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UNCLOS’ PROTECTION OF THE MARINEENVIRONMENT IN TRANSBOUNDARY OIL SPILL
POLLUTION: CASE STUDY OF MONTARAOILSPILL
Nabila Nadiansyah11/314209/HK/18750
International Law of the SeaUniversitas Gadjah Mada
2015
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UNCLOS’ PROTECTION OF THE MARINE ENVIRONMENT INTRANSBOUNDARY OIL SPILL POLLUTION: CASE STUDY OF MONTARA
OILSPILL Nabila Nadiansyah
International Law of the Sea, Universitas Gadjah Mada
I. INTRODUCTION
In 21 August 2009, an uncontrolled release of
hydrocarbons occurred at the Montara Wellhead Platform
of the West Atlas mobile drilling unit under the
Montara Development Project owned and operated by
PTTEP Australiasia Pty Ltd (‘PTTEPAA’), an Australian
subsidiary of a Thai company PTT Exploration and
Production Public Company Limited (PTTEP). Oil were
discharged from the well between 1,000-1,500 barrels
per day.1 The leak continued for 74 days before an
intervention were successful in its fifth attempt by
pumping mud in to shut the well. In total an estimate
of 30,000 barrels of oil were spilled and oil sheen
affected an observable total surface area of 90,000
square kilometers.2 Although small in comparison with
the Gulf of Mexico spill that discharged up to 70,000
barrels of oil daily, the Montara oil spill is the
biggest oil spill in Australian history and the first1 Hart, P. (2015). The Oil Drum | Montara Oil Spill: "A failure of sensible oilfield practice". [online] Theoildrum.com. Available at: http://www.theoildrum.com/node/7193 [Accessed 20 Jun. 2015].2 Dewi, S. (2012). Probe on Montara oil spill urgent: Experts. The Jakarta Post, [online] p.4. Available at: http://www.thejakartapost.com/news/2012/07/27/probe-montara-oil-spill-urgent-experts.html [Accessed 19 Jun. 2015].
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transboundary oil spill that had ever affected
Indonesian territory.
After various reports of coastal communities in Nusa
Tenggara Timor (NTT) on degradation of marine
resources, Indonesia claimed that it deserved
compensation and reparations for the damage caused by
the discharged oil from the Montara well. Due to
failures after efforts to both the negotiations with
PTTEPAA and diplomatic routes with the Australian
government, recently Indonesia released that they are
preparing to bring a class-action lawsuit over the
dispute for compensation and reparations to the NTT
communities. Until now it is unclear whether the claim
will be brought against the Australian government or
the PTTEPAA, and what means are going to be used to
bring the claim. A trnsboundary oil spill deriving
from offshore drilling activities are rare and
regulations are still sparse. Keeping in mind the
dependence of the society to oil, it is important to
be able to understand how the existing international
laws and regulations will apply in disputes like this.
The United Nations Convention on Law of the Sea or
also known as the UNCLOS3, sets out the general
framework for all marine and maritime activities,
including specific provisions on the marine
environment protection from pollution. Both of
Australia and Indonesia are parties to the Convention;
3 1982 United Nations Convention on the Law of the Sea, adopted 10 December 1982 [entered into force 16 November 1994]
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therefore the UNCLOS, amongst others, govern over
marine disputes between the two countries. This paper
aims to explore the UNCLOS’ environmental protection
clause in its applications to the Montara oil spill by
assessing Australia’s conduct in the case and its
obligation as a state party of the UNCLOS, and explore
whether the Convention provides means for Indonesia to
seek for compensation of damages from the spill. The
UNCLOS could not apply directly to legal entities nor
it regulates on States obligation against legal
entities, therefore claims made by Indonesia based on
the UNCLOS will not be directed to PTTEPAA, as
initially desired, but Australia. This paper is a
humble attempt to understand how the UNCLOS’
protection of marine environment is applied in a
dispute of transboundary oil pollution in terms of
conduct prescribed in the UNCLOS for its State party,
in this case Australia, and how does compensation of
pollution regulated under the Convention.
II. LEGAL RESEARCH QUESTIONS
Having said that, the paper is developed based on
these research questions:
1. Did Australia breach its obligations under the
UNCLOS for its conducts in the Montara oil spill?
2. Could Indonesia claim for compensation under the
UNCLOS for the damages to its marine environment
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from the transboundary oil pollution of the
Montara oil spill?
III.THE MONTARA OIL SPILL CASE a) Chronology of the Blowout
The Montara oil spill occurred after a blowout of
the H1 well of the Montara wellhead platform in
August 2009. It is crucial to note that the Montara
oil spill were not an inevitable accident but,
according to the inquiry report, a disaster awaiting
to happen due to “failures of sensible oilfield
practice”.4 From the inquiry report it was clear that
PTTEPAA has neglected alarming symptoms and failed
to comply with minimum standards applied on oilfield
practices, eventually leading to the blowout to
occur.
Firstly the installation of the cement casing shoe
of the well were problematic. The PTTEPPA failed to
pressure test 95/8” cement casing shoe in accordance
to its own Well Construction Standards, This failure
inevitably led to the casing shoe of the well to be
compromised as it has substantially over-displaced
by fluid, resulting to a “wet shoe”.5 Despite the
Daily Drilling Report has communicated this problem,
4 Montara Commission of Inquiry, (2010). Report of the Montara Commission of Inquiry. [online] Canberra: Montara Commission of Inquiry, p.6. Available at:http://www.industry.gov.au/AboutUs/CorporatePublications/MontaraInquiryResponse/Documents/Montara-Report.pdf [Accessed 17 May 2015].5 Hart, P. (2015). The Oil Drum | Montara Oil Spill: "A failure of sensible oilfield practice". [online] Theoildrum.com. Available at: http://www.theoildrum.com/node/7193 [Accessed 20 Jun. 2015].
