In today’s global world, it is well-known that the exploitation of natural resources on the one hand, is a vital in economic growth and a sustainable development but on the other hand, comes with serious negative environmental impacts. These include the destruction and degradation of old growth forests, oil leaks, gas emissions, the decimation of fisheries, clean-water pollution, and the despoliation of land in order to extract mineral resources. These impacts from the non-sustainable exploitation of natural resources ultimately threaten the whole human existence.
By Antonis Pashalides, Vasiliki Neophytou
Today the international, regional and national legal systems are trying to mitigate the risks from the non-sustainable exploitation of natural resources and protect the environment through precautions and regulations in the relevant legislations. In this article we present the main international instruments regulating the environmental protection in the process of exploitation of natural resources and then, we continue with the environmental energy approach of the Republic of Cyprus.
The International Environmental Legal Framework on Energy Sector
The Stockholm Declaration
The universal concern about the environmental problems has evoked the major UN Conference on the human environment at Stockholm in 1972, which resulted to the Stockholm Declaration. It established basic rules of International Environmental Law even if it is not a binding document on states. Mainly, and regarding our topic, the Stockholm Declaration imposes responsibility on states, inter alia, to ensure that activities within jurisdiction of states or control do not cause damage to the environment of other states or to areas beyond the limits of national jurisdiction. Furthermore, international cooperation is being supported by the Declaration and all principles express the need for economical development and environmental protection.
The Stockholm Conference led to the Action Plan for the Human Environment and resolution on World Environment Day, Nuclear Weapons Tests and the Convening of a Second Conference on the Human Environment.
The Rio Declaration
In 1992, the United Nations Conference on Environment and Development in Rio de Janeiro after long negotiations at national, regional and international level adopted the Rio Declaration on Environment and Development. The Rio Declaration built on the 1972 Stockholm Declaration of the United Nations Conference on the Human Environment.
On the topic of sustainable development the Rio Declaration may be considered the fundamental legal instrument. Even if this document is not legally binding, it is a reflection of the consent of all the member of the UN. Therefore, the Rio Declaration has additionally political authority and moral weight. Furthermore, it is one comprehensive document that tries to address all the legal principles and political objectives nationally, regionally and internationally in order to reach sustainable development.
The intent for sustainable development can be seen from the principles who Rio Declaration introduced in the international scene. In particular, the Rio process, apart from declaring that the environmental protection shall constitute an integral part of the development process for achieving sustainable development, built, intern alia, the recognition that states shall cooperate in a spirit of “global partnership” with “common but differentiated responsibilities”. It is also worth mentioning the precautionary approach in the principle 15, which calls on states to act on “threats of serious or irreversible damage” even where there is a “lack of full scientific certainty”, as well as the “polluter-pays” principle, which calls the national authorities to “promote the internalization of environmental costs”.
The implementation of the Rio Declaration was mainly a responsibility of every individual state itself. However, many international legal instruments for sustainable development established specific divisions for that purpose. For instance, the UN established a Commission on Sustainable Development for monitoring the implementation of the Rio Declaration and the Administrative Committee on Coordination established the Interagency Committee for Sustainable Development for checking the implementation by governments or non-governmental actors and the international community.
Conclusions on the declaratory principles
Both conferences succeed to generate global concern about environmental deterioration but have not resulted in action to match the level of international awareness and concern. However, they introduced other instruments who established the fact the environmentalism in not only a political and economical issue. All the Nations are morally obliged to respect the priorities of environmentalism.
The Energy Charter Treaty
The only global treaty dealing with international cooperation in the energy sector is the Energy Charter Treaty. The ECT gain to promote a long-term East-West energy cooperation. The ECT (as well as the Energy Charter Protocol on Energy Efficient and Related Environment Aspect) was signed in 1994 and came into legal force in 1998. With 54 members[1] the ECT is a legally-binding multilateral instrument.
The ECT reaffirms the principle of national sovereignty over natural resources. The country-members can establish their own energy policies and can exercise freely their sovereign rights for exploitation of their natural resources in compliance with their obligations to the ECT. Even though the ECT have not strict provisions regarding the environmental protection or sustainable energy use, requires from states to ‘have regard to improving energy efficiency to developing and using renewable energy sources, to promoting the use of cleaner fuels and to employing technologies and technological means that reduce pollution’. It is worth mentioning here that the Energy Charter Protocol on Energy Efficiency and Related Environmental Aspects, which was build on the provisions of the ECT, helps to strengthen the commitment for sustainable use. The states under the PEEREA are obliged to formulate clear policy in order to improve energy efficiency and reduce the energy cycle’s negative environmental impact. Furthermore, according to the PEEREA the states must establish a forum for practical implementation of measures (including taxes, pricing policies in the energy sector, environmentally related subsidies, etc). Even with ECT, I believe that the environmental policies are different from state to state because of the different priorities of every state.
