooperation
[127] AMAP – The first operational group to become operational under the AEPS. The group provide reliable and sufficient information on the status of and threats to the Arctic environment, and providing scientific advice on actions to be taken in order to support Arctic governments in their efforts to take remedial and preventive actions relating to contaminants
[128] Arctic Council, Senior Arctic Officials (Report to Ministers, 2011) 6
[129] PAME, Arctic Offshore Oil and Gas Guidelines (Final Draft, 2009) 5-6
[130] Michael Byaers, International Law and the Arctic (Cambridge University Press 2013) 189
[131] TimoKoivurova, KamrulHossain, ‘Hydrocarbon Development in the Offshore Arctic: Can it be Done Sustainably?’ (2012) 10(2) OGEL <http://www.ogel.org/article.asp?key=3258> accessed 1June 2014
[132] Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic 2011
[133] Annex of the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic 2011
[134] Agreement on Cooperation on Marine Oil Pollution Preparedness in the Arctic 2013
[135] Article 1 of Agreement on Cooperation on Marine Oil Pollution Preparedness in the Arctic 2013
[136] SusanahStoessel, Elizabeth Tedsen, Sandra Cavalieri and Arne Riedel, ’Environmental Governance in the Marine Arctic’ in Elizabeth Tedsen (eds), Arctic Marine Governance: Opportunities for Transatlantic Cooperation (Springer 2014) 62
[137] Charles Ebinger, John P. Banks, Alisa Schackmann, Offshore Oil and Gas Governance in the Arctic. A Lidership Role for the U.S. (Policy Brief, The Energy Security Initiative, March 2014) 44
[138] Paula Kankaanpää, Oran R. Young, ‘The effectiveness of the Arctic Council’ [2012] Arctic Centre Polar research Publications 31
[139] Oran R. Young, Arctic Governance: Preparing for the Next Phase (Report, Institute of Arctic Studies, June 2002) 5
[140] Charles Ebinger, John P. Banks, Alisa Schackmann, Offshore Oil and Gas Governance in the Arctic. A Lidership Role for the U.S. (Policy Brief, the Energy Security Initiative, March 2014) xii
[141] Hans H. Hertell, ‘Arctic Melt: The Tipping Point for an Arctic Treaty’ [2009] Georgetown International Law Review 21,586
[142] DarshiniWaibel, ‘Does the Current Legal Regime Governing the Arctic Provide an Adequate Basis for Investment by Oil and Gas Companies or an Approximate Framework for Oil and Gas Exploration in This Sensitive Region?’ (2011) 9(1) OGEL <http://www.ogel.org/article.asp?key=3181> accessed 2 August 2014
[143] TimoKoivurova, ‘Alternatives for an Arctic Treaty – Evaluation and a New Proposal’ [2008] RECIEL 17 (1) 19
[144] Article 234 of UNCLOS 1982
[145] Article 234 of UNCLOS 1982
[146] Rosemary Rayfuse, ‘Melting Moments: The Future of Polar Oceans Governance in a Warming World’ [2007] RECIEL 16 (2) 199
[147] Rob Huebert, ‘Article 234 and Marine Pollution Jurisdiction in the Arctic’ in Alex G. Oude Elferink and Donald R. Rothwell (eds), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (Kluwer Law International 2009) 249
[148] TimoKoivurova, Erik J. Molenaar, Options for Addressing Identified Gaps (Report for WWF, 2009) 67
[149] Article 122 of UNCLOS 1982
[150] Kristin Noelle Casper, ‘Oil and Gas Development in the Arctic: Softening of the Ice Demands Hardening of the International Law’ [2009] Natural Resources Journal 49, 845
[151] Article 123(b) of UNCLOS 1982
[152] Article 314 of UNCLOS 1982
[153] United Nations, ‘Current Session (68th)’ ( July 2014) <http://www.un.org/en/ga/> 24 August 2014
[154] TimoKoivurova, Erik J. Molenaar, Options for Addressing Identified Gaps (Report for WWF, 2009) 86
[155] Kristin Noelle Casper, ‘Oil and Gas Development in the Arctic: Softening of the Ice Demands Hardening of the International Law’ [2009] Natural Resources Journal 49, 869
[156] Article 27(2) of OSPAR Convention 1992
[157] TimoKoivurova, Erik J. Molenaar, Options for Addressing Identified Gaps (Report for WWF, 2009) 81
[158] Linda Nowlan, Arctic Legal Regime for Environmental Protection (IUCN Environmental Policy and Law Paper No.44, 2001) ix
[159] The Antarctic Treaty signed in 1959 in Washington and entered into force in 1961. The total number of Parties to the Treaty is now 50. (Secretariat of the Antarctic Treaty, ‘The Antarctic Treaty’ <http://www.ats.aq/e/ats.htm> accessed 25 August 2014)
[160] Initially the Antarctic Treaty was not designed to protect the environment, but gradually evolved in that direction since the Antarctic Treaty has been signed. When the Madrid Protocol came into force, the shift towards the environmental protection was complete (Linda Nowlan, Arctic Legal Regime for Environmental Protection (IUCN Environmental Policy and Law Paper No.44, 2001)41)
[161] Article IV of the Antarctic Treaty 1959
[162] Article I of the Antarctic Treaty 1959
[163] Madrid Protocol on Environmental Protection to the Antarctic Treaty 1991
[164] David Hunter, James Salzman, DurwoodZaelke, International Environmental Law and Policy (Foundation Press 2007) 1088
[165] Article I of Annex I of Protocol on Environmental Protection to the Arctic Treaty 1991
[166] Annex V of Protocol on Environmental Protection to the Arctic Treaty 1991
[167] Annex III of Protocol on Environmental Protection to the Arctic Treaty 1991
[168] Article 7 of Protocol on Environmental Protection to the Arctic Treaty 1991
[169] The Convention for the Conservation of Antarctica Seals 1972, The Convention on the Conservation of Antarctic marine Living Resources 1982
- Arbeit zitieren
- Joanna Grigorjeva (Autor:in), 2014, Addressing Regulatory Gaps in Relation to the Environmental Issues Arising from Offshore Oil and Gas Activities in the Arctic, München, GRIN Verlag, https://www.grin.com/document/337756
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