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the senior PTTEPAA personnel did not seem to see
this as an alarming condition and no remedies were
sought. The inquiry report further contends not only
there is an absence of evaluation on the
installations were sought but also the problem were
not complicated nor unsolvable with well known
potential remedies that are not costly.6 This shows
neglect of the PTTEPAA in their failure to
demonstrate a sensible oilfield practice.
The second error made by PTTEPAA leading to the
blowout is the fact that the 133/8” PCCC (Pressure
Containing Anti-Corrosion Caps) had never been
installed. The absence of PCCC had resulted to
corrosions of the threads of the 133/8” casing. This
then led to the removal of the 9 5/8” casing shoe.7
Ultimately, according to PTTEPAA’s operational
forecast, at this point the H1 Well is exposed to
the air without any secondary well control barrier
in place for 4 to 5 days, with sole reliance on an
untested primary barrier of the cemented 95/8” casing
show that had been the subject of significant
problems during its installations.8 The Blowout in
the H1 Montara Well occurred 15 hours later.
6 Montara Commission of Inquiry, (2010). Report of the Montara Commission of Inquiry. [online] Canberra: Montara Commission of Inquiry, p.6. Available at:http://www.industry.gov.au/AboutUs/CorporatePublications/MontaraInquiryResponse/Documents/Montara-Report.pdf [Accessed 17 May 2015].7 Ibid, p. 78 Ibid, p. 9.
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b) Response Chronology
As most oil spill response, the discharged oil
were managed through three main ways: application of
boom, spraying dispersants and skim surface oil.9
According to the Report released by the Australian
government, the Australian Maritime Safety Authority
(AMSA) began applying dispersant to “accelerate
natural evaporation and weathering of the oil”.10
Dispersant are chemical products that are applied
onto spilled oil to enhance dispersion process and
cause the formation of smaller droplets that are
less likely to resurface from the upper water
column.11 Although Dispersants are increasingly
common to be used in oil spills in the past years
and over 184,000 liters was used in the Montara
spill, its nature is proven to be problematic under
the UNCLOS. This subject would be further discussed
later in the paper.
In comparison to the use of dispersants, skimming
oil from the surface of the sea is inevitably a
safer method to clean up oil discharge.12 The
containment operations in the Montara oil spill used
9Australian Government Department of Resources, Energy and Tourism, (2010). Fact Sheet 3 : Montara Incident and Response. Canberra: Montara InquiryResponse, pp.1-2.10 Australian Government Department of Resources, Energy and Tourism,(2009). West Atlas - Minister Ferguson Inspect Response to Oil Spill. Canberra:Australian Petroleum News.11 Ramseur, J. (2010). Deepwater Horizon Oil Spill: the Fate of the Oil.Washington: DIANE Publisher, pp.9-10.12 Fingas, M. and Charles, J. (2001). The basics of oil spill cleanup. Boca Raton, Fla.: Lewis Publishers.
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boom and skimmer vessels to remove the oil. Even
with what is announced to be a successful
operations, skimming oil from the surface never
could reach a vast percentage of a spill. In the
Montara oil spill, a reported amount of
approximately 493,000 liters of oil were contained.13
This is not more than a tenth of the aggregate
amount of oil released to the sea from the spill.
Furthermore, in terms of marine environment
protection, another response done by the Australian
Government is in conjunction with the operator of
the Montara Wellhead Platform. PTTEPAA developed and
implemented a PTTEPAA funded long term environmental
monitoring plan. The plan were developed to ensure
the monitoring and research is conducted on the
spill’s effects to the marine environment.14. In
their report the Montara Commission of Inquiry finds
the Plan to be unacceptable as it placed the
national authority in a position where they are
unable to conduct monitoring prior the acceptance of
PTEPAA.15 This highlights a major gap in the
application of environmental legislation in the13 Montara Commission of Inquiry, (2010). Report of the Montara Commission ofInquiry. [online] Canberra: Montara Commission of Inquiry, p.6. Available at:http://www.industry.gov.au/AboutUs/CorporatePublications/MontaraInquiryResponse/Documents/Montara-Report.pdf [Accessed 17 May 2015].14Ibid. 15 Montara Commission of Inquiry, (2010). Report of the MontaraCommission of Inquiry. [online] Canberra: Montara Commission ofInquiry, p.6. Availableat:http://www.industry.gov.au/AboutUs/CorporatePublications/MontaraInquiryResponse/Documents/Montara-Report.pdf [Accessed 17 May 2015].
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Commonwealth waters and contends that the full
impact of the marine environment is unlikely to be
fully established.16
c) Bilateral Agreements on Jurisdictions in the Timor
Sea
The living and non-living resources of the Timor
Sea are governed by a patchwork of rights as a
result from Indonesia and Australia’s various
negotiations of the area. Among the various numbers
of agreements, the first agreements between the
countries were created to govern seabed boundaries.17
Subsequently more arrangements were concluded
producing other forms of treaties, such as the
Treaty on the establishment of Exclusive Economic
Zones (EEZ) boundaries known as the 1997 EEZ
Treaty18, and the special arrangements on fisheries
allowing permission for Indonesian traditional
16 Lyonns, Y. (2015). Transboundary Pollution from OffshoreActivities : A Study of the Montara Offshore Oil Spill. In: S.Jayakumar and T. Koh, ed., Transboundary Pollution : Evolving Issues ofInternational Law and Policy, 1st ed. Massachusetts: Edward EldgarPublishing, p.183.17 Agreement between the Government of the Commonwealth of Australiaand the Government if the Republic of Indonesia Establishing CertainSeabed Boundaries, concluded in 18 May 1971 (entered into force 9November 1983); Agreement between the Government of the Commonwealthof Australia and the Government if the Republic of IndonesiaEstablishing certain sea-bed boundaries in the area of the Timor andArafura seas, supplementary to the Agreement of 18 May 1971,concluded in 9 October 1973 (entered into force 8 November 1983).18 Treaty between the Government of Australia and the Government ofRepublic of Indonesia Establishing Exclusive Economic Zone Boundaryand Certain Seabed Boundaries, signed 14 March.
