Transcript Angelica Bonfanti and Francesca Romanin Jacur

‘OCEAN CORPORATE SOCIAL
RESPONSIBILITY’:
BUSINESS AND THE PROTECTION OF
THE MARINE ENVIRONMENT
Dr. Angelica Bonfanti and Dr. Francesca Romanin Jacur
Università degli Studi di Milano
[email protected] and [email protected]
Outline
• (Re)defining Ocean Corporate Social Responsibility
• Regulatory instruments addressing energy activities
of private operators at sea:
• “soft law” and “hard law”
• Different ways of regimes interactions:
• “legislation by reference”, integration, interpretation
• The circulation of standards across the different
regimes in theory and in practice:
• the legal nature of standards
• synergies and shortcomings
‘Ocean Corporate Social Responsibility’ (OCSR)
the way in which private business operators give consideration to the impact of
their activities in the field of marine energy exploitation on society and
affirm their principles and values both in their own internal methods and
processes and in their interaction with other actors and stakeholders.
In our view, with a broader approach, the OCSR legal framework includes:
a) the above mentioned environmental protection standards to be followed by
business operators
and
b) the non-binding recommendations establishing OCSR general principles and
standards, as adopted by States acting in the intergovernmental framework
and
c) Other normative instruments envisaging standards of conduct and principles
(indirectly) addressed to the companies and multinational corporations
operating in this field
Relevant legal framework (I)
•
“Soft law” legal regimes:
a) Voluntary initiatives: codes of conduct, 1974 Offshore Pollution
Liability Agreement (OPOL))
b) ISO, API (American Petroleum Institute), Global Industry Response
Group (GIRG)
b) Intergovernmental regimes:
• OECD Guidelines for MNEs
• UN Global Compact
• IMO codes and recommendations: ex.: IMO Code for the
construction and equipment of mobile offshore drilling units
(2001)
• the 2007 IFC Environmental, health, and safety guidelines for
offshore oil and gas development
“Relevant legal framework (II)
• “Hard law” regimes:
• Treaty-based regimes:
A) UNCLOS
B) IMO:
i) MARPOL, SOLAS
ii) Civil liability regimes
MARPOL 73/78 Convention
• Main international regulatory regime addressing pollution from
operation or accidents of (oil) transport at sea
• Implements UNCLOS art. 211 (and art. 220)
• The Annexes contain the detailed anti-pollution regulations and
are subject to regular review and amendment by the IMO Marine
Environment Protection Committee
• With the acceptance by 2/3 of the Parties = 50% gross
tonnage of the world merchant fleet
– Ex.: Annex I contains rules on the carriage of oil
 MARPOL Parties = 98% of merchant tonnage = “generally
accepted international rules and standards”
MARPOL action in sustainable maritime transport
MARPOL Annex VI on regulation for the prevention of air pollution from
ships by inclusion of new regulations on energy efficiency for ships
+ the related 2012 guidelines (on the method of calculation of the
attained energy efficiency design index (EEDI))
Preamble:
RECOGNIZING that the amendments to MARPOL Annex VI requires the
adoption of relevant guidelines for smooth and uniform
implementation of the regulations and to provide sufficient time for
industry to prepare
REQUESTS the Parties to MARPOL Annex VI and other Member
Governments to bring the annexed Guidelines related to the Energy
Efficiency Design Index (EEDI) to the attention of shipowners, ship
operators, shipbuilders, ship designers and any other interested groups
MARPOL 2012 Guidelines on the method of calculation
of the attained energy efficiency design index (EEDI) for
new ships (Resolution MEPC.212(63))
• Purpose: establish a mechanism for a company to improve the
energy efficiency of its ships
• How: by enhancing a wider compliance of ship operators with
international environmental standards
 Regimes convergence: they provide that the Ship Energy Efficiency
Management Plan should be linked to a broader corporate energy
management policy for the company that owns, operates and
controls the ship” and assume that “many companies will already
have an environmental management plan (EMS) in place under ISO
14001
Different ways of regimes interactions (I):
•
•
Interpretation
Integration
“INDIRECT LEGISLATION BY REFERENCE”:
UNCLOS, art.211.1: States, acting through the competent international
organization (…) shall establish international rules and standards to
prevent, reduce and control pollution of the marine environment from
vessels.(…)
States to adopt laws and regulations to prevent, reduce and control
dumping (…) No less effective than global rules and standards
Different ways of regimes interactions (II):
• DIRECT LEGISTLATION BY REFERENCE:
UNCLOS, art. 211.5: “Coastal States […] may in respect of EEZ adopt laws
and regulations for the prevention, reduction and control of pollution
from vessels conforming to and giving effect to generally accepted
international rules and standards established through the competent
international organization […]”.
