Oil Pollution on the High Seas: The Establishment of an International Regime to Deal with Public International Law and Private Law Issues and the Role of Non-State Actors in Their Resolution Prior to and at the 1969 International Legal Conference on Marine Pollution Damage (“Brussels Conference”)
Date of Degree
International Relations, Transnational System, Non-State Actors, Marine Oil Pollution, Environment
On March 18, 1967, the Torrey Canyon, an oil tanker flying the flag of Liberia and carrying thirty million gallons of crude oil, smashed onto rocks off the coast of the United Kingdom. The oil spill metastasized into an environmental catastrophe, and this event became the first major environmental disaster of the electronic media age. As a direct result of the Torrey Canyon catastrophe, two treaties were signed in November 1969, at a conference in Brussels sponsored by the Intergovernmental Maritime Consultative Organization (IMCO), a United Nations Specialized Agency. The first treaty (the public law treaty) dealt with the right of a State to intervene on the high seas in the event of potential damage from an oil spill, while the second treaty (the private law treaty) dealt with the issue of financial liability of the owner (or charterer) of a ship to those damaged by an oil spill.
The second treaty was and remains unique in that the participants agreed to a legally enforceable compensation scheme in an amount of up to fourteen million dollars per incident (subsequently raised over the years to several hundred million dollars) to damaged parties. Moreover, the Brussels system of legal liability and mandatory compensation, despite the growth of the environmental movement in the second half century after the Torrey Canyon incident, has not been replicated by other proposals or treaties (e.g., the Paris Climate Accords). Therefore, the central question for analysis is to explain and trace the factors that produced the treaty and its compensation scheme, and further, to explain the relevance of these processes to regime theory and regime formation.
Accordingly, this dissertation examines the intense bargaining among States, IMCO, and Non-State Actors in the establishment of the international regime at Brussels. Particular emphasis is placed on the roles of the Non-State Actors, primarily shipping interests, international insurance companies, and oil companies, in attempting to safeguard their sectoral interests during the regime formation process. Further, individuals who held leadership positions in some of these Non-State Actors also had professional relationships that overlapped with their roles as members of State delegations and their official roles within IMCO. These interactions are examined through concepts in interest group theory as developed by political scientists, especially clientism, regulatory capture and non-decisions.
The bargaining process itself is analyzed through the neoliberal approach to regime formation, which emphasizes negotiations and bargaining among the parties. This is in contradistinction to a realist approach, which would center on a solution being imposed by the strongest party. This approach also differs from the cognitivist approach, which would emphasize that the participants were using a knowledge-based strategy, such as working to develop a solution to marine pollution based on a common belief that the environmental integrity of the oceans represents the highest good.
The dissertation further examines the impact on regime resilience of exogenous events, such as the Exxon Valdez oil spill in 1989, which, for all practical purposes, resulted in the United States abandoning the multinational approach created at Brussels in favor of unilateral domestic legislation, the Oil Pollution Act of 1990. The American unilateral approach, the Brussels structure, and the alternate independent entities established by Non-State Actors (the Tanker Owners Voluntary Agreement Concerning Liability for Oil Pollution representing shipping interests, and the Contract Regarding an Interim Supplement to Tanker Liability for Oil Pollution representing oil interests) all combined to form a regime complex with multiple power centers.
Finally, on a broader theoretical basis, this study relies on a critical case study. While the utility of critical case studies has been debated for decades among social scientists, its usefulness as a tool in analyzing the regime complex first established a half century ago at Brussels is crucial to understanding why and how this regime developed.
Ottensoser, Milton, "Oil Pollution on the High Seas: The Establishment of an International Regime to Deal with Public International Law and Private Law Issues and the Role of Non-State Actors in Their Resolution Prior to and at the 1969 International Legal Conference on Marine Pollution Damage (“Brussels Conference”)" (2018). CUNY Academic Works.