Liability for Injurious Consequences Arising Out of Offshore Exploration and Exploitation

1. Introductory remarks

The continuous expansion of the offshore industry due to the increasing energy demands may have serious detrimental impacts on the marine environment, which in the smaller regional seas could be hardly reparable. Suffice to mention the Deepwater Horizon disaster in the Gulf of Mexico, the largest marine oil spill to date.

Prevention activities are therefore very important, although the risk of pollution, due to the extremely ultrahazardous  nature of offshore drilling, cannot be completely eliminated This main characteristic of offshore activities makes liability for their injurious consequences almost as much important as prevention measures, as far as the victims are concerned.

Section 2  is devoted to the strict liability of states, explaining the reasons why this basis of liability of states does not exist in case of pollution damage from ultrahazardous activities. Section 3 is devoted to the civil liability of operators, with particular emphasis on the scope of the environmental damage.

 

2. Liability of States for Pollution Damage from Exploration and Exploitation of Seabed and Subsoil

As highlighted, the offshore drilling activities belong to the group of ultra-hazardous activities. The main characteristic of these activities is that, although all necessary measures have been taken to prevent pollution damage from the offshore activities, damage can nevertheless occur, in particular in the event of an oil rig exploding.[1] In such cases there is no wrongful conduct and liability of states for wrongful act cannot be applied.  On the other hand, in customary international law there is no rule of strict liability of states. Therefore, such a basis of liability can only be applied if a treaty so provides.

Despite the risks involved, unusually hazardous activities, such as oil transportation or offshore drilling, are useful activities and their benefits outweigh the potential risks.

The most practical and best solution for the victims would be strict liability for the State having jurisdiction and control over the area of offshore activities.

In order to cover situations in which damage results from non-wrongful conduct of states, the UN International Law Commission (ILC) started the work on the topic International liability for injurious consequences arising out of acts not prohibited by international law. [2] The main intention was to establish the system of strict liability of states,  i.e., liability sine delicto, based on the causal link between the damage and the conduct that caused the damage.  However, from the outset, the issue met with strong scepticism and opposition not only from States but also from some legal doctrine   The Commision was eventually forced to change the course of dealing with the topic and moved beyond the study of reparation of significant transboundary harm to the management of a transboundary risk, with a strong emphasis on the prevention of transboundary losses. The integration of preventive and reparative elements into a single instrument has led to the weakening of the twin pillars of the issue, namely the prevention obligation and the compensation obligation.

According to the 1996 ILC Draft articles, violation of the obligation of prevention entails no responsibility, and the obligation to compensate has become a negotiation duty.[3] The 1997 session of the Commission opened up the possibility of amending these problematic solutions. The Working Group, established by the Commission to make recommendations on further develop the topic, noted that the scope and content of the topic remained unclear due, inter alia, to some conceptual and theoretical difficulties.[4] One of the key recommendations of the Working Group was to treat the issues of prevention and international liability separately. The Commission accepted the proposed approach and in 2001 completed the first part of the task, i.e., the articles on prevention,[5] and in 2006 the second part, i.e., the principles on liability. The 2006 Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities[6] did not introduce anything new on this important issue. In fact, it can be said that these principles can form the basis for a regressive development of international law, recommending lower standards than those contained in the treaties dealing with civil liability for the damage caused by pollution (see infra.) The states obviously do not want rules that would make them liable in cases where therewas no wrong.

The absence of a general rule of strict liability for states and their reluctance to adopt a treaty containing provisions on such liability eventually led to the adoption of civil liability systems where liability is channelled directly to private actors.

 

3. Civil liability for Damage Caused by Exploration and Exploitation of Seabed and Subsoil

The constantly increasing number of conventions concerning civil liability for damage caused by marine pollution have some common features. They channel liability to the liable person, usually the operator, or, in the case of vessel-caused oil pollution, the shipowner. Liability is strict, usually with a few exonerating grounds, such as war, civil war, hostilities or natural phenomena amounting to vis major, the intention of a third party, the intention or negligence of a victim, and the negligence of those responsible for aids to the navigation. The liable person is entitled to limit his liability to a certain amount, except in cases where he/she is personally at fault. The damage covered by the conventions comprises actual damage, loss of income, impairment of the environment and the costs of preventive measures. Compensation for impairment of the environment is usually limited to the cost of reasonable measures of reinstatement.