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fisherman entry to Australian EEZ.19 Furthermore
Australia has also concluded a treaty with East
Timor in 2002 in regards to the Timor Sea.20
From the many conclusions of treaties between
Indonesia and Australia, it is apparent that the
Timor Sea consists of a complicated establishment of
rights between the two countries in the governance
of resources of the Timor Sea. In some cases, in the
overlapping jurisdiction between the two countries,
each agreed to take rights over different resources.
Australia chose to sovereign rights over the seabed
resources in areas where there are overlapping
jurisdiction with Indonesia, while Indonesia agreed
to sovereign rights over the resources of the water
column above the seabed. Despite these complicated
division of sovereign rights between the two
countries over the Timor Sea, yet the satellite
imagery has clearly shown that the oil has expanded
past these questions of jurisdiction as it has
reached areas where Indonesia has sovereign rights
over both the sea bed and water column.
19 Memorandum of Understanding between the Government of Australiaand the Government of the Republic of Indonesia regarding theOperations of Indonesian Traditional Fisherman in the Areas of theAustralia Exclusive Fishing Zone and Continental Shelf, signed 7November 1974, accessed 10 June 2015 athttp://press.anu.edu/apem/boats/mobile_devices/apb.html 20 Timor Sea Treaty between the Governemnt of East Timor and theGovernment of Australia, signed 20 May 2002 (entered into force 2April 2003).
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IV. UNCLOS’ PRINCIPLES IN THE MARINE ENVIRONMENTPROTECTION AND AUSTRALIA’S OBLIGATION IN THE MONTARAOIL SPILL
Generally, the UNCLOS have governed both rights and
obligations under exploitation of resources through
offshore activities. Although UNCLOS recognizes the
general sovereign right of States to legally exploit
their marine resources, yet it limits such right with
an obligation to protect and preserves marine
environment.21 This puts the general obligation to
protect and preserves marine environment laid out in
Article 192 of the UNCLOS to have a higher standing
over the sovereign rights of states for its natural
resources. As economical interest in exploitation of
resources often clashes with the interest of
environment, the UNCLOS clarifies its position on which
interest shall prevail under the debate.
This position extends to the Convention’s position
in respect to State’s obligations in regards to
pollution of the marine environment. Article 194 of
UNCLOS asserts a general obligation for States to
“take, individually or jointly as appropriate, all
measures consistent with this Convention that are
necessary to prevent, reduce and control pollution of
the marine environment from any source”. Initially, the
general obligation “to prevent, reduce and control”
were vague but were then defined by the International
Court of Justice (ICJ) as an obligation of due21 Article 193 of UNCLOS
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diligence.22 The Advisory Opinion on Seabed Dispute
Chamber of the International Tribunal for the Law of
the Sea (ITLOS) on Responsibilities and Obligations of
States Sponsoring Persons and Entities with Respect to
Activities in the Area (‘Advisory Opinion on Seabed
Activities’) further strengthen and develop the due
diligence notion outlined by the ICJ.23 In the notion of
due diligence, the Advisory Opinion on Seabed
Activities clarifies ‘due diligence’ not as an
obligation to achieve but as a variable concept to
deploy adequate means, to exercise best possible effort
and do the outmost to obtain the result.24 It is
undeniable that in every oil spill there will always be
a certain degree of damage to the marine environment,
however under the UNCLOS a State’s obligation is
assessed in whether there are best efforts by the State
dedicated to preventing, minimizing or managing the
damage.
In prevention, the UNCLOS asserts the importance of
preventive measures and contingency planning in the
context of offshore installations and devices used in
exploration or exploitation of the natural resources of
the seabed and subsoil.25 A collective development of
contingency plans to prevent pollutions and combating22 Pulp Mills on the River Uruguay (Argentina v. Uruguay) [2010](International Court of Justice (ICJ)).23 International Tribunal for Law of the Sea, (2015). Responsibilities andObligations of States Sponsoring Persons and Entities with respect to Activities in the Area,Advisory Opinion, para 117. 24 Ibid, para. 11025 Article 199 of UNCLOS.
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pollutions impacts to the environment were also
repeatedly prescribed under the UNCLOS.26 Australia is
a State Party to both the 1990 International Convention
on Oil Pollution, Preparedness, Response and
Cooperation,27 and the 2000 Protocol on Preparedness,
Response and Cooperation to Pollution Incidents by
Hazardous and Noxious Substances (HNS).28 In order to
fulfill their commitments under these instruments,
Australia had developed their National Plan to Combat
Pollution of the Sea by Oil and other Noxious and
Hazardous Substances (‘National Plan’).29 The National
Plan is a national integrated government and industry
organizational framework that aims to enable effective
preparedness and response to marine pollution
incidents. Australia has demonstrated participation in
a collective effort to develop a response mechanism to
oil pollution through the aforementioned international
instruments, which then were developed into the
domestic law as its National Plan. The UNCLOS sets the
obligation for States to “jointly develop and promote
26 Article 199, Article 208 (4) and (5), and Article 197 UNCLOS. 27 1990 International Convention on Oil Pollution, Preparedness,Response and Cooperation, Adopted on 30 November 1990 (entered intoforce 13 May 1995).28 2000 Protocol on Preparedness, Response and Cooperation toPollution Incidents by Hazardous and Noxious Substances (HNS),Adopted on 14 March 2000 (entered into force 14 June 2007). 29 NATIONAL PLAN: Australia’s National Plan to Combat Pollution ofthe Sea by Oil and Other Noxious and Hazardous Substances. (2007).1st ed. [ebook] Canberra: Australian Government. Available at:https://www.amsa.gov.au/forms-and-publications/environment/publications/NP-Reports/documents/Nationalplan_2007_Overview.pdf [Accessed 19Jun. 2015].
