Oil and gas in the ocean-international environmental law and policy

The aim of this paper is to analyze the current international regulation of exploration and exploitation of gas and oil in the ocean in order to provide legal recommendations to preserve marine biodiversity and to prevent climate change in oceans. Offshore oil and gas exploration has been increasing worldwide in the last years and is taking place in deeper waters and extreme environments. Impacts on the environment include, impact on fish stocks and mammals during seismic surveys, emissions through gas flaring, operative pollution derived from daily activity such as discharge of substances and accidental pollution. From the environmental point of view, the "offshore" oil and gas exploration and exploitation may be divided into two stages. First, the stage previous to the installation of the structures that I will denominate ‘preventive-precautionary stage’, where the security aspects and all the preventive-precautionary tools introduced by Environmental law as environmental impact assessment, monitoring, participation of citizens shall be applied in order to avoid environmental damage. If environmental law tools are not appropriately applied during this stage, the second stage, liability and reparation for environmental damage will follow. The essential results show that there is no international convention in force regarding the issue; however, there have been several attempts to achieve this objective. Two accidents, the first one a blow-out occurred in 2009 on the Montara well situated in the Australian EEZ which affected the cost of Indonesia and the other one in 2010, in the Deepwater Horizon highlighted again the need of a sustainable regulation of the topic. In 2012 the Comité Maritime International (CMI) constituted again a Sub-Group of study of the topic and in 2013, after the request of the Indonesian delegation the International Maritime Organization (IMO) agreed to analyze the topic. IMO conclusion was that there is no need for an international agreement, but that bilateral or regional agreements shall be reached. As there is no global convention devoted to the subject, I will study the United Nations Law Convention on the Law of the Sea (‘UNCLOS, 1982’) applicable provisions and several maritime and environmental international conventions in force in order to determine if they are applicable to offshore structures; namely, the United Nations Framework Convention on Climate Change (‘UNFCC, 1992’) and the Convention on Biological Biodiversity (‘CBD, 1982’). In relation to this Convention, we I will also study the Aichi Biodiversity Targets, specially target 11. As regards maritime conventions, I will analyze among others, the Protocol Relating to the 1973 International Convention for the Prevention of Pollution from Ships (including Annexes, Final Act and 1973 International Convention) (‘MARPOL 73/78’), the 1996 Protocol to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters (‘LC 1972 and LC PROT 1996’), the 1992 Protocol to Amend the 1969 International Convention on Civil Liability for Oil Pollution Damage (‘CLC 1992’), the 1990 International Convention on Oil Pollution Preparedness, Response and Co-operation (‘OPRC 1990’), the 2001 International Convention on Civil Liability for Bunker Oil Pollution Damage (‘Bunkers Convention’), the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships (‘Hong Kong Convention’) and the International Convention for the Safety of Life at Sea (‘SOLAS 1974’). I will also study applicable regional agreements such as the Protocol for the Protection of the Mediterranean Sea against Pollution resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil (‘Offshore Protocol’) to the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (‘Barcelona Convention’) and private agreements, such as Offshore Pollution Liability Agreement (‘OPOL’). Moreover, I will analyze soft law instruments such as Rio Declaration, Agenda 21, and Sustainable Development Goals, especially Goal 14. I conclude that enacting an international convention regarding the topic negotiated with the support of IMO, UNEP and IUCN is a priority in spite of opinions on the contrary in order to mark uniformity and based in UNCLOS Sections 194 (1) and 205 (8). A strong global political will is necessary in order to achieve this aim. This international convention shall cover both fixed and mobile structures and not only compensation issues, but also application of the precautionary principle. Meanwhile, exploration and exploitation of oil and gas in the ocean is regulated by different conventions and soft law, one of its application for instance is that the relevant coastal states shall apply for "Areas-to-be-Avoided", Particularly Sensitive Sea Areas (PSSA) and Special Areas (SA) to identify no-go zones and discharge restrictions.