In order to provide compensation even in cases when no liability arises, or where the liable person is insolvent, additional compensation funds have been introduced. This was first done in relation to the 1969 Convention on Civil Liability for Oil Pollution Damage (CLC), which was supplemented by the 1971 Fund Convention – now, after amendments of both conventions in 1992, commonly known as CLC/Fund 92.[7] The role of the Fund is subsidiary: it must provide additional compensation for pollution damage in cases where protection afforded by the CLC is inadequate.[8] Thus, the CLC/Fund 92 essentially provides for a two-tier compensation system, with the shipowner being liable for the first tier of damage and the Fund for the second tier. Such a system is necessary in cases of extensive damage. In addition, the Fund operates in the first tier if compensation cannot be obtained from the shipowner due to insolvency or exemption from liability. In 2003 the Supplementary Fund Protocol was adopted, which provides for a third tier of compensation. In 2003 the Supplementary Fund Protocol was adopted, which provides for a third tier of compensation.[9]

Thus, CLC/Fund 92 essentially provides for a two-tier compensation system, with the shipowner being liable for the first category of damage and the Fund for the second category. Such a system is necessary in cases of extensive damage. In addition, the Fund operates in the first tier if compensation cannot be obtained from the shipowner due to insolvency or exemption from liability. In 2003 the Supplementary Fund Protocol was adopted, which provides for a third tier of compensation. The Fund is financed by mandatory contributions from oil companies – oil importers in the Contracting States, transferring thus part of the economic burden to the oil industry. [10]

Offshore drilling activities, due to their extremely hazardous nature and the unknown amount of oil that may leak from The offshore drilling activities due to their ultrahazardous nature and unknown quantity of oil that may leak from the subsoil area, can have the most serious consequences of all sources of marine pollution, despite possible preventive measures taken, e.g. in the event of an oil rig explosion. This is precisely the reason why liability for injurious consequences of this source of pollution should be regulated internationally.[11] The first attempt in this direction was the regional 1977 Convention on Civil Liability for Oil Pollution Damage resulting from Exploration for and Exploitation of Seabed Mineral Resources,[12] which never entered into force, but its provisions are worth mentioning, since in our opinion it is a well-balanced document.

The 1977 Convention provides that liability rests on the operator of the installation from which the damage originates and extends it five years after the abandonment of the installation in question (Art. 3, para.1).  .Liability is strict and the operator is to be exonerated, in whole or in part, if he can prove that the damage was caused by an act or omission of the victim with the intent to cause damage, or by the negligence of the victim. No liability for pollution damage is attached to the operator if he proves that the damage was caused by an act of war, hostilities, civil war, insurrection, or a natural phenomenon of an exceptional, inevitable and irresistible character. Thus, because of the specificity of offshore activities as unusually dangerous activities[13] force majeure has been limited to a natural phenomenon equivalent to force majeure and the acts of third parties are not mentioned among the exoneration grounds.

The operator’s liability is limited to each installation and each incident, unless the damage was caused by the operator’s own deliberate act (Article 6). However, the Parties to the 1977 Convention are not prevented from providing for unlimited liability or a limit of liability higher than that provided for in Article 6 (Article 15, para.1). The latter provision is probably the reason why the 1977 Convention has never entered into force and there is currently no regional or global convention entirely devoted to civil liability for damage arising from offshore activities, although the need for the adoption of a global convention containing specific provisions on this subject has been stressed many times in recent decades.