The United Nations Convention on the Law of the Sea (UNCLOS)
The III UN Conference on the Law of the Sea lasted from 1973 to 1982 and with the participation of 161 parties established the UNCLOS which regulates ‘the use of the world’s seas and oceans, inter alia, to ensure the conservation and equitable usage of resources and the marine environment and to ensure the protection and preservation of the living resources of the sea‘. UNCLOS was the first global framework regarding the exploitation and conservation of the sea’s resources and the environmental protection among the recognition of the freedom of navigating. In Articles 192-195 of UNCLOS, the protection of the marine environment is clearly an obligation to the members,[2] whilst the relevant pollution provisions must be reading in conjunction with the other ‘rules and standards’ set by competent international organizations such as the International Maritime Organization. It means that UNCLOS planned to be the ‘Umbrella Convention’ to the future international environmental treaties and agreements.
Through the UNCLOS it is not prohibited the coastal states to deplete and over-exploit the energy resources in their continental shelf although it is a widespread environmental rule that the production control is a common management practice aimed to maintain the long-term sustainability of exploitation. Furthermore, it is a customary law that the coastal state has duty to exercise reasonable care to prevent pollution in the process of exploration and exploitation of its continental shelf.
Specifically, the coastal and flag states under UNCLOS have the exclusive rights to authorize and regulate the drilling[3], the construction, operation, use of installations, and structures in their EEZ or on their continental shelf. Also coastal states may lay submarine cables and pipelines on their continental shelf, including the right to prevent, reduce and control pollution. Also there is a general obligation to remove entirely the platform when it impacts on the environment and on freedom of navigation. Full decommissioning of platforms is compulsory under the Continental Shelf Convention 1958.
The UNCLOS is recognized as a milestone in the history of legal framework of offshore actives, but as every other international treaty, it strongly relies on the national regulations to transpose and implement these obligations into national legal systems. Its weakness is that states may not view these provisions as a priority on their legislative agenda.
Other Multilateral Instruments
The MARPOL Convention (The International Convention for the Prevention of Pollution from Ships (MARPOL) adopted on 2 November 1973 by the International Maritime Organization) covers the issue of the pollution from ship operations and transit. It regulates the pollution by oil, chemicals, harmful substance in packaged form, sewage, garbage and air pollution. The MARPOL incorporated many provisions related to the pollution of the seas on the transportation of oil from the OILPOL Convention. (Oil Pollution Convention, 1954).
The London Convention (entered into force in 1975) on the prevention of marine pollution by dumpling of wastes and other matter is an agreement who aims to control the pollution of the sea by dumping and to encourage regional agreements accompanying to the Convention. A Protocol was adopted to modernize the Convention, and eventually replace it. The protocol entered into force in 2006 and there are currently 45 Parties to it. According to the Protocol all dumping is prohibited, except for possibly acceptable wastes on the so-called “reverse list”.
At regional level there is the Convention for the Protection of the Environment of the North-East Atlantic (OSPAR came into force 1998) who deals with specific areas to all waters from internal out to high seas, including seabed/subsoil, covering the North Sea, parts of Arctic Ocean, and North East-Atlantic.
European Union and environmental energy protection
The Lisbon Treaty established its own impact on energy policy from an environmental perspective. One of the specific policy goals of the EU in its external relations is the sustainable development. Specifically, ‘the Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment’.
The EU apart from its recommendations regarding common environmental policy, through the years, have developed various Directives, Resolutions, Decisions which made an environmental action program a reality. It is worth mentioning the European Parliament and Council Decision 2850/2000/EC which sets up an EU legal framework for cooperation in the ground of accidental or deliberate marine pollution, the Directive 96/61/EC concerning integrated pollution prevention and control, the Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (it amended three times, 97/11/EC, 2003/35/EC, 2009/31/EC, and have been codified by Directive 2011/92/EU of 13 December 2011). Also, the EU established Directive 2001/42/EC on the assessment of the effects of certain plans programs on the environment (SEA Directive).
