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REGULATING ENVIRONMENTAL IMPACTS OF OFFSHORE E&P ACTIVITIES IN THE GULF OF GUINEA

By Ibrahim Sorie Koroma

+232-33444926/+23276393111. ibrahimsko@yahoo.com

The author is an Investment Negotiator and Legal Practitioner in Sierra Leone. He also holds an LLM in Natural Resources Law & Policy advising Policy Makers, Institutions and Indigenous people.

As work blossoms offshore, there is an expanding international legal regime regulating E&P activity and protection of the marine environment. These are applied simultaneous to apparently different areas without being exclusive. They are supplemented by a range of regional and domestic regulations.

drilling machine

E&P activities in the gulf area have been regulated by some of these instruments/guidelines essentially targeting environmental protection for humans and biological environment. Of the lot, the London Dumping Convention (LDC), MARPOL 73/78 and the UNCLOS provide the greatest assistance and are therefore the most important. The LDC regulates and provides for the prevention of dumping of wastes and other matters including all types of dumping or incineration without permit from member countries having jurisdiction over the area. MARPOL 73/78 was designed to address concerns arising from operational and accidental discharges from civil oil ships targeting oil and oily mixtures with few exceptions. Its key provisions are contained in the six annexes thereto. A more comprehensive approach was adopted in the UNCLOS which is ‘a global instrument that seeks to allocate resources and responsibilities associated with the world’s oceans.’ The Convention dedicated its Part XII to addressing marine environmental protection with the aim of minimizing to the fullest extent possible all types of pollution and devices used in offshore E&P of the resources of the seabed and subsoil. It focuses on measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations and devices. Article 208 imposes a duty on states to regulate such activities within their jurisdiction and to cooperate regionally and globally to implement such obligation of marine protection. It is important to note however that, while UNCLOS established a framework for future protocols and instruments addressing marine pollution, it fails to provide specifics of how such goals should be accomplished. In the same vein, it requires regional harmonization and standards while assigning and allocating responsibilities to states.

 

3.1. NATIONAL APPROACHES

In keeping with their responsibilities, gulf of Guinea states have invariably developed national laws to address exploration and development in the sector consisting mainly of provisions contained in their petroleum or gas laws if not in the contracts or licenses for E&P activities. It is worth while providing the general basis to emphasize that apart from Angola, member states have almost failed in providing for environmental protect in offshore E&P. Even when they are mentioned in say a contract, it reflects a general requirement to observe the rules not least about enforcement. This is evident in the lack of capacity and infrastructure to implement and enforce rules and the fact that a weak regime in one country will ultimately impact the neighboring countries. Efforts at strengthening national laws and enforcement mechanism will not effectively change to risk direction since the individual sovereign states will deal with their resources according to their wishes anyway and grant a safe haven to operators within their territory.  It is suggested that regional cooperation and monitoring mechanism could have a great impact on improving the situation whereby member states will influence the rules and practices in other states by demanding compliance of certain standards.

3.2. THE CONVENTION AND ITS PROTECTION OF THE ENVIRONMENT

In the forgoing, the tide seem to flow towards a regional approach to environmental protection of the offshore E&P activities  in the gulf because, as it were, the UNCLOS regime has serious coverage lapses while the national laws are weak. Some pundits argue that the possibility of a new global regime to address offshore E&P is farfetched and have therefore suggested that the best approach to improving protection is a developed regional regime under the aegis of UNEP.

Under its regional seas programme, the West and Central African region encompassing the gulf of Guinea, rely on a single regional convention; the Convention for the Cooperation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region otherwise called the Abidjan Convention. It was adopted in 1981 and came into force in 1984 to protect, reduce, combat and control the area covered by the convention by ensuring sound environmental management by members “…using for this purpose the best practicable means at their disposal, and in accordance with their capacities.” The governing council of UNEP, under its regional seas programme, provided the original mandate for environmental action as encompassing a transsectorial approach to environmental problems which will deal with the consequences and the causes of environmental degradation. In that sense, the aim is to challenge specific problem of high priority to the states of a given region with a view to responding readily to the need of governments by helping to mobilize adequately their own national resources without disregarding the fact that undertaking such project of common concern to states on a regional basis should in due course provide the basis for dealing effectively with the environmental problems of the ocean as a whole.

The Convention area extends far beyond the gulf to cover the marine environment, coastal zones and related inland waters of the states of the Western African region from Mauritania in the north down to South Africa. In this regard, if effectively developed and utilized, it will address the flaws within the national regulation by providing for other states outside the gulf area, which will likely impact the gulf states in future. Without being hasty, one will tend to ask whether its provisions are adequate.