In this regard a proposal to the International Maritime Organization (IMO), made by Indonesia in 2010, should be mentioned. Indonesia requested the IMO to address in its work  the topic of liability and compensation for oil pollution damage resulting from of exploration and exploitation of seabed and its subsoil.[14]  Most delegations supported the idea and the IMO Legal Committee recommended that Strategic Direction (SD) 7.2 be revised to include this topic, although several delegations strongly opposed it, stressing, inter alia, that the IMO’s pollution prevention activities were limited to vessel-source pollution and its competence with regard to offshore platforms was limited  to their impacts on maritime navigation.[15] Finally, following the intervention of the IMO Council, the initiative resulted in a more limited guidance document to assist states in elaborating bilateral and regional agreements on the topic of liability and compensation for oil pollution damage from offshore activities.[16]

As an interim regime pending ratification of the 1977 Convention, in 1974. operators in the North Sea signed a private agreement, namely a voluntary oil pollution compensation scheme, known as OPOL (Offshore Pollution Liability Agreement),[17] which entered into force in 1975. The 1977 Convention never entered into force, and OPOL, as a private liability scheme, continued to exist. It represents a commitment by the oil and gas industry and operators assume financial responsibility for any discharges of oil during exploration or exploitation.[18] The liability is limited to 250,000,000 US dollars per incident. [19] As there is no global or regional convention in force specifically dedicated to liability and compensation for damage from offshore activities, liability schemes applicable to all sources of pollution (except pollution from ships) should also apply to pollution from offshore drilling. In the next chapter we consider the liability scheme in the Mediterranean. As there is no global or regional convention in force specifically dedicated to liability and compensation for damage from offshore activities, the liability regimes applicable to all sources of pollution (except pollution from ships) should also apply to pollution from offshore drilling. In the next chapter we consider the liability regime in the Mediterranean.

 

4. Liability scheme in the Mediterranean

The framework Barcelona Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean [20] in Article 16 obliges states parties to cooperate in the formulation and adoption of appropriate rules and procedures for the determination of liability and compensation for damage resulting from pollution of the marine environment in the Mediterranean Sea Area.

The first attempt to adopt appropriate rules in accordance with the Barcelona Convention was made at the 1997 Brijuni (Croatia) Meeting. [21] The draft submitted to the meeting  provided for three tier liability: strict liability of the operator,[22]  establishment of the Mediterranean Interstate Compensation Fund, which was to have a supplementary role if the operator was insolvent,  and finally residual liability of the state having jurisdiction and control over the activities.  It should be stressed that no limitation of liability is envisaged at any of these tiers.[23]

Preparatory works continued in 2003, feasibility study was adopted in 2005 and the Working group had two meetings, in 2006 and 2007. [24]  However, at the 2007 meeting instead of the binding legal instrument the draft guidelines were formulated and they were finally adopted at the ordinary meeting of the contracting parties in 2008. Thus, the outcome, as far as type of instrument is concerned, was completely different than proposed in the 1997 Draft.

The 2008 Guidelines for the Determination of Liability and Compensation for Damage resulting from Pollution of the Marine Environment in the Mediterranean Sea Area [25] do not have a legally binding character per se  but their purpose is very important:  to strengthen cooperation among the Contracting Parties for the development of a regime of liability and compensation for damage resulting from pollution of the Mediterranean  and to facilitate the adoption of relevant national legislation by the Contracting Parties   ( Guideline  A 3).

The 2008 Guidelines which apply to liability and compensation for all sources of pollution damage contain recommendations on the damage to be covered, liable person, liability standard, limitation of liability and financial security.

As far as damage is concerned, the Guidelines provide for traditional[26] and environmental damage,[27] the latter following the concept of the European Community (EC) Directive 2004/35/CE.[28] It is important to note that a common understanding of the term “environmental damage” as defined in Article 2 of Directive 2004/35/CE has been provided in  the EU Guidelines,  adopted in 2021. [29] The adoption of the 2021 EU guidelines is therefore very important for the standardisation of the judicial practice in the EU and in all Mediterranean states, as the 2008 Mediterranean Guidelines are based on the 2004 Directive. For the very important definition of environmental damage see more, in this paragraph below

The 2008 Mediterranean Guidelines channelled liability to the operator who is strictly liable and may be exonerated from liability in cases of acts or events which are totally beyond his/her control, such as force majeure, an act of war, hostilities, civil war, insurrection or an act of terrorism.[30]  The Guidelines provides for a limited liability (Guideline 24) and the eventual establishment of a compulsory insurance regime (Guideline 28).

