Offshore Oil and Gas Development in the Arctic under International Law

Risk and Responsibility


Offshore Oil and Gas Development in the Arctic under International Law explores the international legal framework for hydrocarbon development in the marine Arctic. It presents an assessment of the careful balance between States’ sovereign rights to their resources, their obligations to uphold the rights of Arctic inhabitants and their duty to prevent injury to other States. It examines the rights of indigenous and other Arctic populations, the precautionary approach, the environmental impact assessment and the duty to monitor offshore hydrocarbon activities. It also analyses the application of the international law of responsibility in the event that the State fails to meet its primary obligations in the absence of a State’s wrongful conduct.

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Rachael Lorna Johnstone, S.J.D. (2004), University of Toronto, is Professor of Law at the University of Akureyri, Iceland. She has published widely on state responsibility, human rights and Polar law.
"All together, this book is strongly recommended. The discussion of how the rules of State responsibility and liability apply in the context of the primary rules, discussed in the first part of the book, is exceptionally well done. Although the title implies that it is a narrow study, it is not. The book raises important questions that should be relevant to anyone who is interested in international law, whether they are students, academics or practitioners. In summary, buy the book, read it and then read it again."

Preface XI
Acknowledgments XIII
Table of Acronyms XIV
Table of Cases XVI
Table of Treaties XXIV

PART 1 Arctic Offshore Hydrocarbons and International Environmental Law

1 Introduction 3
1.1 Governance, Development and the Right to Development 4
1.2 A Legal Approach 5
1.3 Outline of the Book 5
2 Drilling in the Arctic 7
2.1. Defining the Arctic 7
2.2 Offshore Hydrocarbon Resources 9
2.3 Vulnerability in the Arctic 11
2.4 Time 14
3 Identifying International Environmental Law 15
3.1 Sources of Law 15
3.2 Legal Norms 20

PART 2 The Obligations of States to Protect the Arctic Marine Environment

4 The Right to Resources and the No Harm Principle 27
4.1 Permanent Sovereignty over Natural Resources and the Right to Exploit Them 29
4.2 The No Harm Principle 30
4.3 Rights to Resources on the Continental Shelf 45
4.4 Duties to Protect and Preserve the Marine Environment 50
4.5 A New Instrument for the Arctic Eight? 53
4.6 Striking the Balance between the Right to Exploit Resources and the No Harm Principle 54
5 Human Rights and the Rights of Indigenous Peoples 56
5.1 Protecting the Environment through a Human Rights Lens 56
5.2 Human Rights in the Marine Arctic 60
5.3 Relevant Instruments, their Mechanisms and Status 63
5.4 The Rights of Indigenous Peoples with respect to Offshore Oil and Gas 72
5.5 Human Rights and Offshore Oil and Gas 90
5.6 Transboundary Human Rights Claims 100
5.7 Observations on Indigenous and Human Rights with respect to Offshore Hydrocarbon Activities in the Marine Arctic 103
6 Caution and Precaution 105
6.1 The Content of the Precautionary Approach 106
6.2 The Relationship between Prevention and Precaution 110
6.3 The Contemporary Status of the Precautionary Approach 112
6.4 Core Elements of the Precautionary Approach 129
6.5 Observations on the Precautionary Approach for Hydrocarbon Activities in the Marine Arctic 131
7 The Environmental Impact Assessment 134
7.1 EIA and TEIA Frameworks of Potential Application in the Marine Arctic 136
7.2 A Minimum Core for an Internationally Acceptable EIA for Hydrocarbon Activities in the Marine Arctic 163
7.3 Implications of the EIA or the Failure to Conduct it Properly 174
7.4 Observations on the EIA for Hydrocarbon Activities in the Marine Arctic 176
8 Monitoring and Follow-Up 179
8.1 The Duty to Monitor Environmental Impacts 179
8.2 Human Rights Monitoring 184
8.3 Observations on Monitoring and Follow-up of Impacts from Hydrocarbon Activities in the Marine Arctic 185

PART 3 Responsibility and Liability

9 Legal Consequences of Failures to Protect the Environment 189
10 State Responsibility for Wrongful Conduct 194
10.1 For Whose Conduct does the State Bear Responsibility? 194
10.2 For What Conduct does the State Bear Responsibility? 198
10.3 To Whom does the State Bear Responsibility? 211
10.4 What are the Consequences of State Responsibility in International Environmental Law? 225
10.5 Observations on State Responsibility for Hydrocarbon Activities in the Marine Arctic 244
11 Liability for Damage in the Absence of a State’s Wrongful Conduct 247
11.1 Treaty-Based Civil Liability Regimes 250
11.2 Who is Liable for Environmental Damage? 260
11.3 For What is the Operator Liable? 261
11.4 To Whom is Reparation Owed? 262
11.5 What are the Consequences of International Liability? 263
11.6 Observations on Liability for Hydrocarbon Activities in the Marine Arctic 265

PART 4 Conclusions

12 The Extent and Limitations of International Law in the Marine Arctic 271
12.1 The No Harm Principle 272
12.2 Responsibility and Liability 276
12.3 Final Observations 279
Bibliography 281
Index 309
Academic: environmental law, human rights law, indigenous rights, natural resources law, law of the sea, State responsibility and liability, environmental studies.
Other: foreign ministries, ministries of environment and ministries of industry; policy makers; practitioners of public international law, especially State responsibility and liability.
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