International Environmental Oil Law and Brazil
© Springer International Publishing Switzerland 2015
Yanko Marcius de Alencar Xavier (ed.)Energy Law in Brazil10.1007/978-3-319-14268-5_88. International Environmental Oil Law and Brazil
(1)
Department of Private Law, Federal University of Rio Grande do Norte, Natal, Brazil
8.2 Transboundary and International Marine Pollution: International Conventions and the Brazilian State
Abstract
The present chapter discusses international law as it applies to environmental protection from damage caused in a particular area under state jurisdiction or not, but which results in harmful repercussions, whether to a resource belonging to humanity—international waters—or to territories of several States. Specifically, international environmental issues aimed at petroleum activities are correlated with marine pollution caused by oil tankers, as well as that originating on offshore oil and gas platforms. For this reason, we will begin by discussing the principles of international law applicable to environmental protection in order to apply them to questions of transboundary and international marine pollution. Next, we will analyze the most relevant international conventions that Brazil adheres to, demonstrating the protective format of each. Finally, we will examine the subregional mechanisms created for environmental protection in the Common Southern Market—MERCOSUL, not forgetting the bilateral agreements between Brazil and some of its neighboring countries concerning transactional environmental issues.
8.1 Principles of International Law Applicable to Environmental Protection
International environmental law can be understood as a set of guidelines that create rights and obligations for the various international players and not only for the States, from an environmental perspective, attributing roles and responsibilities that must be observed by all parties worldwide and are aimed at improving quality of life for present and future generations.1
Thus, globally or regionally conceived international documents were compiled, to protect the environment where man engages in different types of economic activities, including the exploration and production of oil and gas, which are inherent polluters.
The environmental problem of petroleum activities is worrisome, notably for a supranational context when conducted in maritime settings. This is because any loss of control in these activities on platforms or oil tankers may cause leaks that could spread to the waters of other countries, as well as to international waters not regulated by any State, despite the existence of rights and obligations specifically covered by the Montego Bay Convention on the Law of the Sea, of 1982.
Because the issue is an international one and given the belief that pollution control depends on the formulation and execution of environmental policies at the supranational level, where national borders cannot serve as barriers to the preservation and prevention of environmental damage capable of affecting various countries or continents and threatening the equilibrium of ecosystems on a planetary scale, international environmental law was definitively consolidated as a highly specialized branch of public international law.2
International law involves the formation of legal guidelines that establish standards of conduct in terms of the internal control that each State should have over activities in its territory that cause transboundary environmental damage, either because it failed to monitor said activity or it did not institute sufficient obligations to avoid the resulting environmental damage.
In the international context, the first relevant and basic environmental protection principle concerns the need for internal observance on the part of each State, with adequate measures to ensure safe exploration and production, while preserving the area, maritime or not. Despite being under the jurisdiction of a single country, the area may affect other jurisdictions, with severe repercussions to the legally protected interests of other national or international entities.
The nature of certain biological or physical phenomena located within a geographic area under the sovereignty of a State means they require international regulation, either because their uniqueness affects other countries or because they can only be regulated through international guidelines.3
International law therefore demands that States adopt a proactive attitude in relation to regulating economic activities conducted in maritime or land-based environments where these operations may have wider reaching effects. Furthermore, international law requires States to exercise this internal control, not only as guideline expeditors but also as active players in this protective movement.
This is the principle of precaution contained in the Rio Declaration on Environment and Development and reaffirmed at the United Nations Conference on Environment and Development, in which Principle 15 states: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. When there is a threat of severe or irreversible damage, the absence of absolute scientific certainty will not be used as a reason for postponing economically viable measures to prevent environmental degradation.”
Internationally, the States are the only agents fully responsible for all that occurs in their territory, and it is up to them to take the appropriate administrative, legislative and legal measures. Both the international community, which owns resources that are classified as common patrimony of humanity, as well as the States themselves need an international legal system that considers the rights and obligations of each one, given that environmental damage can affect their legal interests.
In this vein, the United Nations Conference on the Human Environment held in Stockholm in 1972 contained the aforementioned proviso in two of its principles. Principle 21 states that “In accordance with the United Nations Charter and the principles of international law, States have a sovereign right to exploit their own resources pursuant to their own environmental policies and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States, or of areas beyond the limits of national jurisdiction.” The first manifestation of international law regarding the environment, which constituted the basis for formulating Principle 21 of the Stockholm Declaration of 1972: Arbitrated Decision in the case of the Smelter at Trail (USA × Canada), where it was determined that “No State may use or allow the use of its territory in a manner that endangers the territory of others through the release of fumes.”
Second, as a solution to the first point, international law seeks global cooperation among countries in order to achieve efficient management of natural resources, not through sharing among nations, which may well exist, but by virtue of the reciprocal responsibility that States have to protect their environment.
The intervention of international law in global environmental issues is mandatory since States may disregard the rights of neighboring States, especially with the environmental aspects involved, and allow the widespread use of natural resources, without due concern for preservation.
As a result, the most widely defended solution in the present case is the implementation of legal instruments between States so as to prevent damage and achieve optimal and efficient use of resources while preserving sovereign rights and ensuring the necessary environmental protection. This solution derives from international guidelines that promote vital interstate cooperation between parties in the event of transnational environmental damage.
The development of international cooperation between sovereign States is strongly influenced by the national interests of each party. It is as if there were competition between sovereignties for natural resources when in fact “the biosphere belongs to everyone, and certain assets vital to health belong in principle only to the State in which they are located. By virtue of classic international law, the States exercise exclusive and absolute domain over their own resources.”4
Moreover, two factors, one internal and the other international, interfere directly in the development of cooperative instruments between States, namely, the influence of interested domestic groups and the current attempt at maximizing gains in international relations.