The 2008 Guidelines emphasise that the Contracting Parties should explore the possibility of establishing a Mediterranean Compensation Fund to ensure compensation where the damage exceeds the operator’s liability, where the operator is unknown, where the operator is incapable of meeting the cost of damage and is not covered by a financial security or where the State takes preventive measures in emergency situations and is not reimbursed for the cost (Guideline 29).

The 2008 Guidelines are generally applicable to the liability for damage resulting from all sources of pollution (other than ship source), thus comprising also pollution from the offshore activities. However, having in mind ultra-hazardous nature of oil and gas exploration and exploitation from seabed and subsoil, certain recommendations need to be adapted to the nature of offshore activities. This includes primarily the exoneration grounds and, in our opinion, as mentioned above, force majeure should be limited to natural phenomena amounting to force majeure and acts of third persons should be limited or deleted as exoneration ground, as in the 1977 Convention.[31]  In addition, the model of the CLC/Fund 92 (see supra) should be followed, i.e. the Fund should be established financed by mandatory contributions from oil companies, thus transferring part of the economic burden to the oil industry.

 

5. Environmental Damage 

The 2008 Mediterranean Guidelines define “environmental damage” as a measurable adverse change in a natural or biological resource or measurable impairment of a natural or biological resource service which may occur directly or indirectly (Guideline D.8). This definition is based on Article 2, para.2 of the EC Directive 2004/35/CE.[32]

The 2021 EU Guidelines, which aim to provide a common understanding of the term “environmental damage” from the 2004 Directive, highlight the four basic concepts found in the definition of ‘damage’, namely. : the material scope of what is affected, i.e. natural resources and natural resource services;  the concept of adverse effects, i.e. adverse changes and impairments;  the scope of these adverse effects, i.e. measurable ones and the ways in which these adverse effects can occur, i.e. directly or indirectly (para.41).

With regard to material scope, the definition of ‘damage’ refers to two concepts which are  also defined in the Directive, namely ‘natural resource’ and ‘natural resource service’. ‘Natural resource’ comprises three separate categories of resources, namely, protected species and natural habitats, water and land[33]. ‘Services’ and ‘natural resources services’ mean the functions performed by a natural resource for the benefit of another natural resource or the public.[34] The 2021 Guidelines stress that, by referring to the functions natural resources perform for each other, the 2004 Directive highlighted inter-dependencies of these different categories.[35]

With regard to adverse effects, the 2021 Guidelines stress that the definition of ‘damage’ relates to an ‘adverse change’ to a natural resource and to ‘impairment’ of a natural resource service. These adverse effects therefore relate to both the state of a natural resource and the beneficial functions performed by the natural resource for both other natural resources and people (para.43).

 

For the definition of ‘damage’ to apply, adverse changes and impairment must be ‘measurable’. Measurable means that damage needs to be capable of quantification or estimation, and that the situation before and the situation after a damaging occurrence must be capable of being meaningfully compared (para.44).

 

As far as the compensation for environmental damage is concerned, Mediterranean Guideline D.10 provides that compensation should include a) costs of activities and studies to assess the damage; b) costs of preventive measures including measures to prevent a threat of damage or an aggravation of damage;  c) costs of measures undertaken or to be undertaken to clean up, restore and reinstate the impaired environment, including the cost of monitoring and control of the effectiveness of such measures; d) diminution in value of natural or biological resources pending restoration; e) compensation by equivalent if the impaired environment cannot return to its previous condition.

