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Transboundary Pollu.on from Offshore Ac.vi.es: a study of the Montara offshore oil spill
Transboundary Pollu.on: Evolving Issues of Law and Policy Session 4 – Transboundary Pollu.on of the Marine Environment
Singapore, 27-‐28 February 2014 Youna Lyons
Senior Research Fellow, Centre for Interna5onal Law
I. The Montara Incident: Geography
Courtesy of Dylan Mair from IHS, prepared specially for this conference
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I. The Montara Incident: Geography
Rela.ve surface oil exposure map represen.ng all known es.mated occurrences of visible surface oil associated with the Montara incident. (Extract from the Report of the Commission of Inquiry)
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-‐ 21 Aug.-‐ 3rd Nov. 2009: 74 days -‐ Main Operator: PTTEP-‐AA, an Australian
subsidiary of the Thai na.onal oil company PTTEP
-‐ Suspension of the well was authorized by the NTDoNR despite doub_ul integrity
-‐ Blowout just aber opera.ons resumed; 69 workers evacuated
-‐ New drilling rig needed to drill a relief well and plug the leak; it came from Batam (Indonesia)
-‐ Relief opera.ons started on 14 September
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(3/5) I. The Montara Incident: Circumstances
-‐ 3rd largest spill in Australia -‐ 4,750 to 10,000 tonnes of oil, eq. to a medium to small size shipping spill
-‐ This large scale and transboundary pollu.on from offshore ac.vi.es in a remote loca.on came as a surprise
-‐ Extensive review by the Montara Commission of Inquiry of the causes of the incident, the suitability of the regulatory framework and response opera.ons
-‐ Reviews and submissions are on the internet
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(4/5) I. The Montara Incident: Circumstances
-‐ PTEEP-‐AA recognized its responsibility for the incident before an Australian Court
-‐ Through its re-‐organiza.on of the purview of offshore ac.vi.es, Australia also recognized and fixed iden.fied gaps and deficiencies
In the mean.me, -‐ Indonesia claims US$2.4bi as damages which includes damage to seaweed farming, the pearl industry, to fisheries, as well as ecological damage to coral reefs
-‐ PTTEP-‐AA and Australia respond that there is no verifiable, valid scien.fic evidence to Indonesia’s claims
-‐ But Australia is pursuing research with Indonesia to document the prejudice suffered by Indonesia
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(5/5) I. The Montara Incident: current situa.on
II. Possible paths to remedies: Under na.onal law before na.onal courts
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- Private par.es (marine resource users vs. PTTEP-‐AA under Australian law
- Private par.es vs. Australia’s Administra.ve Agencies in charge deemed to have failed under Australian law
- Ac.ons against PTTEP-‐AA’s employees against the company or other contractual claims
- Australian Administra.ve Agencies vs. PTTEP-‐AA to recover the costs incurred (MoU under nego.a.on)
In Australia
In Indonesia
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- Private par.es vs. PTTEP-‐AA, assuming that jurisdic.on can be established, remedies exist under Indonesia law and enforcement of the decision is possible
- Private par.es against Indonesian authori.es for corrup.on
II. Possible paths to remedies: Under interna.onal law
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- This involves respec.ve rights and du.es between States and presupposes a breach of interna.onal obliga.ons
- Several interna.onal conven.ons deals with accidental pollu.on from oil spill: 1990 OPRC for preparedness and response, 1969 CLC, 1992 Fund, 2001 Bunker Conven.on
- Only OPRC applies to accidental pollu.on from offshore pla_orms - There is no interna.onal compensa.on mechanism in place for pollu.on from offshore pla_orms
- So no regime to ensure that the vic.ms of the Montara spill are compensated
- Following slides look at the applica.on of the current regime to the Montara Spill
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II. Possible paths to remedies: Under interna.onal law
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- There is no interna.onal compensa.on mechanism in place for pollu.on from offshore pla_orms
- So no regime to ensure that the vic.ms of the Montara spill are compensated
- Following slides look at the applica.on of the current regime, namely the 1990 Conven.on on Oil Spill Preparedness and Response (OPRC) to the Montara Spill
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III. Oil Spill Preparedness under Int’l Law: OPRC
Applica.on between Australia and Indonesia