Articles 4, 5 and 6 of the Convention provides for the general obligations, pollution from ships, and pollution caused by dumping from ships and aircraft respectively. They all emphasize that the contracting parties shall individually or jointly as the case may be, ‘take appropriate measure’ in addressing environmental problems relative to those actions. This provision appears vague and the Convention fails to define the most obviously ambiguous words. Similarly, Article 8 exclusively provide for pollution from activities akin to E&P in the seabed area and state that “Contracting parties shall take all appropriate measures to prevent, reduce, combat and control pollution resulting from or in connection with activities relating to the exploration and exploitation of the seabed and its subsoil subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction” This article also fail to state which measures are appropriate but provide only in general terms what is assumed. These two phrases, in themselves, create a serious lacuna and could propel their conflicting interpretations. Apart from these scant provisions, there remains a wide gap in the convention for environmental protection of offshore E&P. In comparison, the OSPAR convention while making use of uncertain terms such as best environmental practices and best available techniques, went a step further to define each of those general phrases.

Similarly, Articles 11 and 13 used a rather bizarre language. Article 11 applies to protected   areas and require parties to ‘endeavour to establish’ such areas and to prohibit or control any activity likely to have adverse effects on the species, ecosystem or biological processes in those areas. Article 13 which is dedicated to EIA require parties to develop technical and other guidelines to assist in development projects that will minimize harm, as well as to ‘endeavour  to include’ an assessment of potential environmental effects in any planning activity entailing within member territories especially in the coastal area with the risk of causing substantial pollution or significant or harmful changes to the convention area. It also calls for information sharing regarding these issues. By including offshore activities, the provisions are weakened by their very wording ‘shall endeavour’ require a mere attempt to do so by state parties. This is in sharp contrast to the Wording of Article 5 and for that matter Article 6. The requirement of Article 5 is for parties to take ‘all appropriate measures’ in conformity with international law, to address pollution in the convention area as a result of all forms of discharges from ships. The lacuna left by international law in mind means that, those areas not covered by global instruments like MARPOL 73/78 for example will be excluded under Article 5.

Realizing the weak regime provided by the Convention, the contracting parties sought to supplement  it with  two other documents; a Conference Resolution adopted by the  Conference of Plenipotentiaries on Cooperation in the Protection and Development of the Marine and Coastal Environment to the  West and Central African Region and a Regional Seas Programme Action Plan for the Protection and Development of the Marine Environment and Coastal Areas of West and Central African Region on 23rd March 1981. Regrettably, both are non-binding. Although the Action Plan calls for regular surveys of oil slicks offshore, it is suggested that the aim was to monitor shipping activities in the area. The Convention’s only effective supplement was the 1981- Protocol on Cooperation in Combating Pollution in cases of Emergencies. Its key requirements are for maintaining contingency plans individually or by cooperation for marine safety and assistance. It specifically requires parties to address marine emergencies arising offshore due to E&P platforms.

In 2005, the Convention was reviewed with the aim of improving its lapses and to ensure its continued relevance in view of current realities. The expectation was to ‘provide guidance in the development of a future orientation to commit governments to honour their commitments and take ownership of the Convention and offer concrete measures to strengthen the institutional arrangement for effective cooperation…’ without achieving much of its original mandate in addressing environmental problems specific to the priorities of member states with a wide range of issues in an umbrella regional arrangement, to protect and manage the marine and coastal areas. It neglected the obvious socio-economic development opportunity which would enhance wealth generation to bolster confidence in targeting environmental threats in the region. They aim to restructure its objectives focusing on evaluation of environmental conditions as part of an investment and infrastructure development for sustainable growth, ensuring integration, social and economic development as well as environmental protection. This complies with NEPARD’s overall objective of improving environmental conditions by addressing the causes of environmental degradation as a result of poverty in the region.

Recalling its prime objective, the members sought to revitalize the Convention in an exta-ordinary meeting held in South Africa in 2008. Foremost in the agenda is to develop additional protocols. One on land-based pollution is near completion but the parties are yet to discuss a protocol for offshore E&P activities. The Accra conference ending 1st April 2011, gave the parities an opportunity to review the challenges since South Africa and to analyze them to consolidate and realize the unique legal and institutional framework meant to support the protection and development of the marine and coastal environmental issues of the region.

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