The activities referred to in points (a) to (c) can be expressed in monetary terms and do not represent a difficulty. In situations mentioned in paras d) and e) the framework envisaged in the 2004 Directive, Annex II, must be followed in order to choose the most appropriate measures to ensure the remedying of environmental damage.  According to Article 1 of the Annex II remedying of environmental damage, in relation to water or protected species or natural habitats, is achieved through the restoration of the environment to its baseline i.e. pre-pollution condition by way of primary, complementary and compensatory remediation. Primary remediation is any remedial measure purpose of which is to return the damaged natural resources and/or impaired services to, or towards, baseline condition, viz. condition that would have existed if the damage had not occurred. If primary remediation does not result in fully restoring the damaged natural resources and/or services, complementary remediation, viz., any additional remedial measure, should be taken to accomplish full restoration. Compensatory remediation is any action taken to compensate for interim losses of natural resources and/or services that occur from the date of damage occurring until primary remediation has achieved its full effect;

In practice, different approaches could be observed.

Conventions relating to liability for pollution of the marine environment, such as the CLC/Fund 92 mentioned above, do not provide for the full compensation of the damage to the marine environment. The Conventions only recognise compensation for the reasonable costs necessary to restore the marine environment to its pre-pollution state, thus not allowing compensation for pure environmental damage or impairment of ecosystem services. Similar schemes have been adopted for comparable risks in the marine environment, namely the 1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea,[36] the 2001 Convention on Civil Liability for Bunker Oil Pollution Damage. [37]

Departures from the restrictive approach of the CLC/Fund 92 and the above-mentioned Conventions is visible in national and international jurisprudence, which tend to go further than that, i.e.to  comprise also  compensation for the impaired environmental services.

The best known national cases are linked to the Erika and Prestige ships, while at the international level, the 2018 International Court of Justice (ICJ) ruling in the case between Costa Rica and Nicaragua should be mentioned.

The ICJ stressed that “…damage to the environment, and the consequent impairment or loss of the ability of the environment to provide goods and services, is compensable under international law. Such compensation may include indemnification for the impairment or loss of environmental goods and services in the period prior to recovery and payment for the restoration of the damaged environment.”[38] It must be also mentioned that the UN Compensation Commission (UNCC)[39] already in 2005 considered that the pure environmental loss is in principle compensable under general international law.[40]

 

6. Conclusion

The growing number of offshore exploration and exploitation installations around the world increases the possibility of a severe accident and the adverse effects of oil pollution to fragile ecosystems and biodiversity, especially in the semi-enclosed regional seas where damage would be hardly reparable, given their physical characteristics and hydrodynamics. Therefore, prevention activities are very important, although pollution risk, owing to the ultra-hazardous nature of offshore drilling activities, cannot be completely eliminated.

In terms of prevention, only two regional protocols completely dedicated to the prevention and elimination of this source of pollution have so far been adopted, both of them under the UN Environment Program (UNEP)’s Regional Seas Program: the 1989 Protocol associated to the 1978 Kuwait Regional Convention for  Cooperation on the Protection of the Marine Environment from Pollution[41] and the the 1994 Protocol for the Protection of the Mediterranean Sea against Pollution resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil, associated with the 1976/1995 Barcelona Convention.[42]

Two regional conventions which deal with all sources of pollution contain detailed provisions on prevention of pollution from offshore activities in the annexes: Annex III to the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (the OSPAR Convention)[43] and Annex 6 of the 1992 Helsinki Convention on the Protection of the Marine Environment of the  Baltic Sea Area. [44]

Although all the above-mentioned regional legal instruments are very useful, the Mediterranean Offshore Protocol with its integrated approach to the prevention of pollution from offshore activities is still the most systematic existing legal instrument devoted to the prevention of this source of pollution. The implementation of the Protocol was made easier for the parties by the adoption of the Offshore Action Plan in 2016.

Given the ultra-hazardous nature of the offshore drilling and the possibility of an incident even if all precautionary measures are taken, the existence of the appropriate liability regime for this source of pollution is also very important for the victims. The 2008 Mediterranean Guidelines for the Determination of Liability and Compensation for Pollution Damage, based on the 2004 EC Directive, lay down satisfactory foundation for building modern system of liability for injurious consequences of offshore drilling in the form of the binding instrument. The 2008 Guidelines apply to all sources of pollution but the model of liability they provide for can  be adapted to specific characteristics of offshore drilling and each source of pollution, through minor changes to exoneration grounds, limitation of liability, etc. In such adjustments, the definition of environmental damage from the 2008 Guidelines should remain unchanged, since it includes compensation for the loss of environmental services, which is still one of the main goals to be achieved nationally and internationally.