In recent times, the Community adopted a Directive (Directive 201/30/EU) on the safety of offshore oil and gas operations. According to the relevant directive, the EU Members (until the 19th of July 2015 the Member States are expected to transpose into their national laws) in order to prevent accidents are obligated to adopt measures as the Precautionary Principle (article 3), to submit emergency response plans, reports on major hazards, safety and environmental management system and it sets conditions for safe offshore operations as well as international cooperation
The national level
All countries – developed and developing countries- while are trying to assuring the economic and social development has to face the same difficult task: to guarantee the lasting utilization of natural resources at the lowest possible environmental cost. Unfortunately, this task is being regulating in accordance with the needs of every individual country.
Cyprus
The legislation regarding the exploitation of natural resources in Cyprus is based on country’s obligations under EU law and international law. The Republic of Cyprus ratified in 1988 the United Nations Convention on the Law of the Sea (UNCLOS ’82). A number of agreements have been signed between the Republic of Cyprus and its neighbouring countries for defining and regulating its EEZ. Hydrocarbon activities are also subject to general Cypriot laws and regulations on environmental protections, health and safety.
The hydrocarbon exploration and exploitation activities in the Republic of Cyprus are governed by the Hydrocarbon (Prospection, Exploration and Exploitation) Law of 2007 (No.4 (I)/2007) and the Hydrocarbon (Prospection, Exploration and Exploitation) Regulations of 2007 and 2009 (No.51/2007 and No.113/2009).
The legal framework applies to the territorial waters, the continental shelf and the Exclusive Economic Zone of the Republic of Cyprus. Hydrocarbon activities are subject to general Cypriot laws and regulations on environmental protection, health and safety.
Furthermore, Cyprus is a full member state of the European Union. Therefore, the European Union Directive on the conditions for granting and using authorizations for the prospection, exploration and production of hydrocarbons (Directive 94/22/EC) and other relevant EU legislation applies to oil and gas activities offshore Cyprus.
According to the provisions of the Assessment of Impact on the Environmental from Certain Plans and/or Programmes Law (No. 102(I)/2005), which is harmonized with Directive 2001/42/EC of the European Parliament and of the Council, a Strategic Environmental Assessment (SEA) is required for the consideration of environmental protection and sustainable development in decisions regarding Government plans and programmes.
The Republic of Cyprus has also carried out a Strategic Environmental Assessment (SEA) in order to identify, describe and evaluate the likely significant effects on the environmental effects of implementing hydrocarbon exploration and exploitation activities. All applicants are bound to follow and comply with the results and recommendations of the SEA. Moreover, every licensee shall carry out hydrocarbons operations in a proper, safe and workmanlike manner and in accordance with good hydrocarbon field practices and the relevant national legislation. Also every licensee shall ensure that hydrocarbon operations are conducted in an environmentally acceptable and safe manner, consistent with the environmental legislation and the good international industry practise.
According the Cyprus law, the applicants who seek for an exploration license has a number of environmental obligations under international, regional and local law and, inter alia, must carry out an environmental impact assessment.
Conclusion
It is obvious that the environmental issue regarding the exploitation of natural resources is a very sensible and major area of law that needs globally concern and protection. From a comparative legal perspective it is obvious that different jurisdictions apply different legal framework over energy recourses. International actors with functional and regional nature such as the UN, EU respectively as well as the national laws of States are trying to regulate the process of exploitation in order to achieve sustainable development but even if are actors have goal of the environmental energy protection are coming out with major differences that complicate the system of environmental protection. Every state balances the environmental protection regarding its priorities and the direction is opposite from a universal compliance. To ensure environmental sustainability and sustainable development in the exploitation of natural resources an international collaboration must have happen between environmental experts, international institutes and organizations to achieved the best possible environmental legal framework with national implementation and application but firstly, the nations and institutions must change their mentality culture and approach to that major environmental issue. It must become a priority.
[1] The Treaty has been signed by 52 states, the European Community and Euratom. Hence, the total number of its members is 54). USA, Canada, Japan, Australia and New Zealand has signed the ECT. The Russian Federation signed the Energy Charter Treaty and was applying it provisionally until 18 October 2009.
[2] In particular article 194 (3) of UNCLOS states that ‘the measures taken pursuant to this Part shall deal with all sources of pollution of the marine environment [inter alia] pollution from installations and devices used in exploration or exploitation of the natural resources of the seabed and subsoil […]
[3]In Articles 60-80 UNCLOS is regulating the drilling when it takes place in the maritime zones.