The International Regime for the Compensation of Oil‐pollution Damage: A Good Candidate to Have a Human Rights Law Approach?

• DOI: http://doi.org/10.1111/j.1467-9388.2011.00722.x
• Published date: 01 July 2011
• Date: 01 July 2011

The International Regime for the Compensation of

Oil-pollution Damage: A Good Candidate to Have a

Human Rights Law Approach?

Armelle Gouritin

Questions such as who is to be held liable for oil-spill

damage, under which conditions and for which type of

damage are currently highly debated and discussed by

legal scholars and before national, European and

international courts. While European Commission

(EC) regulators have questioned the international civil

liability regime for oil spills, some victims of harm

caused by spills have been willing to circumvent the

international regime in order to have national general

rules of criminal law or the transposition of EC waste

legislation applied. Noting the growing academic

work on international liability mechanisms, and par-

ticularly the critical appraisal of the international

regime, this article takes a different approach. It ana-

lyzes the compatibility of the international liability

regime with the requirements of the European Con-

vention on Human Rights. Does the liability scheme set

by the international regime fulfill the human rights

requirements of the European Convention for the Pro-

tection of Human Rights and Fundamental Freedoms

and the European Court of Human Rights’ caselaw?

This article finds that it may not.

INTRODUCTION

The adverse effects of the Gulf of Mexico oil spill1fol-

lowing the explosion and fire aboard a British Petro-

leum mobile offshore drilling unit on 20 April 2010 are

nothing new. Such disasters beg questions such as who

is legally responsible and for what. Legal answers can

seem inappropriate not only because legal frameworks

have failed to fill their preventive function, but also

because legal answers are not able to fully address the

social disarray felt when facing such disasters. Legal

answers are also often criticized for being too slow. This

article will assess such aspects when focusing on the

international legal framework that applies in Europe in

cases of oil spills and sets liability rules.2

The international civil liability regime for the compen-

sation of oil-pollution damage is founded on the 1992

Civil Liability Convention3and the 1992 Fund Conven-

tion.4In 2003, a Supplementary Fund Protocol (SFP) to

the Fund Convention was adopted.5Almost all Euro-

pean Union (EU) Member States with a coastline are

parties to the international regime.6The international

regime is meant to establish ‘equilibrium’ between the

needs of the victims (to be compensated for the harm

they have suffered) and the needs of the oil industry (to

be able to continue its activities).7Questions such as

who is to be held liable for oil-spill damage, under

1On this oil spill and the American federal coordinated response, see

the Deepwater Horizon Unif‌ied Command, Deepwater Horizon

Response (Deepwater Horizon Unif‌ied Command, undated), found at

<http://www.deepwaterhorizonresponse.com/go/site/2931/>.

2On a side note, it can be noted here that the United States is not

party to such legal framework.

3International Convention on Civil Liability for Oil Pollution Damage

(Brussels, 29 November 1969) (Civil Liability Convention), amended

by the Protocol of 1992 to amend the 1969 International Convention

on Civil Liability for Oil Pollution Damage (London, 27 November

1992).

4International Convention on the Establishment of an International

Fund for Compensation for Oil Pollution Damage (Brussels, 18

December 1971) (Fund Convention), amended by the 1992 Protocol

to amend the 1971 Fund Convention (London, 27 November 1992).

There are 104 States that are party to the two conventions as of 4

May 2010, they will be 105 by 2 February 2011. See IOPCF, States

Parties to both the 1992 Civil Liability Convention and the 1992 Fund

Convention – As at 4 May 2010 (IOPCF, undated), found at <http://

www.iopcfund.org/92members.htm>.

5There were 26 parties on 4 May 2010, see IOPCF, ibid. A separate

intergovernmental organization was also established: the Interna-

tional Oil Pollution Compensation Supplementary Fund (Supplemen-

tary Fund).

6W. Oosterveen, ‘Some Recent Developments Regarding Liability for

Damage Resulting from Oil Pollution: From the Perspective of an EU

Member State’, in G. Betlem and E. Brans (eds), Environmental

Liability in the EU: The 2004 Directive Compared with US and

Member State Law (Cameron May, 2006), at 245.

7See, the Fund Convention’s preamble, which states: ‘Convinced of

the needs to elaborate a compensation and indemnif‌ication system

supplementary to the International Convention on Civil Liability for Oil

Pollution Damage with a view to ensuring that full compensation will

be available to victims of oil-pollution accidents and that the shipown-

ers are at the same time given relief in respect of the additional

f‌inancial burdens imposed on them by the said Convention’ (see

Fund Convention, n. 4 above, preamble).

Review of European Community & International Environmental Law

RECIEL 20 (2) 2011. ISSN 0962 8797

© 2011 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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