 

ENDNOTES

[1] Blowout is a flow of oil and gas from an oil well when the pressure control systems fail, which is not always controlable.

[2] First report was delivered in 1980 by the first Special Rapporteur QUENTIN BAXTER, R.Q. See Yearbook of the International Law Commission  (hereinafter: YBILC), 1980.

[3] See Report of the International Law Commission on the Work of forty-eight session, 6 May-26 July, 1996, General Assembly, Official Records, Fifty First Session, Supplement No.10 (A/51/10), (hereinafter: Report 1996), Annex 1, p.101.

[4] YBILC 1997, Volume II, Part two, p.59.

[5] Report 2001, p.366.

[6] Report 2006, p.101.

[7] The 1969 CLC was replaced by the 1992 Protocol and the 1971 Fund Convention was amended by the 1992 Protocol, see texts on https://iopcfunds.org/uploads/tx_iopcpublications/Text_of_Conventions_e_01.pdf

[8] Consequently, it comes into operation when the shipowner is insolvent, when the total of the claims exceeds the limit of the shipowner’s liability and when the shipowner is exonerated from liability.

[9] See texts on https://iopcfunds.org/uploads/tx_iopcpublications/Text_of_Conventions_e_01.pdf

[10] Similar schemes have been adopted for comparable risks to the marine environment. In this connection, mention should be made of the provisions of the 1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea 1996 (amended in 2010, text on https://cil.nus.edu.sg/rp/il/pdf/2001%20International%20Convention%20on%20Civil%20Liability%20for%20Bunker%20Oil%20Pollution%20Damage-pdf.pdf

and the 2001 Convention on Civil Liability for Bunker Oil Pollution Damage  (text on https://cil.nus.edu.sg/rp/il/pdf/2001%20International%20Convention%20on%20Civil%20Liability%20for%20Bunker%20Oil%20Pollution%20Damage-pdf.pdf )

[11] E.g. in Deepwater Horizon Oil Spill accident in 2010 round 4, 900.000 barrels of oil (round 700.000 tons) were leaked into the Gulf of Mexico (see Deepwater Horizon oil spill | Summary, Effects, Cause, Clean Up, & Facts | Britannica).

[12] See text on http://www2.ecolex.org/server2neu.php/libcat/docs/TRE/Full/En/TRE-000434.txt

[13] It has been argued for a long time that ultrahazardous activities should involve absolute liability, see e.g.  comment in California Law Review, Vol, 37, 1949, p.269 et seq    in fulltext.pdf .

[14] International Maritime Organization IMO) , Legal Committee,  LEG 99/14 24 April 2012, para.13.1. See also Comité Maritime National (CMI) document,  https://comitemaritime.org/wp-content/uploads/2018/05/Questionnaire.pdf

[15] Arguments of Brazil, International Maritime Organization, Legal Committee,  LEG 99/14 24 April 2012,  , para.13/2.

[16] See IMO, Legal Committee, 104th session, 26-28 April 2017.

[17]  The OPOL Agreement text see at https://www.opol.org.uk/agreement. At the beginning the OPOL included only operators from the UK, and eventually the list of states of origin of the operators widened (see Clause I, 4). The facility must be situated within the jurisdiction of states of origin, excluding the Baltic and the Mediterranean.

[18]   Clause IV, 1. ibid. Exoneration grounds are numerous: war clause, vis maior, intentional act of third party, negligence or other wrongful act of government or other authority and intent or negligence of claimant, Clause IV, B, ibid.

[19]  125,000,000 for pollution damage and 125,000,000 for remedial measures., Clause IV, A, 1 and 2, ibid.

