Law of Sea Implications for Gulf Spill

The expanding environmental and economic toll of the Gulf of Mexico oil spill could focus attention on the need to clarify the rules for dealing with pollution that exceeds territorial boundaries. Caitlyn Antrim, an expert on ocean governance, says the Law of the Sea Treaty covers many of the issues raised by the spill, and even though the United States has not acceded to the treaty, it has agreed to abide by it. But she says many of the guidelines required by the treaty, which are necessary to address the liability and pollution issues among affected countries for this type of spill, have not been written. She notes that the Gulf oil spill should be used as an opportunity to craft regional standards for oil and gas exploration. "Given the possibility that [these activities] could not only occur in the U.S. shelf, but on the shelves of our neighboring countries, it seems like this should be a call for us to engage in that negotiation of standards, both with regards to the Gulf of Mexico and with regard to the Arctic, which are the two areas that have the greatest potential for offshore oil and gas development," she said.

You’ve written about how the Law of the Sea Treaty would apply to the oil spill in the Gulf of Mexico. Can you discuss the major issues in this case?

The international law for activities of the ocean that might engender marine environmental pollution are covered under Part 12 of the Law of the Sea Convention and this respects the major divisions of national authority that are implicit in the various zones of authority. Within the territorial sea, the coastal state has complete sovereignty within the two-hundred-mile exclusive economic zone. The state has responsibility over marine living resources and activities on the deep seabed and activities beyond two hundred miles that are still part of the extended continental shelf fall under the regulatory activity of the coastal state.

So all these activities that we’re talking about now do fall under coastal state control, in this case the United States. Even though the United States is not party to the convention, since President Reagan, we have said we will abide by the rules that fall there. So it is something that is important to the United States to understand and observe.

How might the Law of the Sea’s liability provisions apply in this case?

In the 1970s, we were very aware of the dangers of environmental pollution from ships. It was of particular concern to us because we depend so much on the import of oil that freedom of navigation was one of our important objectives in the convention and we had to find a way to balance it with controls over marine environmental pollution. The rules that govern responsibility and liability for pollution from vessels are much more detailed than those that deal with environmental pollution from land or from operations within the exclusive economic zone and continental shelf.

Pollution from the BP well in the Gulf would be subject to bilateral diplomacy between the U.S. and Cuba, between the U.S. and Mexico. It would be up to the United States to decide what needs to be done, and to work out bilaterally any responsibilities, say if oil started coming up on Cuban shores or, in the case of when the oil spill was in Mexican waters.

The convention provides a framework for dealing with environmental pollution, but it doesn’t set the rules and it calls for those to be negotiated bilaterally, regionally, or globally. And that’s where it stands now. For the most part, we have not yet negotiated those international treaties and conventions to deal with this issue.

This past weekend at the G8/G20 meeting in Canada, Russian President Dmitry Medvedev called for new international rules for offshore drilling that would address this type of accident. What is deficient in current international treaties that would make these new rules necessary?

What is deficient is a binding set, or even a satisfactory set of guidelines for behavior and operation of offshore activities. It could be particularly important in the Arctic, where Russia and Norway have been engaging in offshore oil and gas development and where the U.S. has been engaging in near-shore [development] and looking at deeper-water exploration.

While we have, through the International Maritime Organization, a set of guidelines regarding the design of shipping to pass through the Arctic, we have no guidelines that can be used for all countries [that say] these are the minimum standards by which offshore oil and gas will be conducted. And without those standards, the Law of the Sea Convention has very little actual impact on reducing the chance of environmental pollution from activities on the continental shelf.

With Russia’s focus on the Arctic, it provides excellent opportunity for the United States, Russia, Canada, Norway, and Greenland to set up those rules and possibly to involve, through the Arctic Council, to involve the native people organizations of the Arctic in a comprehensive regional look at how to set standards for governing the development of offshore oil and gas.

Can you talk a little more about the environmental and legal implications for exploring in the Arctic? There just seems to be a number of unanticipated consequences from the melting of the ice cap.

The melting of the ice cap provides access for development and, in particular, the development of oil and gas offshore and the passage of shipping along the coast of Russia and the United States and through the Northeast and Northwest Passages. From the pollution standpoint, oil and gas is, at least in the near term, probably the major environmental consideration [in the Arctic]. We have guidelines on ship design and other regulations that establish international norms with regard to marine environmental pollution and we have rules regarding the enforcement by flag states, port states and coastal states. On oil and gas development, it’s less so.

In the cold waters of the Arctic, it’s very hard to predict what a spill would do. Working in waters that are near the freezing point, a great depth, and having possible surface temperatures far below freezing makes a challenge for cleanup that would be much more difficult than in the warm waters of the Gulf, and would be one that we are currently ill prepared to deal with. So avoiding a spill becomes more important in the Arctic. It really does need that set of standards and constant monitoring and enforcement of standards by the national governments to be sure that we can avoid a spill. Or if one does take place that response comes very quickly.

For Russia’s offshore reservoirs, many of them extend under land or under shallower water and they have a broad shelf, so they may be drilling in many cases at six hundred meters. For the U.S. and Canada, you may be hitting much deeper water. So, the techniques and the problems that are faced will vary from country to country. But it’s a good time to come together and regionally define the regime for activities of exploitation of continental shelf, so that all countries know ahead of time what’s expected of them. So that investors know what’s expected of them and they know what the rules are and that they’ll be carefully enforced.

A problem with the Gulf is that we had rules that weren’t always enforced, weren’t always monitored, and it leaves companies with a sense of, ‘where do we put our priority?’

Is the Law of the Sea Treaty enough of a mechanism for governing mineral exploitation of the seabed?

The Law of the Sea Convention makes it clear that the national governments are responsible both for issuing their national laws and for negotiating international guidelines and standards [for their continental shelf]. But there is no penalty for not doing that. It’s a responsibility, but you can’t take the United States to court internationally for having not done this. But given the possibility that [these activities] could not only occur in the U.S. shelf, but on the shelves of our neighboring countries, it seems like this should be a call for us to engage in that negotiation of standards, both with regards to the Gulf of Mexico and with regard to the Arctic, which are the two areas that have the greatest potential for offshore oil and gas development and which we have neighbors who could engage in activities themselves.

What are the chances of the Law of the Sea being ratified by Congress? And what obstacles remain?

There is sufficient support in the Senate to approve the Law of the Sea Convention once it goes to the floor of the Senate. However, its prospects depend upon priorities in the Senate that are determined by the Majority Leader with strong input from the president. The [Senate] majority leader and the chairman and ranking member of the Foreign Relations Committee have indicated their support, provided that President Obama gives it his support and priority as well.

If the president asks the majority leader to make approval of the convention a high priority for the current Congress and asks both Democratic and Republican supporters inside and outside the Senate to work together for approval, then it will be done, taking into account other high priority legislation and the politics of the midterm primaries and election. On the other hand, if the president fails to make this request, nothing will happen.