art. 214 requires states to adopt laws and take other measures to
implement applicable international rules and standards established
through competent international organizations (…) to prevent, reduce
and control pollution of the marine environment arising from or in
connection with seabed activities subject to their jurisdiction and from
artificial islands, installations and structures under their jurisdiction (…)
Legal effects of this “regimes interaction”
• Broadening the scope ratione personae of the rules originally adopted
within MARPOL:
• They become applicable to UNCLOS Parties that may not be Parties
to MARPOL (or that may voted against their adoption)
• When incorporated into OCSR instruments, they apply to private
operators
• What is their (original) legal nature?
• Standards of MARPOL Annexes: legally binding
• Standards of MARPOL recommendations: non-legally binding (?)
• OCSR voluntary standards : non-legally binding
• Does their legal nature change when they are
incorporated in another regime?
Addressing Environmental Disasters:
the role of OCSR
OCSR mainly pursues a preventive function :
• management of emergencies to reduce the amount of damages
• Best practices and technical guidelines
 standardization shows an outstanding convergence among the business
associations, governments, IGOs (such as the IMO, the OECD, the OSPAR
Commission)
The 1974 Offshore Pollution Liability Agreement (OPOL) : is an industry
agreement among major oil companies, which provides compensation
for damage caused by oil pollution originating from offshore fixed or
mobile facilities belonging to these companies
Addressing Environmental Disasters: the
role of treaty-based civil liability regimes
States generally do not recur to interstate claims - Pollution from
ships is dealt with under national law and civil liability and
compensation schemes
1992 Civil Liability Convention and IOPC Fund Convention (ships)
The 1977 (London) Convention on Civil Liability for Oil pollution
Damage resulting from Exploration and Exploitation of Seabed
Mineral Resources (offshore installations, as defined in the convention)
IMO Civil liability regimes
3 tier of compensation:
A) 1992 CLC Convention: ship owner (strict liability regime) + exceptionally
other operators (art. III.4)
B) 1992 IOPC Fund Convention: cargo owners = companies senders/receivers of
oil in States Parties
C) 2003 Optional Supplementary Fund Protocol
 Gradual implementation of the polluter-pays principle
Anyone in a Member State can bring a claim for compensation
Compensable types of damages:
• Property damages, Clean-up, Economic losses (fishermen, tourism,…)
• What about pure environmental damages?
 “reasonable” costs of reinstatement measures… but what if there is an
“irreparable damage”?
 How should the “reasonableness” of measures be established?
 What role for IOPC Fund Convention practice in handling claims?
The circulation of standards across the different
regimes
Treaty-based
standards
Domestic Courts
Judgments
Contractual
provisions
Intergovernmental
CSR standards
Voluntary CSR
standards
From OCSR to a strengthened
accountability of energy operators
in theory: formally treaty-based standards are addressed to
States
in practice:
a) they are to be complied with by the private companies
(Preventive phase)
b) Civil liability funds are replenished by private operators =
they are an accountability mechanism (compensation
phase)
Issues for discussion:
What is the scope of UNCLOS provisions referring to
“applicable international rules and standards established
through competent international organizations”?
• May UNLCOS incorporate also “pure” OCSR standards?
• What is the effect on the legal nature of standards when
they “move” across regimes?
• Should non-compliance with voluntary standards be
considered as “negligence” under treaty-based civil liability
regimes?
• Weaknesses:
•
• Lack of uniform definitions across the different legal regimes…
Can offshore oil platforms be properly described as “vessels” or “ships”?
• Civil liability treaty-based regimes do not cover environmental
damage per se