[20] See text BarcelonaConvention_Consolidated_eng.pdf

[21] This author took part at the Brijuni Meeting as the representative of Croatia. The author of the basic text on Liability and Compensation submitted by the MAP/UNEP Secretariat to the 1997 Brijuni Meeting was Professor EVANGELOS RAFTOPOULOS, see Reporting Paper, MAP/UNEP (UNEP(OCA)/MED WG.117/3), 1997, para.8.

[22] Exoneration grounds provided in the 1997 Draft were very wide: acts of war or terrorism, natural phenomena of irresistible character, acts of a third party with intent to cause damage, pollution of tolerable level in light of local circumstances, compliance with compulsory measures of public authority, dangerous activities taken lawfully in the interest of a person suffering a damage, ibid., p.12.

[23] See doc. UNEP(OCA)/MED WG.117/3 of 1 July 1997.

[24] SCOVAZZI, T.  „The Mediterranean Guidelines for the Determination of Environmental Liability and Compensation: TheNegotiation for the Instrument and Question of Damage that can be Compensated.”, Max Planck Yearbook  of United     Nations Law, Vol.3, 2009,  p.194-197 ,  http://www.mpil.de/files/pdf2/mpunyb_05_scovazzi.pdf

[25] UNEP (DEPI)/MED IG. 17/10, Annex 5, p.133.

[26] “Traditional damage” comprises, according to the Guidelines: loss of life or personal injury;  loss of or damage to property other than property held by the person liable;  loss of income  1997directly deriving from an impairment of a legally protected interest in any use of the marine environment for economic purposes, incurred as a result of impairment of the environment, taking into account savings and costs; any loss or damage caused by preventive measures taken to avoid damage. (Guideline 14).

[27] For definition of environmental damage, see infra.

[28] Official Journal L 143 , 30/04/2004 P. 0056 – 0075.  EUR-Lex – 3004L0035 – EN (europa.eu).

[29] Guidelines providing a common understanding of the term ‘environmental damage’ as defined in Article 2 of Directive 2004/35/CE of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage, 2021/C 118/01,  C_2021118EN.01000101.xml (europa.eu)

[30] Mediterranean Guidelines 17-23.

[31] See supra.

[32] It must be mentioned that the Mediterranean Guidelines added the term biological.

[33] Para.12 of Art.2 of the 2004 Directive.

[34]  Ibid., para.13. of Article 2.

[35]  Para.42 explains that e.g. a salt marsh (a type of natural habitat) may protect coastal land; surface water (a category of water) may support protected species of wild bird; land may filter out pollutants which might otherwise reach groundwater (a category of water). The definition of ‘natural resource service’ also refers to natural resource functions which benefit people.

[36]    The 1996 Convention was amended by the 2010 Protocol. The text of the Convention as amended by the Protocol see at the following link:

http://www.hnsconvention.org/fileadmin/IOPC_Upload/hns/files/2010%20HNS%20Convention%20Consolidated%20text_e.pdf

[37] Text on https://cil.nus.edu.sg/rp/il/pdf/2001%20International%20Convention%20on%20Civil%20Liability%20for%20Bunker%20Oil%20Pollution%20Damage-pdf.pdf

[38] Ibid., para.42, p.28. See also paras. 41 and 43, at p.28-29.

[39] UNCC was created in 1991 as a subsidiary organ of the Security Council under the resolution 687 (1991) to process claims and pay compensation for losses and damage suffered as a consequence of the iraqui invasion and ocuppation of Kuwait.

[40]  UN Security Council,  UN Compensation Commission, Governing Council, Report and recommendations made by the panel of commissioners concerning the fifth instalment of “f4” claims, S/AC.26/2005/10, 30 June 2005,  paras. 44-58.

[41] See text of the Protocol concerning Marine Pollution resulting from  Exploration and Exploitation of the Continental Shelf on http://memac-rsa.org/

[42] Text https://wedocs.unep.org/rest/bitstreams/2336/retrieve

[43] Text on https://www.ospar.org/convention/text..

[44] Text on http://www.helcom.fi/Documents/About%20us/Convention%20and%20commitments/Helsinki%20Convention/1992_Convention_1108.pdf.