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contingency plans for responding to pollution incidents
in the marine environment”.30 Under this definition then
Australia has sufficiently demonstrated a fulfillment
of the obligation under Article 199 of the UNCLOS.
Another obligation under prevention is in regards
to conducting environmental assessment. States has the
obligation under the UNCLOS to assess the potential
effects of planned activities on the marine
environment, if there are reasonable grounds for the
State to believe such activities may cause substantial
pollution or significant changes to the marine
environment.31 The report of the assessment shall be
published and be made available to all States.32
Currently there are little certainty whether a
preliminary assessment were conducted by Australia for
the plans of the H1 well. There is, however, little
need to analyze Australia’s fulfillment to the
obligation of preliminary research under Article 206 of
UNCLOS as it relies entirely on discretion of the State
concern. Firstly, the reference to “reasonable ground”
and “as far as practicable” introduces elements of
discretion to the State concerned. In other words,
State has the power to judge whether an activity is
worth to be assessed, and the extent of it being
assessed.33 Secondly, the Article sets a high threshold
30 Article 199 UNCLOS 31 Article 206 UNCLOS32 Article 205 UNCLOS 33 Lyonns, Y. (2015). Transboundary Pollution from OffshoreActivities : A Study of the Montara Offshore Oil Spill. In: S.
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by outlining that the assessed activity potentially
causes substantial or significant damage to the marine
environment.34 Due to the characteristic of the Article
itself, there will not be a need to analyze preliminary
methods of research as its fulfillment relies heavily
on the State’s discretion.
In addition, prevention under the UNCLOS also
includes the obligation of Coastal States of the
offshore activities to adopt laws and regulation in
order to prevent, reduce and control pollution from
seabed activities,35 where such regulations to not to be
less effective than international rules, standards and
recommended practices and procedures.36 In regards to
Australia’s obligation to develop their domestic laws
and regulations in regards to offshore oil seabed
activities,37 shortcomings were not only observable in
the Montara oil spill but it was also one of incident’s
main triggers.
In their report, the Inquiry Commission has formally
contends that even though the primary responsibility to
maintain well integrity lies on PTTEPAA, yet the
Inquiry also finds the Northern Territory Department of
Resource’s (‘NT DoR’) regulatory regime was completely
Jayakumar and T. Koh, ed., Transboundary Pollution : Evolving Issues ofInternational Law and Policy, 1st ed. Massachusetts: Edward EldgarPublishing, p.162.34 The MOX Plant Case (Ireland v. United Kingdom) [2001] Case No. 10(International Tribunal for Law of the Sea).35 Article 208 UNCLOS36 Article 208 UNCLOS37 Article 208 UNCLOS
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inadequate.38 When PTTEPAA submitted an application to
suspend the H1 Well use of PCCCs in substitute of a
cement plug, it received preliminary approval within 30
minutes.39 This decision is dangerously deficient, as
according to its manufacturers PCCCs were not intended
to be used as barriers against blowout.40 This error
then contributed to the leak of H1 Well leading to the
spill. The error of the NT DoR in this respect is
merely a symptom of the fault under the Australian
government’s regulations for petroleum offshore
activities. The Inquiry Commission report expressed the
fact that the Australian government has less guidelines
and/or minimum standards in matters of offshore well
integrity issues than most States.41 The Commission
contends that the regulation did not succeed in
outlining a minimum requirement to ensure well safety
nor it has established an adequate reporting mechanism
in well operations and safety to the government.
Despite the clear deficiencies under Australia’s
regulations on well integrity maintenance, Australia is
not in breach of its obligations under the UNCLOS.
Under Article 208 of the UNCLOS, coastal states are
expected to implement nationally a minimum standard
38 Montara Commission of Inquiry, (2010). Report of the Montara Commission ofInquiry. [online] Canberra: Montara Commission of Inquiry, p.6.Available at:http://www.industry.gov.au/AboutUs/CorporatePublications/MontaraInquiryResponse/Documents/Montara-Report.pdf [Accessed 17 May 2015].39 Ibid, p. 16. 40 Ibid, p. 16. 41 Ibid, p. 17
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defined by internationally accepted rules, practices
and procedures vis-à-vis a development of appropriate
domestic law. The implementation is, however,
problematic. UNCLOS did not clarify on what constitutes
as an internationally accepted rules or procedures. It
is unclear on whether that entails a minimum number of
state ratifications or whether the ratification of
state in question is relevant at all.42 In the strictest
interpretation, it pertains the international
instruments under the International Maritime
Organization (IMO) framework. Under the IMO, currently
there are no standards in regards to oil pollution
prevention through well maintenance regulations.
Consequentially, Australia is not in breach of the
UNCLOS despite their futile adoption of an effective
national rules and regulation to prevent such incident
to have occurred.
