Due Diligence as a Principle of
Energy Law
Dr. Ilias Plakokefalos, Assistant Professor, Utrecht University, Senior
Research Associate, Netherlands Institute for the Law of the Sea
Terminology
• Due diligence refers to the nature of a
concrete obligation
• In this case the relevant obligation is that of
preventing environmental harm from activities
relating to energy at sea
• This obligation is an obligation of conduct and
not of result (a distinction that despite being
left out the ILC articles on state responsibility
is highly relevant in this case).
Area of application
• The due diligence obligation to protect (in this
case the marine) environment extends to all
aspects of planning, installing/constructing,
transport/transfer, and
decommissioning/abandonment of energy
projects.
The Content of the (due diligence)
Obligation to Prevent Environmental Harm
• Environmental treaties (Espoo, the Convention
on emergency preparedness and response
among others), court decisions as well as the
work of the International Law Commission
and broad soft law instruments (Stockholm,
Rio etc.) provide the basis for the general rule
of prevention of environmental harm.
Law of the Sea Convention
• LOSC: General rule: Article 194 States shall take
measures to ensure that their activities do not
cause damage to other states or to areas beyond
areas where they exercise sovereign rights.
• Despite the language here (to ensure) this is a
clear obligation of conduct. It is evident from the
language in the whole part that urges states to
adopt measures to prevent pollution, to conform
with international standards (generally accepted
etc.).
Law of the Sea Convention
• Article 208 : Coastal states must adopt measures
to prevent, reduce and control pollution of the
marine environment pursuant to articles 60 and
80 .
• Article 60 in combination with article 80 EEZ and
Continental shelf.
• Article 60: Coastal state has the right to construct
installations and under article 56 has jurisdiction
over the protection of the marine environment.
Environmental Impact Assessment
under LOSC
• EIA: Article 206: Substantial pollution criterion:
probably oil platforms and pipelines fall under
that criterion but still is out of tune with the
general rules regulating marine pollution
prevention
• Case law corroborates these findings: MOX plant
for example dealt extensively with the obligation
to prevent pollution (EIA under OSPAR)
Guidelines under LOSC
• A question remains as to whether guidelines of international
organizations (e.g. IMOs Code for the construction and equipment
of mobile offshore drilling) are binding through art.211 of the LOSC.
• A part of the literature maintains that IMO guidelines become
binding through art.211. Probably not. The language of the article is
permissive and hortatory (may give effect). It is unlikely that these
guidelines and standards can be considered as binding.
• Nonetheless they are important because they are useful in
informing the general obligation of prevention under the LOSC.
Also, the LOSC refers to the obligation of states to use the best
practicable means.
General International Environmental
Law
• Virtually all of the prevention obligations therein
have found their way into numerous
environmental agreements and most of them
consequently into customary international law.
• The general obligation to prevent pollution is a
customary obligation
• Its constituent elements: inform, EIA,
negotiate/consult, notify
EIA
• More relevant for our purposes is the obligation
to conduct an EIA because there is not much in
the LOSC and this is how the obligation becomes
strengthened the other way round: customary
law adds layers of protection so to speak to the
general and somewhat conservative obligation as
it is found in the LOSC
• Two tiers: triggering (significant harm) and
content.
EIA under Espoo
• Espoo Convention: Significant adverse effects as opposed
to the substantial pollution standard of the LOSC.
• A number of criteria to be taken into account: size,
geographical location of the activity and a no-action
alternative. Exchange of info with the possibly affected
states BUT final decision rests with the state of origin.
• This is the minimum content of the obligation. The specifics
to be determined by national legislation/domestic law.
• This is as far as international law goes: Important because
most often the devil is in the details.
Should International Law Go Further?
• Specific technical standards are bound to vary
significantly (Arctic/Deep seabed examples)
• Technology changes
• Example: Same Season Well Relief (Canadian
Energy Board)
• Therefore probably no
Due Diligence as a Flexible Standard
• If one pays enough attention to the ITLOS
Advisory Opinion the way is clear:
‘ Due diligence has to be more severe in
riskier activities’
• Flexible standard: International law should
provide broad guidance NOT offer detailed
technical standards