Marissa Smith, the Deepwater Horizon Disaster: an Examination of the Spill?s Impact on the Gap in International Regulation of Oil Pollution from Fixed Platforms

• Jurisdiction: United States,Federal
• Citation: Vol. 25 No. 3
• Publication year: 2010
• topic: Environmental Law

THE DEEPWATER HORIZON DISASTER: AN EXAMINATION OF THE SPILL’S IMPACT ON THE GAP IN INTERNATIONAL REGULATION OF OIL POLLUTION FROM FIXED PLATFORMS

INTRODUCTION

On April 20, 2010, the international community learned that the Gulf of Mexico had endured1 what would ultimately become the world’s largest oil spill in history2 and what President Barack Obama would describe as “the worst environmental disaster America has ever faced.”3 British Petroleum’s

(“BP”) Deepwater Horizon oilrig had exploded off the coast of Louisiana, killing eleven crewmembers.4 By the time BP was able to engineer a successful means to cap the rig, eighty-six days had passed since the Deepwater Horizon began to expel oil into the environment,5 and approximately 185 million gallons of crude oil had escaped into the Gulf of Mexico and the surrounding waters.6 Oil leaked continuously from BP’s Deepwater Horizon rig for approximately three months, causing extensive damage to the environment and devastating Gulf Coast tourism and fishing industries, especially those of Florida and Louisiana.7

Although the Deepwater Horizon exploded off the coast of the United States, hundreds of miles from any other country and with its greatest effects on the economies and environments of the Gulf Coast states, oil spills have traditionally been international concerns.8 Historically, due to sea currents’

abilities to easily transport oil slicks from their origin to neighboring countries’

1. Kate Galbraith, Gap in Rules on Oil Spills from Wells, INT’L HERALD TRIB., May 17, 2010, at 20, http://www.nytimes.com/2010/05/17/business/energy-environment/17green.html.

2. Justin Gillis & Leslie Kaufman, Oil Spill Calculations Stir Debate on Damage, N.Y. TIMES, Aug. 5,

   2010, at A16.

3. Justin Gillis, Where Gulf Spill Might Place on the Roll of Great Disasters, N.Y. TIMES, June 19, 2010, at A1.

4. Robbie Brown, Official Denies BP Put Cost Ahead of Safety at Oil Rig, N.Y. TIMES, July 23, 2010, at

   A12.

   
   

5. Campbell Robertson & Henry Fountain, BP Caps Its Leaking Well, Stopping the Oil After 86 Days,

   N.Y. TIMES, July 16, 2010, at A1. The rig was finally capped on July 15, 2010. Id.

6. Elizabeth Wilson, Oil Spill’s Size Swells, CHEM. & ENG’G NEWS, Sept. 27, 2010, at 14.

7. Id.

8. Galbraith, supra note 1.

   shores, states have recognized that oil spills involve important international responsibilities concerning economic, environmental, and diplomatic relations.9 For example, in 2009, a Thai-owned oil well leaked off the coast of Australia, and caused a twenty-five mile by eighty-five mile oil slick that had significant impacts on both Indonesia and East Timor.10 To direct the international prevention and regulation of such international oil spills, states have implemented multiple regional agreements and global conventions through the formation of the International Maritime Organization (“IMO”).11

   
   

   While an extensive body of international law concerning oil pollution12 has emerged, a significant gap still exists in the international regulation of such pollution. The current multilateral maritime conventions apply “primarily or exclusively to accidents involving tankers,”13 failing to take into account

   pollution from fixed platforms like the Deepwater Horizon. Moreover, while two global conventions—addressed below in Part II.A.1—met in 1992 to address the growing international implications and dangers of oil spills caused by tankers,14 the international community has yet to establish a global

   convention that specifically addresses the dangers of, and possible effective regulations for, oil spills from fixed platforms.15

   
   

   The conventions currently in force are therefore not applicable to accidents, like the Deepwater Horizon disaster, which involve an explosion of or leak from a fixed, offshore oil platform.16 Because “tankers move across international boundaries all the time” and “platforms remain fixed in place,”

   strict regulation of fixed platforms on an international scale has not yet been

   
   

9. Id.

10. Meraiah Foley, As Oil Enriches Australia, Spill Is Seen as a Warning, N.Y. TIMES, Sept. 28, 2009, at A6; see also Galbraith, supra note 1. For example, the spill “seriously affected” Indonesian fishermen when

    the oil slick entered into their fishing grounds and negatively impacted their livelihood through a resulting lack of catch. East Timor Wants Compo for Oil Spill Fallout, ABC NEWS (Nov. 5, 2009, 7:15 PM), http://www.abc.net.au/news/stories/2009/11/05/2734579.htm.

11. Galbraith, supra note 1.

12. See infra Part I for the relevant conventions and agreements.

13. Galbraith, supra note 1; see also Yee Huang, International Law Implications of the BP Oil Spill, CPRBLOG (June 9, 2010), http://www.progressivereform.org/CPRBlog.cfm?idBlog=FBF393AA-EE0A-FF0C-

    695B9BA163B50BDB.

