Hostname: page-component-586b7cd67f-dlnhk Total loading time: 0 Render date: 2024-11-24T13:37:42.340Z Has data issue: false hasContentIssue false
  • English
  • Français

Removal of installations in the Exclusive Economic Zone*

Published online by Cambridge University Press:  07 July 2009

Paul Peters ,
Alfred H.A. Soons  and
Lucie A. Zima
Get access

Extract

The purpose of this report is to consider the provision on removal of disused installations, contained in Article 60.3 of the 1982 UN Convention on the Law of the Sea, in particular its history and scope, its further elaboration by “standards” to be established by the International Maritime Organization (IMO) and other relevant questions. The questions to be considered with regard to the removal obligation include more specifically:

a) the position under the corresponding provision of the 1958 Continental Shelf Convention;

b) the position under customary international law;

c) the effect of Article 60.3 of the new Convention pending its entry into force, and thereafter;

d) the question of jus constituendum, i.e. the standards to be evolved in IMO or other appropriate international organizations;

e) the relation between rights and obligations derived from a) to d) above and those based on other international instruments such as in particular the Oslo and London Dumping Conventions of 1972.

Type
Articles
Information
Netherlands Yearbook of International Law , Volume 15 , December 1984 , pp. 167 - 207
Copyright
Copyright © T.M.C. Asser Press 1984

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. “Billion” in this report denotes 1000 million according to American usage.

2. In 1956 the UK Government had proposed the insertion of a new paragraph in what became Art. 5, reading “If such installations are abandoned or disused, they are to be removed instal entirely” (Yearbook ILC I (1956) p. 87). The rapporteur François did not think this necessary as the substance of the proposed paragraph was already covered in the ILC draft: “Obviously the abandonment or disuse of installations would constitute unjustifiable interference with navigation and fishing”. Fitzmaurice (UK) could not agree that the point was obviously covered by Art. 6.1 but admitted that it was implicit in it. He said that installations “were troublesome to remove, and might readily be abandoned, but would still be dangerous to navigation”. He did not, however, press the point and it was agreed that the question should merely be mentioned in the comment (ibidem, p. 151).

3. According to Sherwood E. Frezon, Summary of 1972 Oil and Gas Statistics (US Govt. Printing Off. (1974)) p. 159 world-wide cumulative oil production offshore even as late as 1972 was less than 5% of total (onshore plus offshore).

4. During the discussion on the UK proposal (see note 2 supra) the rapporteur noted that a specific removal obligation might be unneccessary as such an obligation was implicit in the provision that exploitation “must not result in any unjustifiable interference with navigation, fishing or the conservation of the living resources of the sea” (Art. 5.1). This interpretation did not receive general support, so that in the end a specific removal obligation was adopted. It is clear therefore that Art. 5.5 was not merely meant to be a confirmation or elaboration of the basic principle of the convention, i.e. the regulation of the sovereign resource rights of the coastal state without prejudice to the legal status of the water column and air space (Art. 3) and without unduly interfering with navigation, fishing, etc. (Art. 5.1). It was indeed meant at that time to impose a strict and specific obligation on the coastal state.

5. The expression transit pipeline (Transit Rohrleitung) is defined in para. 3 of the 1980 Federal Mining Act of FRG as a pipeline which enters the continental shelf of the FRG from the continental shelf or territory of another state or which passes through the continental shelf of the FRG. In this report, however, we use the term only in the latter sense (passing through). A pipeline, such as the Ekofisk line to the FRG, which begins on the Norwegian shelf, passes through the Danish shelf, then enters the German shelf and ends at a terminal in FRG, thus is a “transit pipeline” from the Danish point of view, but not from the point of view of FRG (which in any case has jurisdiction insofar as the line enters its territory).

