Transboundary Environmental Harm in the Arctic : A Study of Accountability for an Oil Spill

Latterly, the Arctic has transformed from a peripheral region to an area in the focus of the world, especially in terms of oil drilling. Nonetheless, no international legal instrument has addressed the matter of accountability for transnational oil pollution damage. Consequently, this thesis aspires to evaluate whether the current legal constructions, namely State responsibility, international liability, civil liability regimes and multilateral environmental agreements (MEAs), allow establishing accountability or creating a regime of accountability for transboundary environmental harm that results from hydrocarbon exploitation in the Arctic. Finally, the thesis seeks to systematize the law of accountability for environmental harm by providing an examination of the above mentioned current constructions, understood as layers of international accountability in the present thesis. The first layer, which offers an insight into the law of State responsibility for wrongful acts, naturally focuses on the ILC’s Draft Articles on responsibility of States. Both of the main criteria of State responsibility, meaning the attribution of the conduct and the breach of an obligation, will be assessed. However, it quickly becomes apparent that State responsibility faces severe challenges in terms of establishing accountability for oil pollution damage: the exploitation activities are often carried out by private entities whose conduct may only be attributable to States in rare circumstances. Moreover, the environmental obligations remain vague and thus a breach of them hard to prove. Thereby, State responsibility cannot be effectively resorted to in order to enforce accountability for environmental damage. The second layer, international liability, is based on the ILC’s project on international liability of States for injurious consequences. This prominent project, however, ran into difficulties right from the beginning: it was founded on the idea of strict State liability, something the international community was not ready for. Consequently, the project was never finished; instead, separate works on prevention and allocation of loss were concluded. Simultaneously, however, the original scope of the project was weakened: while the idea of State liability was abandoned, the idea of civil liability systems as a means to enforce accountability was welcomed. Thus, also the second layer in its initial from fails to establish accountability for Arctic oil spills. The third layer, in turn, introduces civil liability schemes as a possible solution to executing accountability for oil pollution damage. In this context, special attention will be paid to the vessel-source civil liability system and the approaches adopted in it. The third layer will culminate in assessing whether a civil liability system could become the tool for enforcing accountability. Despite the certain advantages a civil liability system would incorporate, it still constitutes a dissatisfying solution: their scope and territorial applicability leave much to be desired.. Moreover, it allows exonerations and limitations to liability, thus meaning that damage would never be compensated fully. Therefore, neither does a civil liability regime resolve the matter of international accountability for oil spills. Finally, the fourth layer presents the MEAs as the solution to enforcing international accountability. In this context, special attention will be paid to the most remarkable treaty regimes, such as the 1972 Convention on International Liability for Damage Caused by Space Objects, the 1982 Convention on the Law of the Sea and the Antarctic Treaty system as well as the prospects of an Arctic Treaty to develop an effective scheme in order to establish oil pollution damage in the Arctic. As none of these appear particularly useful in terms of determining accountability for an oil spill, however, the present thesis proposes that neither do the MEAs present a workable solution for enforcing accountability for the Arctic oil pollution damage. In conclusion, the thesis indicates that no current regime assists in establishing accountability for transfrontier pollution; thereby, there is need for ‘a new way’ in the law of accountability, one possibility of which could be presented in the form of non-compliance mechanisms. It also appears that two things may indicate to the creation of a system of accountability: either it will be concluded in the aftermath of an environmental disaster or in the event the environmental concerns have transformed into military or security threats. Still, neither of these options appears very appealing; when the problems have escalated into that level, reacting to them might prove impossible. Thus, the time for action is now. Finally, the lack of proper regulation of accountability for transboundary harm resulting from the Arctic oil drilling can actually be deemed an indirect subsidy to the hazardous activity; thereby, once again a collision of the environmental and economic values results in the latter prevailing, thus leaving the environment in an especially vulnerable position