For effective international cooperation aimed at the adequate use of natural resources, a few basic requirements are essential, such as (1) direct interaction between those involved, through the continuous exchange of information and prior notification, and (2) the creation of efficient institutions that promote international cooperation as a means of strengthening global commitment to precaution, prevention and liability and the mandatory enforcement of these actions by internal legal entities and/or international courts, with full prior acceptance of their jurisdiction.
Principle 22 of the United Nations Conference on the Human Environment states that “States shall cooperate to further develop international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction.” Next, Principle 24 states:
International matters concerning the protection and improvement of the environment should be handled in a cooperative spirit by all countries, big and small, on an equal footing. Cooperation through multilateral or bilateral arrangements or other appropriate means is essential to effectively control, prevent, reduce and eliminate adverse environmental effects resulting from activities conducted in all spheres, in such a way that due account is taken of the sovereignty and interests of all States.
In addition to instituting the principles of precaution, polluter-payer and mandatory environmental impact studies, the United Nations Conference on Environment and Development (Rio-92, Eco-92) also recognized that public disclosure of environmental information and access by all interested parties to decisions on activities with environmental impact are essential to facilitate international cooperation between States when dealing with undertakings that may have transnational repercussions, as well as holding those responsible for causing damage accountable for their acts. This also involves very strong social control, internally and internationally (by other States involved and other international environment protection agencies), with the primary aim of prevention and precaution.
The implementation of these rules and a system of accountability for not honoring agreements are some of the greatest challenges to overcome in negotiations for their inclusion in the final binding text. This is because not all countries are willing to submit to third-party agencies, even though they were created with the full knowledge and agreement of all concerned parties to solve issues that emerge over the course of the treaty. In this respect, the stipulation of rules will undoubtedly be based on the rights of all countries and international environmental law.
It is important to highlight that sovereignty is still the primary principle of international law, serving as the basis and framework for the political and legal barrier erected by countries in order to avoid submitting to international cooperation guidelines in general. The reticence of States is far more evident in terms of submitting to supranational monitoring and control institutions, as well as mandatory jurisdiction for the solution of any controversies that emerge.
8.2 Transboundary and International Marine Pollution: International Conventions and the Brazilian State
Oil and gas exploration and production in maritime settings became a major concern for international environmental law, given the internationality characterized by any environmental damage caused in these locations, which may extend beyond territory under the jurisdiction of a single State.
From this evidence, it was signed a significant number of multilateral, bilateral and regional treaties on the major themes involving the international environmental law, such as (a) legal treatment to large environmental spaces (Antarctica, the Amazon, ocean floors and outer space), (b) maritime and ocean spaces and (c) liability and repair of transnational environmental damage. Some special factors contributed to the large number of guidelines created: the continued occurrence of environmental disasters and the proliferation and strengthening of nongovernmental organizations.
Certainly, crude oil spills from supertankers, such as the Torrey Canyon, Amoco Cadiz and Exxon Valdez, are widely reported as motivating factors for the international community in the 1980s to seek solutions to environmental issues that called for urgent regulation. According to Guido Soares, “maritime and ocean spaces are the environments that have suffered the most catastrophic damage in recent years, due to the emergence of supertankers with their huge capacity for environmental destruction, as well as the coastal activities of riparian countries.”5
Regarding the Torrey Canyon case, Celso Mello states that “numerous legal problems emerged: the owner was American; the charterer was English; the ship flew the Liberian flag; the crew was Italian; etc. Who was liable for the damage caused?”6 However, one can go way beyond the international legal questions that arose from this case, namely the following: which law should be applied to determine liability? Is environmental protection a national or international obligation in this case? In which of these would the goal of assigning liability for the damage be achieved? Which agency with jurisdictional powers would have international authority to impose reparatory demands? Which entity would be liable for the environmental damage beyond national jurisdiction?
In this sense, the increased awareness of the dangers faced by the international environment and the wide array of environmental problems are no longer exclusively an internal matter, but rather a global problem, by virtue of the international dimension of the occurrence of two obvious aspects: marine pollution can affect several States, but even if this is not the case, protection of the marine environment is a right bestowed equally on all States and the international community as a whole; environmental issues cannot be resolved by States acting individually and internally because of the scale and impact of internal attitudes beyond their borders and because it is imperative that standardization of patterns of conduct and decision making for such situations do not occur solely internally but rather are constructed in the international context to be followed by countries within their territories.
Some international legal documents containing guidelines establishing international relationships and clear obligations of fulfilling these guidelines in their respective jurisdictions are examples of this new international awareness. However, it still does not sufficiently encompass all the environmental issues involving seas and oceans that deserve legal protection from petroleum-based activities.
The Brazilian State committed itself to the main rules regarding marine pollution caused by the oil industry, especially (1) the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, held in London in 1972; (2) the 1973 International Convention for the Prevention of Pollution from Ships, in London; its Protocol concluded in London in 1978; its Amendments and Optional Annexes III, IV and V implemented in 1984; (3) the International Convention on Civil Liability for Oil Pollution, in Brussels, on November 29, 1969; (4) the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, in Brussels, in 1969; (5) the International Convention on Oil Pollution Preparedness, Response and Cooperation in cases of Oil Pollution, of 1990; and (6) United Nations Convention on the Law of the Sea, in Montego Bay, in 1982.