6. There could be some doubt whether short gathering lines, loading lines and the like within the confines of an oil field or gas field – as distinct from mainline pipelines – are “installations” in the sense of Art. 5. The ILC records are inconclusive on this point. Early in the discussions a French note on the provision which has become Art. 5 pointed out that the possibility to exploit would include “ipso facto la possibilité d'établir des pipes-lines” (II Yearbook ILC (1953) p. 24), but the indication given by the rapporteur that the term “installations” might be clarified has not been implemented in this sense. That some thought was given to fieldlines is also clear from Preparatory Document No. 20 by Mouton (A/Conf. 13/25 of 3 January 1958: “Recent Developments in the Technology of Exploiting the Mineral Resources of the Continental Shelf”, p. 10) where reference is made to the practice of connecting several wells by submarine pipelines to a collecting platform from where the oil is pumped through a larger submarine pipeline to the shore installations. It could be argued that pipelines “used in connection with the operations of installations and structures” (these words can be found in Art. 79.4 of the Law of the Sea Convention) should be equated to installations and should therefore be subject to the removal obligation; on the other hand, the words quoted suggest that pipelines are not installations. See also para. 7(f) below in fine.

7. Black's Law Dictionary (1979).

8. Brown, E.D., “Decommissioning of offshore structures: legal obligations under intern, and municipal law”, in Oil and Petrochem. Pollution, Vol. 1 (1982) p. 23CrossRefGoogle Scholar. See also Caflisch, L. on Submarine Antiquities in 13 NYIL (1982) on p. 32CrossRefGoogle Scholar regarding the case for an interpretation in a more functional sense: it may be argued that the object of the entire removal is to ensure that remnants of installations will not be an obstacle to the unimpeded exercise of the freedoms of the sea, rather than the complete physical removal of everything down to the last nuts and bolts, which would be a meaningless exercise on a seafloor littered with wrecks (cf. para. 10(c)(i) in fine below).

9. Daintith, and Willoughby, , Manual of United Kingdom oil and gas law, (1977) p. 179.Google Scholar

10. See for a more extensive review of the legislative and treaty provisions the report on Abandonment obligations (removal of offshore structures), of the E&P Forum (1980).

11. Daintith and Willoughby, loc. cit. (n. 9) p. 455.

12. Brown, loc. cit. (n. 8), p. 31.

13. See Fitzmaurice, as quoted by Blown, loc. cit. (n. 8), p. 33.

14. Cf. the “primary interests” concept to which reference is made in para. 11(b) in fine. This concept was abandoned by the ILC and is not reflected in the Continental Shelf Convention (of which the FRG is, however, not a party), nor – as will be argued in para. 11 (b) and note 47 infra – should it be read into the Law of the Sea Convention.

15. It is almost inconceivable to envisage such circumstances in which the removal of the pipeline would become “necessary” or would be agreed by both governments, having regard to the huge costs and environmental problems which would be involved in such a removal operation. It is curious indeed that such removal was contemplated at all in the treaty.

16. There is an extensive literature about this cause célèbre of 1964. See Van Panhuys, and Van Emde, Boas, “Legal Aspects of Pirate Broadcasting”, in 60 AJIL (1966), p. 303CrossRefGoogle Scholar. The REM (Reclame Exploitatie Mij., i.e. Advertising exploitation company) had built a platform just outside the territorial sea of the Netherlands for the purpose of radio broadcasting and advertising. The Netherlands Government assumed jurisdiction, removed REM's equipment and ultimately took over the platform, which still exists as a research station. The conflict was about the question whether the Netherlands was entitled to extend its jurisdiction; the question of an obligation to remove the installation was never raised. As the installation was not erected for the purpose of exploiting natural resources, Art. 5 of the 1958 Continental Shelf Convention did not apply (Art. 60.3 of the 1982 Law of the Sea Convention, on the other hand, would apply) even though the REM island was abandoned and disused for a period.

17. As set out above in para. 4(c) it might have been argued that an obligation to remove installations ‘entirely’ is to be interpreted in the light of its object and purpose rather than literally. However, this argument was not raised at that time. Discussions did take place on the mitigating effect which an ‘abuse of right’ provision might have (cf. para. 9), but it was felt that the removal provision itself should be clarified as indicated, in order to remove uncertainties and having regard to the drastically changed circumstances since 1958 (cf. para. 8(c)(i) infra).

18. It has been argued that Art. 5.5 of the 1958 Convention and Art. 60.3 of the 1982 Convention, when read in the context of the basic purport of these conventions to recognize coastal state sovereign rights and jurisdiction on the continental shelf, do not restrict the right of the coastal state to legislate on the removal question, in other words that this question in the final analysis is at the discretion of that state. We do not consider this argument tenable in the light of the history of Art. 5.5 (cf. note 4 supra) and the system of the 1982 Convention, which provides for international dispute settlement arrangements (cf. para. 11 (f) infra).

