Chapter 10 - Responsibility of States for Trans-boundary Damage Caused by the Prohibited Operation of Oil and Gas Pipelines

Summary

INTRODUCTION

In the previous Chapters, it was discussed that in the aftermath of transboundary damage, two different but parallel legal regimes with different responsibilities can be applicable. It is submitted by this thesis that the operation of cross-border pipelines is often considered as a hazardous but non-prohibited activity under international law. A non-prohibited activity, however, could be considered as a wrongful activity when the source state has breached its international obligations with respect to the lawful operation of the pipelines. Such violations of international obligations give rise to state responsibility. Thus, the responsibility of the source state for an internationally wrongful act, which is governed by the rules of international law concerning the responsibility of the state for international wrongful acts, will be situated with the secondary norms of international law.

Furthermore, in this Chapter the secondary norms of international law, which will be imposed only when the primary norms of international law have been breached, will be discussed under the provisions of the conventions mentioned. Therefore, the current Chapter is aimed at addressing the responsibility of states for breach of their primary obligations. Generally speaking the Draft Articles on State Responsibility are adopted by the International Law Commission to codify customary international law in relation to state responsibility. Meanwhile, international and regional instruments sporadically include provisions on state responsibility for the non-fulfilment of their requirements as well as provisions addressing the issue of liability and redress in the context of trans-boundary damage. A question may arise about the potential overlap between the ILC Articles on State Responsibility and treaty law. Indeed, as stated in Article 55, based on the maxim “Lex specialis”, rules enunciated in treaties should be given priority over the ILC Articles on state responsibility. Thus, as Roe & Happold note, the ILC Articles on State Responsibility are often the right destination, but not the right starting point.1 Therefore, in the current Chapter first the obligations arising out of the treaties will be discussed and second the ILC Articles on State Responsibility will be studied.

In the current Chapter the UNCLOS Convention, the ECT, the Espoo Convention, the UNECE Conventions, the International Watercourse Convention and Kuwait Regional Convention will be discussed.