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- Indonesia is not a party to OPRC - So pursuant to treaty law, Indonesia should be barred from relying on it against Australia
- However ar.cle 208 UNCLOS requires that States take measures to prevent and control pollu.on from seabed ac.vi.es that are less effec.ve than interna.onal rules, standards and recommended prac.ces and procedures
- If OPRC qualifies - Standards set by OPRC can deemed as incorporated by reference and arguably applicable between Indonesia and Australia
- Furthermore, OPRC is common sense applica.on of general principles
III. Oil Spill Preparedness under Int’l Law: OPRC
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1. Operators of offshore units must have pollu.on emergency plans 2. Na.onal system in place for prompt and effec.ve response including detailed plans and communica.on capabili.es and coordina.on arrangements
3. Oil combaing equipment available : minimum level of pre-‐posi.oned equipment commensurate to the risk, Programme for use, exercise and training
4. Commitment to endeavour to conclude bilateral or mul.lateral agreements for oil spill preparedness and response
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1. The pla_orm West Atlas might have had a wriken emergency plan but they seemed to have no func.oning oil combaing equipment on board
2. The Australia’s Na.onal Plan for oil spill response was in place
3. Dispersants and other resources flown from Darwin, Geelong (Victoria), Singapore and Batam (Indonesia)
Immediate availability is debatable but was it not commensurate to the risk based on the record of large scale remote spills from offshore pla_orms?
III. Oil Spill Preparedness : Applica.on to the Montara spill (3/4)
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4. 1996 MoU on oil pollu.on preparedness and response men.oned in many official documents although it is not disclosed and implementa.on is not detailed
NO Specific obliga.on for coopera.on and consulta.on in oil spill preparedness where there is a risk of a transboundary spill.
The Land reclama.on case found that there is a duty to cooperate on ac.vi.es that may cause transboundary pollu.on.
Does oil produc.on 50nm from a mari.me boundary creates such a risk of transboundary spill?
III. Oil Spill Preparedness : Applica.on to the Montara spill (4/4)
IV. Oil Spill Response under Int’l Law: OPRC
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1. Polluter pays principle is recalled in the preamble
2. Par.es must adopt oil pollu.on repor.ng procedures
3. Pollu.ng State must assess the nature, extent and possible consequences of oil pollu.on and share this informa.on and the ac.on taken
4. Par.es must cooperate, provide advisory services, technical support and equipment
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IV. Oil Spill Response: Applica.on to Montara oil spill
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- No.fica.on of transboundary nature of the spill on 1 Sept. 2009.
- AMSA as Combat Agency under the Na.onal Plan organized an Incident coordina.on group with representa.ves from various Australian government agencies (not Indonesia)
- Australia says that Indonesian officials visited Darwin on 30 Sept to 2 Oct. to observe response to the spill but Indonesia says Australia failed to fulfill its interna.onal obliga.ons of coopera.on.
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-‐ Response strategy seems to have been based primarily on Australia’s resources: were suitable coordina.on and consulta.on mechanisms in place to make the consulta.on of Indonesia possible?
-‐ Monitoring of environmental impacts started mid-‐October due to late agreement on the scope with PTTEP and needed funding from them
-‐ Negligence in the start of this monitoring of effect compromises the ability to exactly determine the impact and thus poten.al compensa.on
-‐ Monitoring did not include Indonesia
(3/3) IV. Oil Spill Response: Applica.on to Montara oil spill
Conclusion: Lessons learned - Australia and Indonesia were taken by surprise and were unprepared
for a transboundary offshore spill - Given the general capacity of Australia and exis.ng mechanisms in
place for oil spill response, the main missing piece seems to have been the prepara.on for transboundary (rather than na.onal) spills
- The fact that there is no compensa.on regime in place for transboundary spills for offshore ac.vi.es make the ra.fica.on and implementa.on of OPRC even more important, especially where offshore ac.vi.es are close to mari.me boundaries such as in the South China Sea
- This event also points to the need to re-‐ac.vate proposals for a liability and compensa.on regime for offshore ac.vi.es as there is for shipping
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z Thank you for your
aken.on !