19. See in this connection n. 6.

20. On the meaning of “structures”, see Soons, , Marine Scientific Research and the Law of the Sea (1982) p. 233.Google Scholar

21. See n. 6.

22. The question of safety zones for pipelines was considered by the ILC in 1956 on the basis of a proposal by Mouton of the Netherlands to insert a provision that “the coastal State is entitled to establish a safety zone of 250 m on either side of these pipelines in which ships are not to anchor and trawlers are forbidden to fish”. The rapporteur considered such a provision unjustified as a further encroachment on the freedom of navigation and fishing; and unnecessary as the matter would be sufficiently dealt with by the provisions of the high seas regime (cf. Art. 27 of the 1958 High Seas Convention and Art. 113 of the 1982 Law of the Sea Convention). The question of safety zones for pipelines was not further pursued. See II Yearbook ILC (1956) p. 12.

23. See last sentence of para. 8(a).

Admittedly, little or no state practice exists in the form of actual implementation of legislation, i.e. actual decisions on removal or non-removal after abandonment or disuse. However, it is submitted that the existence of legislative provisions and licence terms on removal is by itself a valid expression of state practice, when such provisions and terms will not allow the state to require removal entirely. It may be argued, of course, that when the state has not required its licencee to remove an abandoned installation, the obligation upon the state to remove it remains unabated, so that in the final analysis the state's practice can only be determined on the basis of what the state actually does (or does not do) after abandonment or disuse. However, this argument seems somewhat unrealistic.

24. Cf. Riesenfeld, quoted below (n. 27), whose pronouncement on consuetudo and desuetudo relates to customary (not to conventional) international law.

25. Cf. Verzijl, , Intern. Law in Hist. Perspective, Vol. I, p. 294.Google Scholar

26. Schwarzenberger, , Intern. Law, I (1957), p. 537.Google Scholar

27. Paper by Riesenfeld on the impact of the convention on the law of the sea, given at a Duke University Seminar on 28 October 1982, p. 7.

28. Cf. Verzijl, , Intern. Law in Hist. Perspective, Vol. VI, pp. 359 and 364Google Scholar. Also Von Mehren and Kourides in an article on the Libyan nationalization cases, dealing at some length with a theory of changed circumstances, 75 AJIL (1981) p. 530 et seq.

29. Soons, , “Artificial islands and installations in intern, law (Occasional Paper No. 22 of Law of the Sea Institute of Rhode Island, July (1974), p. 3.Google Scholar

30. Bouchez, Jaenicke and Jennings, Intern. Law aspects of Feasibility Study on the development of industrial islands in the North Sea, Vol. 4 (1974) p. 2.

31. Cf. para. 10(c)(i) in fine, infra. See also: Stephens, A.D., Liability for the removal of Wrecks, a Dutch and an English perspective, in XXIX NILR (1982) p. 128CrossRefGoogle Scholar, commenting on the decision of the Neth. Supreme Court of 26 May 1978 (NJ 1978, 615) on the question who should be liable to pay the cost of removing a shipwreck from the seabed outside territorial waters when the state is not under an obligation to remove the wreck under any provisions or principles of municipal or international law.

32. Cf., Bouchez, Jaenicke and Jennings, loc. cit. (n. 30), p. 57.

33. Cf. UNCLOS–I Off. Records Vol. VI (Fourth Cttee.), Summary Records 1958, p. 92. There is some doubt whether such installations have ever been installed.

34. In a way tunnels may be considered to be similar to pipelines and as such the question arises whether they are excluded from the scope of Art. 5.5 of the 1958 Continental Shelf Convention and Art. 60.3 of the 1982 Law of the Sea Convention in the same way as pipelines. Art. 7 of the 1958 Convention and Art. 85 of the 1982 Convention, which deal with tunnelling (for the purpose of exploiting the subsoil only) do not clarify this question.

