International Law Implications of the BP Oil Spill

by Yee Huang

June 08, 2010

Hundreds of offshore extraction platforms dot the world’s oceans, funneling millions of gallons each day of oil, natural gas, and other extracted resources to the surface. While these operations are regulated by the country where they’re located, they have the potential to cause international environmental disasters when located near boundary waters or near large currents. The New York Times looked at the international law implications of the ongoing BP Oil Spill and came to one conclusion: the international law governing oil pollution from offshore platforms is at best thin. 

Much of the international law governing oil pollution applies directly to tankers and ships used to transport the oil, which makes sense since these transport vessels constantly cross in and out of territorial waters. But countries are increasingly exploring their offshore resources, leading to the need to create a stronger legal framework for international environmental harms that may be caused by these activities.

To date, a patchwork of international conventions govern oil pollution, most notably:

  • the United Nations Convention on the Law of the Seas (UNCLOS);
  • the Convention for the Prevention of Pollution from Ships; and
  • the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter. 

The latter conventions apply specifically to pollution from moving vessels that traverse international waters. Pollution from fixed offshore platforms like the Deepwater Horizon platform is unlikely to fall under them. 

UNCLOS holds the most promise in part because it has been ratified by 156 countries and represents customary international law that applies to non-ratifying countries. For example, the United States has not ratified UNCLOS but considers many of its provisions to be customary, meaning that it generally recognizes the convention provisions. 

UNCLOS establishes the general obligation that countries must “take all measures necessary to prevent, reduce, and control pollution of the marine environment from any source” and to “ensure that activities under their jurisdiction or control are conducted so as not to cause damage by pollution to other [countries] and their environment.” Under UNCLOS, this obligation applies to pollution from “installations and devices used in exploration or exploitation of the natural resources of the seabed and subsoil.”

Article 208 requires countries to “adopt laws and regulations to prevent, reduce and control pollution of the marine environment arising from or in connection with seabed activities.”   The laws, regulations, or other measures “shall be no less effective than international rules, standards, and recommended practices and procedures.” UNCLOS also encourages the formation of global and regional rules to prevent this type of pollution. With respect to offshore platform pollution, the strength of UNCLOS is its framework for international cooperation and its attempt to harmonize standards for this pollution. 

While this BP oil spill may not infiltrate waters beyond the United States, it reminds us that the next disaster could—and the effects on international waters are not to be overlooked. The gaps in international regulation of marine pollution from fixed platforms will become increasingly evident as more extraction operations are established and as countries and companies look to the Arctic as a source for more resources. Clear legal frameworks and lines of communication between and among countries need to be established

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