Introductory remarks to Session on The Way Ahead
Comité Maritime International
2015 Istanbul Colloquium
8 June 2015
The Hon Justice Steven Rares*
1. Today’s discussion has given pessimists new hope about the prospects of an international convention on offshore oil and gas leaks and other pollution materialising. Complacency is driven by two familiar human reactions: I have everything under control and so it can’t happen to me, and its corollary, it is someone else’s problem. Experience tells us, and Kofi Mbiah reminded us this morning, that all too often only a major catastrophe, such as the Torrey Canyon oil leak off the English coast in 1967 can shake the complacent into action.
2. Waterborne pollution, currents and weather have no respect for international boundaries. But human beings and the natural environment are affected by pollution wherever it strikes. As offshore activity increases, with the benefit of new technology that allows exploration and exploitation further from land and at greater and greater depths, so too does the danger of a disaster. We heard from Fabien Lerede that when the oil price goes down, cost cutting increases both the risk of casualties and of operators’ financial failure.
3. All national governments affected by waterborne pollution have ultimate sovereign responsibility to clean up the mess, at whatever cost. Dr Iur Damios Dumoli Agusman vividly illustrated the scale of oil spills that resulted from the 2009 Montara blowout off the North West shelf of Australia, to the east and south of Indonesia.
4. The questions here are:
- first, whether a State that approves offshore activity that is the source of pollution has any legal responsibility for clean-up costs and economic compensation in other affected States’ territories or international waters, in what the 1982 United Nations Convention on the Law of the Sea (UNCLOS) defines as “the area”;
- secondly, what legal remedies persons who have suffered loss or damage in other States can pursue, especially when the operator of an offshore installation is not a person resident in the authorising State or has no, or not enough, money to meet clean-up costs and damages;
- thirdly, how a person can enforce their claims when a leak occurs from an installation in one jurisdiction, the damage occurs in a second jurisdiction and the operator is in a third jurisdiction, including ones that give it protection like that of a flag of convenience; and
- fourthly, whether there can be some minimum agreed international liability and limitation regime with readily enforceable recovery mechanisms for persons, other than States, to ensure relatively prompt and guaranteed payment.
5. The last regime could also include a fund like that now known as the 1992 Fund Convention, to cover unexpectedly large individual claims that fall outside the scope of the primary convention, like those under the 1969 Civil Liability Convention (CLC).
6. These four issues arise out of Art 235 of UNCLOS. That article imposes responsibilities on States for the protection and preservation of the marine environment and the provision of recourse within their systems for prompt and adequate compensation or other relief in respect of pollution caused by persons in their jurisdiction.
7. It is important that the purposes of the International Maritime Organisation (IMO) stated in Art 1 of the 1948 Convention on the International Maritime Organisation be considered as organic, and not static, authorisations of its work. Constitutional documents, such as that Convention, are written with the uncertain and unknown future in mind. They are not intended to freeze the work of international organisations, such as the IMO, in a time warp, regardless of how science, technology and knowledge develop. That does not mean that the IMO can do anything it likes. But as the IMO’s Secretary-General, Koji Sekimizu, is reported to have said in April 2015 at the Sea Asia Conference in Singapore, the offshore sector must have some form of global governance.
8. Hopefully, the Comité Maritime International can lead the way with the work reflected in today’s seminar. The first step is working on guidelines for bilateral and regional agreements or arrangements. Once these are formulated, a convention may be far easier to pursue.
9. In my opinion, a convention is necessary because the issues are global, not local, and need international regulation.
* A judge of the Federal Court of Australia, an additional judge of the Supreme Court of the Australian Capital Territory, President of the Judicial Conference of Australia and a member of the Board of Management of the Australasian Institute of Judicial Administration.
 Chair of the International Maritime Organisation’s Legal Committee
 Offshore Sydnicate Claims Director, The Standard Club
 Deputy Director General of Treaties and Legal Affairs, Ministry of Foreign Affairs of the Republic of Indonesia
 established under the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, supplemented by the Protocol of 2003 to that Convention
 the 1969 International Convention on Civil Liability for Oil Pollution Damage, as amended by the Protocol of 1992 to that Convention