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The International Law of Offshore Construction: Cutting Through Fragmented Legal Regimes Towards Better Governance

Final Report Summary - OFFSHORELAW (The International Law of Offshore Construction: Cutting Through Fragmented Legal Regimes Towards Better Governance)

The OFFSHORELAW Project (FP7-MC-IEF No. 299703) aims at spelling out the normative framework for offshore installations. From the fragmented and dissected legal material that does exist, it carves out an ‘international law of offshore installations’. No international treaty specifically regulates the issue as such. There is a plethora of instruments and of related bureaucracies, which deal with different aspects of installations’ life, and which elaborate regulations in isolation one from the other. The lack of communication among the different frameworks generates conflicts and incoherencies between institutions and norms.

The Marie Curie fellow in charge of the OFFSHORELAW Project, dr. Seline Trevisanut (http://www.uu.nl/leg/staff/strevisanut/0) first identified and analysed the relevant multilateral instruments and relevant customary international law, which are applicable to offshore installations and structures, paying particular attention to possible tensions and inconsistencies. These instruments include universal and regional agreements, which relate to the different phases of the life of the installations (construction, operation and removal/abandonment) or to relevant other issues (such as safety and dispute settlement). This first endeavour was then integrated by the analysis of state practice, focusing in particular on the plethora of bilateral agreements, which have been concluded for the exploitation of transboundary resources or for the exploitation of resources in disputed areas.

The collected sources were studies through the length of six issues: the three main life phases of offshore installations, namely 1) the construction, the 2) operation and the 3) removal or abandonment; and then three cross-cutting topics, namely 4) the role of private actors in the offshore sector, 5) the safety and security of offshore installations, and 6) the settlement of disputes relating to offshore installations.

For the first three topics, the research aimed at identifying some common standards or accepted rules, which regulate at the international level the offshore sector. Most of the collected material relates to the oil and gas industry and shows that, despite some general norms for the protection of the marine environment, practice at the state and regional level is very diversified. Moreover, many areas of relevance are not yet internationally regulated, such as the legal consequences of a transboundary oil spill.

From the analysis of the material addressing the life phases of installations, it emerged that private actors, namely the offshore industry, play an important role in the regulation of the offshore sector. Specifically, they are involved in the formation of standards and norms following a process of international co-regulation. Their participation in law-making is sometime explicitly provided for by a legal text; some other times, it expresses itself through lobbying. The role of private actors can, on the one hand, be positive because they supposedly better know the needs and dangers of the considered economic activities; on the other hand, they can prevent the adoption of more stringent norms, which might be detrimental to their economic interests.

The issues concerning the safety and security of offshore installations have been isolated from the other ones pertaining to the three phases of the installations’ life. This is justified by the topicality of the issues in the aftermath of the Montara (2009) and Deepwater Horizon (2010) incidents, and the Greenpeace Arctic Sunrise case (2013). Moreover, most recent regulatory developments concern these specific aspects of the offshore sector. The analysis of states’ practice, in particular at the European level, shows again the lack of precise agreed standards and a diversified implementation of the existing ones. The EU directive 2013/30 on safety of offshore oil and gas operations (OJ L 178/66, 28 June 2013) is a welcome development, but it does not solve all problems.

The disputes relating to offshore installations can concern any of the relevant areas of international law (e.artifacts. law of the sea, international environmental law, international energy law, etc.). Consequently, the disputes can be, even contemporarily, submitted to different settlement mechanisms at the international, supranational and national level. The analysis of this issue highlights the pathologies of the existing legal framework and the consequences this situation has for the relevant economic activities.

It is then important to highlight how the expansion of offshore activities challenges the exercise of other legitimate uses of the oceans: for instance, fishing, shipping and military activities can suffer from the multiplication of artefacts at sea. In the final part of the project, the interaction between these legitimate activities is discussed in order to assess if the present normative and institutional context guarantees a balance between their exercises.

Finally, the Project aims to offer some coherent as well as effective tools for regulating the expanding offshore industry, and for adjusting to new uses of the oceans in order to gather better ocean governance. The final results appeal to an academic audience, students and lecturers alike, and at the same time, international law practitioners, mainly specialists in law of the sea, energy law, and oil and gas law. For instance, major oil and gas companies (Shell, BP etc.), but also companies active in the ‘green economy’ (i.e. the development and exploitation of renewable energy technologies, such as offshore wind-farms, ocean thermal energy convertors, etc.), may have an interest in the results of the project. Moreover, regulators at the international, regional, national and local levels, could benefit from the results of the OFFSHORELAW Project, which gives them some guidance in order to [*]sustainably[/*] use the ocean and pursue a “Blue growth”.

One of the objectives of the project was also the carrier development of the Marie Curie fellow. Thanks to the prestige and the fruitful environment of Utrecht University, dr. Trevisanut has been invited to many international conferences and to contribute to internationally relevant publications. She has also joined relevant international networks, such as Expert Working Group on Deep Seas of the European Marine Board (http://www.marineboard.eu/deep-sea-research) and Working Group n. 2 “New Developments of Economic Activities at Sea” of MARSAFENET – NETwork of experts on the legal aspects of MARitime SAFEty and security (COST action IS1105) (http://www.marsafenet.org/). She gave guest lectures at the National University of Singapore (Singapore), in Lomé (Togo) for the Max Planck Foundation for International Peace and the Rule of Law, and will be lecturing at the 2014 Rhodes Academy of Oceans Law and Policy (Greece). Finally, she has been appointed as University Lecturer at Utrecht Law School and the final results of her OFFSHORELAW Project are forthcoming in the Cambridge Studies of International and Comparative Law (Cambridge University Press, 2015).