14. International Maritime Organization Protocol of 1992 to Amend the International Convention on Civil Liability for Oil Pollution Damage, opened for signature Jan. 15, 1993, 1956 U.N.T.S. 255 [hereinafter 1992 CLC]; International Maritime Organization Protocol of 1992 to Amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, opened for signature Jan.

    15, 1993, 1953 U.N.T.S. 373 [hereinafter 1992 Fund]; see also Galbraith, supra note 1.

15. Galbraith, supra note 1.

16. See id.; infra Part II.A.1.

    
    

    successfully achieved.17 The United Nations Convention on the Law of the Sea (“UNCLOS”)18 comes closest to regulating platform pollution by addressing fixed platforms in its statutory language,19 but its strength, addressed in Part

    I.B below, mainly rests in its “framework for international cooperation and its attempt to harmonize standards,”20 rather than in its implementation of a uniform, international liability standard.

    
    

    In order to compensate for this lack of codified regulation of fixed platform pollution, operators in the oil and shipping industries have created “private compensation regimes” such as the International Oil Pollution Compensation Funds (“IOPC”) and the Offshore Pollution Liability Association (“OPOL”).21

    These operators have voluntarily bound themselves to regulations implemented by private compensation regimes, which ensure that violators are held strictly liable for any oil pollution emitted by their equipment.22 IOPC and OPOL collect damages from the liable party and detail in their agreements exactly how the injured parties may receive compensation.23 Importantly, however, the agreements of both IOPC and OPOL place caps on the level of compensation that the regimes can collect per party, per incident, and per year.24 Therefore, if a party to IOPC or OPOL were to cause a spill that cost more than its relevant, private compensation regime’s total liability limits, not all injured claimants would be able to obtain their due compensations.

    
    

    As is explained below, the current collection scheme of due compensations for such accidents leaves victims injured by oil pollution at the mercy of either private compensation regimes or those limited, international agreements

    
    

17. See Galbraith, supra note 1.

18. United Nations Convention on the Law of the Sea, opened for signature Dec. 10 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS].

19. Id. art. 194, para. 3.

20. See Huang, supra note 13.

21. See Introduction—The International Oil Pollution Compensation Funds, INT’L OIL POLLUTION COMPENSATION FUNDS, http://www.iopcfund.org/intro.htm (last visited Oct. 17, 2011) [hereinafter IOPC Introduction]; About OPOL, OPOL—OFFSHORE POLLUTION LIABILITY ASS’N LTD, http://www.opol.org.uk/

    about.htm (last visited Oct. 17, 2011); SECRETARIAT OF THE INT’L OIL POLLUTION COMP. FUNDS, THE INTERNATIONAL REGIME FOR COMPENSATION FOR OIL POLLUTION DAMAGE—EXPLANATORY NOTE 1 (2011)

    [hereinafter EXPLANATORY NOTE], available at http://www.iopcfund.org/npdf/genE.pdf.

22. See IOPC Introduction, supra note 21; About OPOL, supra note 21; EXPLANATORY NOTE, supra note 21, at 1.

23. See IOPC Introduction, supra note 21; About OPOL, supra note 21; EXPLANATORY NOTE, supra note

    21, at 1.

24. See IOPC Introduction, supra note 21; About OPOL, supra note 21; EXPLANATORY NOTE, supra note 21, at 1.

    currently in effect.25 This arrangement is deficient for two reasons. First, compensation caps of private compensation regimes fail to encapsulate fully the damages incurred by these disasters, forcing innocent victims in the surrounding international environment to bear the remaining costs of repair and revitalization.26 Second, the current international agreements fail to address adequately pollution from fixed platforms.27 Therefore, it is important to examine how best to fill this gap in international law so that those most responsible and best able to absorb the cost of the accident will be held liable for such damages; otherwise, the innocent consumer will be forced to shoulder

    this undue burden.

    
    

    In an effort to propose a solution that would alleviate this inadequacy, this Comment evaluates this “gap” in international law and the degree to which it is filled by private compensation regimes such as IOPC and OPOL. To this end, this Comment examines the Deepwater Horizon disaster’s impact on the current international agreements controlling oil pollution. As the largest oil spill in history, the Deepwater Horizon explosion has put to the test the effectiveness of compensation caps enacted by private compensation regimes and reemphasized the importance of enacting a global convention on oil pollution from fixed platforms. This Comment also examines the Deepwater Horizon disaster’s impact on both private compensation regimes’ regulations and liability caps, and on the international community’s recent reevaluation of the importance of a global convention specifically addressing fixed platforms. This Comment then argues that a global treaty—which addresses the international implications of oil spills from fixed platforms and assigns liability in a manner similar to those enforced by international conventions on tanker pollution and similar, regional agreements—is the most logical solution to fill this gap in international law and to...