35. Cf. Schaefer, , Die Fluginsel (1932)Google Scholar as quoted by Bouchez, Jaenicke and Jennings, loc. cit. (n. 30), p. 14 note 28. See also De, Pontavice, “Rapport concernant les aspects juridiques de l'exploitation des maisons sous la mer”, ILA Cttee. on the Law of the Sea, Madrid Conference, 1976.Google Scholar

36. The question to what extent Art. 60 of the Law of the Sea Convention is relevant to installations for military purposes is not answered explicitly by the Convention (cf., Art. 141 which is explicit on this point only in relation to the Area). However, Art. 60.1(b) and (c) relates only to installations and structures which either (b) have an economic purpose or (c) “may interfere with the exercise of the rights of the coastal State”. As regards (c), this would seem to exclude military installations or structures erected by the coastal state itself (or its allies?) in its own EEZ, while art. 301 (peaceful uses of the seas) would seem to exclude military installations or structures erected by another state. As regards the position under the 1958 Continental Shelf Convention, see Bouchez, Jaenicke and Jennings, loc. cit. (n. 30), pp. 18 and 55.

37. The question may well be asked whether such installations should have been installed in the first place. This question, however, falls outside the scope of this report.

38. The question may be raised whether such removal costs, say 18% of the original cost of the installations, but incurred 20–30 years later and therefore small in terms of present value at the time of erection of the installation, is “prohibitive” and would significantly increase the cost of oil or gas produced. In absolute amount, however, there is no doubt that the removal costs are substantial.

39. Loc. cit. (n. 8), p. 34 n. 12.

40. Cf., n. 31 supra. See also IMCO doc. LEG XXIV/3/1, i.e. note of Secretariat of 24 September 1974 regarding Consideration of draft articles for a Convention on wreck removal and related issues, summarizing replies by 20 governments on hazardous wrecks, cost of removal, etc.

41. Cf., Maury Osborn Ferguson “Underwater Communities” in Texas Parks and Wildlife Magazine, June 1982 and “Obsolete oil and gas platforms as artificial reefs” in the SFI (Sport Fishing Institute) Bulletin No. 338 of September 1982. The Netherlands delegate Mouton, at the 1958 Geneva Conference, pointed out that there is another potential advantage. As quoted by Bouchez, Jaenicke and Jennings, loc. cit. (n. 30, p. 55, he said that “warning lights and fog signals … might not only prevent the installations from being an obstacle to navigation but actually transform them into navigation aids”.

42. Cf. W. van Reenen, Rules of reference in the new Convention on the Law of the Sea, in particular in connection with the pollution of the sea by oil from tankers, in 12 NYIL (1981) p. 5.

43. Ibidem, p. 12.

44. The view that non-binding IMO standards may become binding by reason of the reference in the Law of the Sea Convention to unspecified “generally accepted international standards” is not undisputed. It implies that states when ratifying the convention accept a quasi-legislative order which they did not accept when they accepted the IMO regime and may be seen as an undue encroachment on their sovereignty. Cf. Schneider, , Een norm voor interpretatie? (A norm to be interpreted?) (1977) p. 5.Google Scholar

45. Cf. Van Reenen, loc. cit. (n. 42), p. 32.

46. Ibidem, p. 25. See also Resolution 23 of the International Conference on Marine Pollution, 1973, on the use of the term “standard”.

47. Cf. Bouchez, Jaenicke and Jennings, loc. cit. (n. 30), p. 50 n. 110 and pp. 71–72. It is true that the wording of Art. 60.3 itself would seem to suggest a hierarchy of interests: the first requirement is to ensure safety of navigation; secondarily, due regard must be had to fishing, environment and the rights and duties of other states. However, in view of the history of this provision and, in particular, the context in which it is placed in Part V of the Convention and the principle expressed in Art. 59, although in a different context, it is submitted that the duty “to ensure” and the duty to have “due regard” have equal force, so that the primacy of the navigational interests cannot be deduced from this wording.

48. Cf., para. 6.9 supra.

49. Cf., n. 47 supra.

50. It would appear that pipelines properly buried or anchored do not present significant risks to navigation or other uses of the sea, provided that they are flushed and filled with seawater after abandonment or disuse. Nevertheless, if there is a need for international standards on removal or cleaning-up of disused pipelines, this is a question that should be considered separately on its merits, quite apart from the standards called for by Art. 60.3 of the Law of the Sea Convention which are discussed in the present report.