The first obligations outlined under the UNCLOS
concerning response is the obligation for States to
notify other States it believes likely to be affected
by an imminent danger to its marine environment by
pollution.43 In this Article however the UNCLOS did not
mention that such pollution shall be within the
responsibility of the notifying states, it is merely
mentioned any states aware of an imminent threat to42 Lyons, Y. (2011). Offshore oil and gas in the SCS and the protection of the marineenvironment. 1st ed. [ebook] Singapore: Center International Law, NUS.Available at:http://cil.nus.edu.sg/wp/wp-content/uploads/2010/10/OG_SCS_CIL-Part206oct2011-1.pdf [Accessed 18 Jun. 2015].43 Article 198 UNCLOS
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another State’s marine environment from pollution has
to notify the threatened State. Again, this
demonstrated how the UNCLOS imposes a collective
obligation for States to be able to conserve the marine
environment beyond their jurisdiction. After the Spill
occurred, Australia had notified Indonesia on the
imminent threat of the oil spill from Montara well by
officially communicating that sheens of oil were
reaching Indonesia’s EEZ on September 2009.44 After the
notification, Indonesia sent one of its officials to
observe first-hand Australia’s response to the spill
and conduct a meeting between the Ministers of
Environment of the two States. 45 Although the product
of the meeting and visit is unclear, Australia has met
its international obligation under Article 198 of the
UNCLOS.
In terms of response to pollution from the seabed
offshore activities, the UNCLOS mainly outlined two
main actions to be taken by States, to reduce and
control pollution in accordance to Article 194 of the
UNCLOS. In addition to the objective of response laid
out in Article 194 of the UNCLOS, the best effort under
the due diligence elucidation of the Article by the ICJ
and the ITLOS applies in the matter of how response is
conducted. In the response of the Montara Oil Spill, as
44 Indonesia.embassy.gov.au, (2009). Indonesia: Montara Oil Spill -Australian Embassy. [online] Available at:http://indonesia.embassy.gov.au/jakt/mr09_086.html [Accessed 21 May2015].45 Ibid.
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aforementioned, Australia responded through application
of boom containment, vessel skimming and spraying of
dispersants. In a strict sense, Australia were able to
restrict movements of the oil through application of
boom,46 and reduce the oil pollution by 493,000 liters
through vessel skimmers.47 Essentially, other than the
three methods sought in this case, there are three
other methods to clean oil spills: in situ burning,
separation and decontamination.48 Skimming and use of
boom are the two most conventional methods often used
in similar circumstances. Although there are other
methods of cleaning oil available, without further
research it is impossible to determine whether the
methods used are the most effective in relations to the
water conditions, weather and nature of the oil. Until
such research are concluded, it is fair to determine
that there are satisfactory response efforts taken of
the Montara oil spill by the Australian government.
Unlike the two aforementioned methods of response to
cleaning the dispersed oil, the use of dispersant is
less straightforward under the UNCLOS. In response
efforts, the UNCLOS also regulates that efforts used to
not be in contradiction with the Convention.49 Unlike46 Montara Commission of Inquiry, (2010). Report of the Montara Commission ofInquiry. [online] Canberra: Montara Commission of Inquiry, p.6.Available at:http://www.industry.gov.au/AboutUs/CorporatePublications/MontaraInquiryResponse/Documents/Montara-Report.pdf [Accessed 17 May 2015].47 Ibid.48 Fingas, M. and Charles, J. (2001). The basics of oil spill cleanup. BocaRaton, Fla.: Lewis Publishers.49 Article 194 (4) UNCLOS.
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the two other methods, use of dispersants is
controversial as it deemed to be in contradiction to
Article 195 and Article 196 of the UNCLOS. As
aforesaid, dispersants is a chemical surfactant spill-
treating agents that promote the formation of small
droplets of oil that “disperse” from the water surface
to the water column.50 After a dispersant is applied, a
coffee-colored flume will appear as a sign that oil has
been successfully dispersed. Due to this nature of
dispersants, it is deem that dispersants do not reduce
pollution but merely transforms the pollution from oil
slick to flume, and transfers the damage from the water
surface to the water columns. Having said that, the
nature of dispersant is believed to be against the
prohibition on transfer of pollution’s damage from one
area to another or transform from one type to another.51
Although dispersants are less toxic today than it
was initially used in the late 1990s, yet it is
accepted that use of dispersant remains a trade-off
between toxicity to aquatic life with shoreline
environments and birds species.52 Due to its toxicity,
the nature of dispersant is in conflicting to the
obligation laid under Article 196 (1) of the UNCLOS,
which asserts States to not use technologies that may
cause significant and harmful changes to the
50 Fingas, M. and Charles, J. (2001). The basics of oil spill cleanup. BocaRaton, Fla.: Lewis Publishers.51 Article 195 UNCLOS 52 Fingas, M. and Charles, J. (2001). The basics of oil spillcleanup. Boca Raton, Fla.: Lewis Publishers. P. 132
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environment. Yet unlike the duty under Article 195 of
the UNCLOS, the obligation under Article 196 of the
UNCLOS mentions that the Article’s application
precludes the efforts of prevention, reduction and
control of pollution of the marine environment.53 In
other words, if the potentially damaging technology is
used to achieve obligation under Article 194 of the
UNCLOS then it is admissible. Some scholars have argued
the same applies to the contradiction with Article 195
of the UNCLOS by stating that the use of dispersant
shall be deemed admissible if it yields more
environmental benefit than harm.54
In the Montara oil spill, the Australian government
has published a press release formally declaring that
the 184,000 liters dispersant used underwent carefully
considerations and yields net environmental benefit.55
Net environmental benefit is when there are more
benefits obtained by applying the method than if the
method were not applied at all.56 To asses this, the
toxicity level of the dispersant applied is paramount.
A standard to measure toxicity for a product is its
53 Article 196 (2) UNCLOS54 Grant Wilson, Deepwater Horizon and the Law of the Sea: Was theCure Worse than the Disease?, 41 B.C. Envtl. Aff. L. Rev. 63 (2014),http://lawdigitalcommons.bc.edu/ealr/vol41/iss1/355Australian Maritime Safety Authority, (n.d.). Fact Sheet 5: Use ofDispersant. [online] Available at:http://www.industry.gov.au/AboutUs/CorporatePublications/MontaraInquiryResponse/Documents/FS_5%20_USE-OF-DISPERSANTS.pdf [Accessed 5 Jun.2015].56 IMO/UNEP Guidance Manual on the Assessment and Restoration ofEnvironmental Damage Following Marine Oil Spills. (2009). IMOPublishing, p.44.
