Problem Exercise: The Brent Spar

Below are treaties that might be relevant to the Brent Spar controversy. The agreements have been adopted by the States involved unless otherwise noted.

The 1958 Convention on the High Seas (not in force)

Article 24

Every State shall draw up regulations to prevent pollution of the high seas by the discharge of oil from ships or pipelines or resulting from the exploitation and exploration of the seabed and its subsoil, taking account of existing treaty provisions on the subject.Article 25(1) Every State shall take measures to prevent pollution of the seas from the dumping of radioactive waste, taking account any standards and regulations which may be formulated by the competent international organizations. The 1958 Convention on the Continental Shelf (not in force)

Article 5(1)

The exploration of the continental shelf and the exploitation of its natural resources must not result in any unjustifiable interference with navigation, fishing or the conservation of the living resources of the sea, nor result in any interference with fundamental oceanographic or other scientific research carried out with the intention of open publication. ***Article 5(5) Due notice must be given of the construction of any such installations, and permanent means for giving warning of their presence must be maintained. Any installations which are abandoned or disused must be entirely removed. London Convention, 1972 (text in force at time of Brent Spar incident)

Article III. 1(a)

"Dumping" means:

(ii)any deliberate disposal at sea of vessels, aircraft, platforms or other man-made structures at sea.* * * Article IV 1. In accordance with the provisions of this Convention, Contracting Parties shall prohibit the dumping of any wastes or other matter in whatever form or condition except as otherwise specified below: a. the dumping of wastes or other matter listed in Annex I is prohibited;
b. the dumping of wastes or other matter listed in Annex II requires a prior special permit; * * *
Annex I

3. Cadmium and cadmium compounds* * *

9. This Annex does not apply to wastes or other materials (e.g. sewage sludges and dredged spoils) containing the matter referred to in paragraphs 1-5 above as trace contaminants. Such wastes shall be subject to the provisions of Annexes II and III as appropriate.* * * Annex II

A. Wastes containing significant amounts of the matters listed below:

arsenic
lead
copper and their compounds
zinc

C. Containers, scrap metal, and other bulky wastes liable to sink to the sea bottom which may present a serious obstacle to fishing or navigation.

Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft (Oslo Convention), 1972

Article 6

No waste containing such quanitites of the substances and materials listed in Annex II to this Convention as the Commission . . . shall define as significant, shall be dumped without a specific permit in each case from the appropriate national authority or authorities. When such permits are issued, the provisions of annexes II and III shall be applied.* * *

Annex II

1. The following substances and materials requiring special care are listed for the purposes of Article 6:* * *

(b) Containers, scrap metal, tar-like substances liable to sink to the sea bottom and other bulky wastes which may present a serious obstacle to fishing or navigation.
2. The substances and materials listed under paragraph 1(b) above should always be deposited in deep water.* * *

4. When, in the application of the provisions of annexes II and III, it is considered necessary to deposit waste in deep water, this should be done only when the following two conditions are both fulfilled:

(a) that the depth is not less than 2,000 metres, and
(b) that the distance from the nearest land is not less than 150 nautical miles.

United Nations Convention on the Law of the Sea, 1982

Article 60(3)

Any installations or structures which are abandoned or disused shall be removed to ensure safety of navigation, taking into account any generally accepted international standards established in this regard by the competent international organization. Such removal shall also have due regard to fishing, the protection of the marine environment and the rights and duties of other States. Appropriate publicity shall be given to the depth, position and dimensions of any installations or structures not entirely removed. The Convention for the Protection of the Marine Environment of the North East Atlantic (OSPAR), 1992

Article 1(f) "dumping" means

(i) any deliberate disposal in the maritime area of wastes or other matter:
(1) from vessels or aircraft;
(2) from offshore installations* * *
(ii) any deliberate disposal in the maritime area of
(1) vessels or aircraft;
(2) offshore installations and offshore pipelines.* * *

Article 1(l) "offshore installation" means

any man-made structure, plant or vessel or parts thereof, whether floating or fixed to the seabed, placed within the maritime area for the purpose of offshore activities.* * * Article 4 Pollution By Dumping or Incineration The Contracting Parties shall take, individually and jointly, all possible steps to prevent and eliminate pollution by dumping or incineration of wastes or other matter in accordance with the provisions of the Convention, in particular as provided for in Annex III. Article 5 Pollution from Offshore Sources The Contracting Parties shall take, individually and jointly, all possible steps to prevent and eliminate poluution from offshore sources in accordance with the provisions of the Convention, in particular as provided for in Annex III.* * *

Annex III

Article 8

No placement of a disused offshore installation or a disused offshore pipeline in the maritime area for a purpose other than that for which it was originally designed or constructed shall take place without the authorization or regulation by the competent authority of the relevant Contracting Party. Such authorisation or regulation shall be in accordance with the relevant applicable criteria, guidelines and procedures adopted by the Commission in accordance with subparagraph (d) of Article 10 of this Annex. This provision shall not be taken to permit the dumping of disused offhsore installations or disused offshore pipelines in contravention of the provisions of this Annex. The relevant provisions of the International Maritime Organization’s (IMO) guidelines and standards call for any installation in water of less than 75 meters to be totally removed. For installations in deeper waters, or having a substructure weight in excess of 4,000 tons, the IMO calls for the topsides to be removed and the platform jacket to be toppled (legs blown up in situ) to leave 55 meters of clear water above.

Rio Declaration on Environment and Development, 1992

Principle 16

National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of of pollution, with due regard to the public interest and without distorting international trade and investment.