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acute toxicity (i.e. short term dose considered on a
short-time period) to a standard species such as the
rainbow trout. This is one of the most common used
methods of testing amongst various others. A
substance’s “lethal concentration to 50% of a test
population” (LC50) is usually given in milligram per
liter (mg/L).57 The smaller the LC50 number, the more
toxic the dispersant. Although neither the method of
testing nor the exact LC50 number were disclosed,
according to the press release, the dispersant used had
scored “low toxicity” level from the toxicity test
applied and are all less toxic than the untreated oil
slick. Unless proven otherwise, based on statements of
the Australian government, it shall be concluded that
there is a net environmental benefit in the use of
dispersant in the Montara oil spill for the marine
environment of Australia.
V. RIGHTS OF INDONESIA IN THE MONTARA OIL SPILLS UNDER THE
UNCLOS
a. Case with Indonesia Timor
In relation to Indonesia, it is important to note
that the most of the dispersed oil is situated
approximately 134 nm from the Indonesian coastlines.58
The closest oil patch is observed 54 nm east of Roti57 Fingas, M. and Charles, J. (2001). The basics of oil spillcleanup. Boca Raton, Fla.: Lewis Publishers. P. 133. 58 Indonesia.embassy.gov.au, (2009). Indonesia: Montara Oil Spill -Australian Embassy. [online] Available at:http://indonesia.embassy.gov.au/jakt/mr09_086.html [Accessed 21 May2015].
22
Island. To respond to these oil slick patches, two
response Australian vessels were permitted entrance
to the Indonesian EEZ to conduct containment and
recovery operations using the application of a boom
and vessel skimmer on patches that were observable by
the aircraft.59 Australia later contends that
according to the Australian Maritime Safety Authority
(AMSA), the oil patches observable in Indonesia’s EEZ
poses no potential marine nor coastline environmental
threat.60 This fact is however contested, as after the
spill, reports indicates that coastal communities in
the Nusa Tenggara Timor of Indonesia have observed
degradation in their marine environments. Despite
Australia’s acknowledgement of the satellite imagery
of patches of oil crossing into Indonesia’s EEZ in 1
September 2009, Australia claims it to be “unlikely”
that any oil were to reach the Indonesian coastal
waters.61
For the alleged damage suffered from the Montara
oil spill, the Government of Indonesia claims US$2.4
billion in compensation to be paid by the PTTEPAA.62
This amount is derived from the claim that the Oil
Spill has reduced marine resources in forms of
59 Ibid.60 Ibid.61 Ibid. 62PTTEP, Montara Lessons Learned [online] available at:http://www.pttep.com/inc/download.aspx?files=./download/DocumentSSHE_ReportFile_24804.MONTARA%20Lessons%20Learned.pdf [Accessed on 9Jan. 2015].
23
oysters, seaweed stocks and fishes.63 This not only
causes a decrease in the income of the fishermen but
also an increase in the national fish prices, which
affects the whole population.64 Australia claimed to
have tested dead fishes and found no oil
contamination, however agreed to conduct further
testing.65 Until today, no further testing has yet
made public. In addition to the decrease to marine
resources, the communities of the coast of Nusa
Tenggara Timor have also experience skin diseases
which is suspected to also caused by the murky waters
from the dispersed oil flume from the Montara oil
spill.66 Unfortunately, negotiations efforts for
compensation and reparations conducted by the
Indonesian government with the PTTEPAA have been
unsuccessful.67 PTTEPAA position is that to date there
63 Poke, E. (2010). East Nusa Tenggara Fishermen Fear for FutureAfter Oil Spill. Jakarta Globe. [online] Available at:http://thejakartaglobe.beritasatu.com/archive/east-nusa-tenggara-fishermen-fear-for-future-after-oil-spill/ [Accessed 13 Apr. 2015].64 Lyonns, Y. (2015). Transboundary Pollution from OffshoreActivities : A Study of the Montara Offshore Oil Spill. In: S.Jayakumar and T. Koh, ed., Transboundary Pollution : Evolving Issues ofInternational Law and Policy, 1st ed. Massachusetts: Edward EldgarPublishing, p.162.65 Indonesia.embassy.gov.au, (2009). Indonesia: Montara Oil Spill - Australian Embassy. [online] Available at: http://indonesia.embassy.gov.au/jakt/mr09_086.html [Accessed 21 May 2015].66 James, F. (2014). Montara oil spill: Fishermen's lawyer calls forinvestigation into reports of skin disease. ABC News. [online]Available at: http://www.abc.net.au/news/2014-08-21/montara-oil-spill/5685842 [Accessed 11 Mar. 2015].67 Roberts, G. (2014). Montara oil spill: Indonesia requestsAustralia's cooperation on resolving dispute over impact on coastalcommunities. ABC News. [online] Available at:http://www.abc.net.au/news/2014-09-29/indonesia-pleads-for-
24
are no verified, valid scientific evidence presented
to them in support of the claims made by Indonesia,
therefore PTTEPAA does not believe it has any
obligations to bring negotiations forward.
Due to the failure, Indonesia sent a formal letter
to the Australian Government to ask for assistance in
relation to dealing with the oil spill effects by
aiding negotiations with the PTTEPAA.68 Australia’s
position to the claim seems to be similar to PTTEPAA.
Australia’s Foreign Minister contends that Australia
could not do much in aiding the negotiations.
Although further recommendations were actually made
by the Australian government on alternatives for
Indonesia’s claim, under Australian Law Indonesian
victims have the onus of proving their losses in
order to justify any awards of compensatory damage.69
Due to the two failures, several parties are
preparing a class action lawsuit to get compensation
and reparation to the communities in Nusa Tenggara
Timor. Although questions surrounding whether the
damages experienced by Indonesia has a causal link
with the Montara oil spill is paramount in the
dispute, this question will not be discussed. This
australias-cooperation-on-montara-oil-spill/5777840 [Accessed 8 Jun.2015].68 Ibid. 69 Lyonns, Y. (2015). Transboundary Pollution from Offshore Activities : A Study of the Montara Offshore Oil Spill. In: S. Jayakumar and T. Koh, ed., Transboundary Pollution : Evolving Issues of International Law and Policy, 1st ed. Massachusetts: Edward Eldgar Publishing, p.162.
25
section will merely explore whether it is possible
under the UNCLOS for Indonesia to seek claim over
compensation and reparation over the alleged damages
caused by the Montara oil spill.
b. Legality of the Conduct of Australia to Indonesia in
the Montara Oil Spill
The UNCLOS asserts the obligation for States in
ensuring marine pollution under its jurisdiction to
not affect other State’s territory. UNCLOS outlines
the obligation for States to ensure “that activities
under their jurisdiction or control are so conducted
as to not to cause damage by pollution to other States
and their environment”, and “pollution arising from
incidents or activities under their jurisdiction or
control does not spread beyond the areas where they
exercise sovereign rights”. 70 This notion is an
extension of the core rule of international
transboundary pollution often referred as the Trail
Smelter principal, which contends that a state has the
responsibility for environmental damage extending
beyond its territorial limits.71 The principal is
further supported in the Corfu Channel case where the
ICJ incorporate the general principle of limited
territorial sovereignty, stating that it is “every
State’s obligation no to allow knowingly its territory
70 Article 194 (2) UNCLOS71 Trail Smelter Arbitration (United States v. Canada) [1941] (International Arbitral Awards).
26
to be used for acts contrary to the rights of other
States.”72 The Corfu Channel principle provides a more
authoritative statement of the principle previously
enunciated by the Trail Smelter arbitration to ensure
that States do not use territorial justification over
damages cause in other State’s territory.
In the Montara oil spill, the Australian Government
has breached the obligation under Article 194 (2) of
UNCLOS to the extent that the pollution had crossed to
the territory of another State. Obligation under
Article 194 (2) of the UNCLOS is not limited to the
movement of the pollution but it also primarily
obliges that States to not cause damage of pollution
beyond area under their jurisdiction. It is important
to note that the ‘due diligence’ elucidation of
‘prevent, reduce and control’ does not apply under
this obligation as it is not included in the wording
of Article 194 (2) of UNCLOS. Having said that,
despite clean up efforts done by Australia on
September 2009 were conducted in the best efforts, the
obligations is breached purely from the fact that
pollution crosses its territory and causes damage to
the affected State’s environment.
From the use of dispersant, it shall be deemed that
the government of Australia has in fact failed in
ensuring the oil pollution to not cause damage to the
environment of Indonesia and therefore is in breach of
72 Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania) [1948](International Court of Justice).
27
Article 194 (2) of the UNCLOS. As mentioned,
dispersant’s toxicity and effectiveness highly depends
on the surroundings of where it is used. The fact that
the dispersant used is not toxic and effective in the
Australian waters does not guarantee that it would be
the same for Indonesia’s marine environment where some
of the flume will inevitably reach. From the lesson
learned of the Deepwater Horizon oil spill, it is
realized that dispersants’ potential damage to a
marine environment is not yet fully understood and has
sparked wide concerns, specifically in respect to
several topics such as the endocrine disruptor
components of dispersants.73 This is why the IMO is
currently reviewing their Dispersant Guideline to
accommodate these newfound dangers. Despite the
threats on the use of dispersants to the marine
environment, Australia failed to neither consider the
impact of the dispersant used to Indonesia nor
communicate its decision to the government of
Indonesia.74 This demonstrates that the Australian
government has failed to assume its obligation under
Article 194 (2) of the UNCLOS in ensuring conducts of
73 Grant Wilson, Deepwater Horizon and the Law of the Sea: Was the Cure Worse than the Disease?, 41 B.C. Envtl. Aff. L. Rev. 63 (2014), http://lawdigitalcommons.bc.edu/ealr/vol41/iss1/374 Lyonns, Y. (2015). Transboundary Pollution from Offshore Activities : A Study of the Montara Offshore Oil Spill. In: S. Jayakumar and T. Koh, ed., Transboundary Pollution : Evolving Issues of International Law and Policy, 1st ed. Massachusetts: Edward Eldgar Publishing, p.162.
28
the state to not cause damage to other State’s
environment and thus, breached its obligations.
c. Could Indonesia claim for reparation/compensation on
the damage of the oil spill under the UNCLOS?
Even though the amount is disputed, all parties have
acknowledged that oil pollution resulting from the
Montara oil spill has reached the territories of
Indonesia’s Timor. Australia claimed only 2% of oil
reached Indonesia’s waters, while an analysis of
satellite imagery predicted 20% of oil is in
Indonesia’s waters.75 Due to the lack of research,
there is no definite amount of how much oil has passed
to Indonesian waters. As one of the consequence of the
use of dispersant is that it render the oil, which is
transferred to the water column, less visible or even
invisible on the satellite imagery that only catches
surface oil.76 Satellite imagery could not be solely
relied upon to assess the extent of the how far the
oil spill have affected Indonesian side of boundary.
Accordingly, water sampling and further more in depth
research is required to assess the extent of how far
the oil pollution have affected Indonesia.
75 Albers, J. (2014). Responsibility and Liability in the Context of TransboundaryMovements of Hazardous Wastes by Sea. Berlin, Heidelberg: Springer BerlinHeidelberg.76 Lyonns, Y. (2015). Transboundary Pollution from Offshore Activities : A Study of the Montara Offshore Oil Spill. In: S. Jayakumar and T. Koh, ed., Transboundary Pollution : Evolving Issues of International Law and Policy, 1st ed. Massachusetts: Edward Eldgar Publishing, p.180.
29
The lack of research conducted to review the damage
is one of the faced hurdles within the initial dispute
between Indonesia and Australia in the Montara oil
spill. The government of Australia claimed that
despite the formal letter sent by the Indonesian
Ministry of Environment to ask for assistance in
dealing with the crisis in Timor from the spill,
research could not be conducted as no permits were yet
to be issued by the Indonesian government.77 On the
other hand, the PTTEPAA refused to negotiate further
on compensation if no concrete effect of the spill is
established.78 In the UNCLOS, developing States such as
Indonesia is given a distinctive right to have
technical assistance for its efforts to protect its
marine environments including in preventing, reduction
and control of marine pollution.79 This is a right
under the UNCLOS that Indonesia could utilize in order
to get assistance to conduct research on the effect of
the Spill in Indonesia Timor, either from Australia or
from other willing UNCLOS state parties.
Although liability and compensation on pollution of
the marine environment is regulated under the UNCLOS,
yet its application is still problematic in the
present case. Article 235 (1) restates the general
principle of international law according to which
States are responsible for the fulfillment of their
77 Ibid, p.182.78 Ibid,p.183. 79 Article 202 UNCLOS
30
international obligation and, in case of non-
compliance, are liable in accordance to international
law. Although the Article upheld the obligation of
protection to the marine environment, it does not
provide any substantive rules of State Responsibility
but rather restating available legal consequences,
including of financial obligations, under customary
international law without containing any legal
rationale on its own.80 The same applies to paragraph 2
and 3 of Article 235 of the UNCLOS. Under Paragraph 2,
in connection with Article 229 of the Convention,
incorporates a “civil liability approach” where States
are obliged to ensure that recourse is available in
accordance with either civil liability conventions or
the domestic law.81 The same applies to Paragraph 3,
which specifies the obligation of States to implement
and further develop the international law relating to
State responsibility and liability to safeguard the
payment of adequate compensation. In summary, Article
235 of the UNCLOS does not provide a substantive rule
of State responsibility in which Indonesia could
solely rely their claims on yet it acknowledges that
there is State responsibility in terms of damage to
the marine environment.
Unfortunately, in UNCLOS there are no further rules
on state responsibilities where Indonesia could solely80 Nandan, S., Lodge, M. and Rosenne, S. (2002). United Nations Convention on the Law of the Sea, 1982. Hague: Martinus Nijhoff, p. 412.81 Mensah, T., Ndiaye, T., Wolfrum, R. and Kojima, C. (2007). Law of thesea, environmental law, and settlement of disputes. Leiden: Martinus Nijhoff.
31
base their compensation claims on in the case of
transboundary oil pollution. Another rule establishing
State responsibility in complying with the Convention
lies on Article 139 (2) of the UNCLOS, this however
applies exclusively on activities in the Area, which
is not relevant for the present considerations of the
case. Further, Article 232 of the UNCLOS also concerns
liability of States to the protection of the marine
environment in respect to, however, unlawful
enforcement measures that is not also the present
concern. Lastly, Article 262 of the UNCLOS discussed
responsibility and liability of States yet in the
context of marine scientific research, which also does
not apply in this case. In summary, it could be said
that the UNCLOS does not provide explicit rules of
State responsibility that are relevant to the
determination of liabilities of State with regards to
damages of transboundary oil pollution allegedly
suffered by Indonesia from the Montara oil spill.
VI. CONCLUSION
In regards to the conduct of Australia in the
Montara oil spill against the UNCLOS, it could be
observed that Australia did not breached the UNCLOS in
its prevention nor response efforts in the spill.
Although Australia’s conducts were not always ideal
nor sufficient technically yet they were able to
constantly adhere to the lenient obligations standards
32
of the UNCLOS within their territory. The same could
not be said, however, in regards to Australia’s breach
to Article 194 (2) of the UNCLOS in regards to have
let the pollution passed through other State’s
territory and cause alleged damage. Nevertheless, in
general, the findings are still lacking in field
research to able to conclusively determine whether
response methods were conducted in accordance with the
UNCLOS provisions.
From the analysis, it is clear that UNCLOS’ general
phrasings created difficulties in its applications due
to its nature as a framework convention. Although this
trait is expected for a framework convention, yet in
some cases it gave too much discretion to the State or
too elusive for it to be effective. As the UNCLOS
places marine environmental protection above state’s
sovereign rights to resources, its lenient standards
may be counterproductive for marine environment
protection. Furthermore, the analysis has also shown
that there is a need for more international
regulations on response to oil spills from offshore
activities especially on matters that are lethal to
preservations to the marine ecosystems such as the use
of dispersants in oil cleaning effort. This is
currently developed by the IMO.
In relations to Indonesia’s claim for compensation
under the UNCLOS, it is possible for Indonesia to
claim for compensation and reparation from Australia
33
as a state party. Even though the UNCLOS acknowledges
that there is State responsibility in damages of the
marine environment and financial restitution could be
sought, the UNCLOS does not contain a substantive rule
to regulate it. Having said that, Indonesia could
claim on reparation and compensation due to alleged
damages of oil pollution from the Montara oil spill
however the determination of State responsibility of
the claim will be in accordance with the applicable
international law, as it is not provided under the
UNCLOS.
34
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