Rachael Lorna Johnstone, Offshore Oil and Gas Development in the Arctic under International Law: Risk and Responsibility (Leiden: Brill, 2015)

The Arctic is estimated to hold the world’s largest remaining untapped gas reserves and some of its largest undeveloped oil reserves. Developing these resources in the harsh Arctic environment will be complex and challenging and can have far-reaching consequences. Consequently, the prevention of offshore marine pollution from oil and gas development activities is amongst the more important issues that need to be discussed in this context.

Offshore Oil and Gas Development under International Law: Risk and Responsibility, by Professor Rachael Lorna Johnstone of the University of Akureyri is an ambitious undertaking that touches upon a number of important issues of international law. This well-written and well-organised monograph clearly fulfils its ambitions. As the title of the book indicates, it seeks to examine the international law that applies to the extraction of oil and gas from the ocean floor in the Arctic by setting out the obligations of States to govern these operations and their potential responsibility for environmental damage. These issues are primarily addressed from the perspectives of international environmental law, human rights law and State responsibility.

The book contains two main substantive parts and is divided into 12 chapters. The first substantive part, which follows the introductory chapter, is titled “The Obligations of States to Protect the Arctic Marine Environment”. This part includes chapters that address “The Right to Resources and the ‘No Harm Principle’”, “Human Rights and the Rights of Indigenous Peoples”, “Caution and Precaution”, “The Environmental Impact Assessment” and “Monitoring and Follow-Up”. These chapters focus mostly on issues concerning international environmental law. The chapter on human rights is especially refreshing, as it provides an important insight into the protection of human rights, especially but not exclusively the human rights of indigenous peoples. Prof. Johnstone has a realistic view of the law and distinguishes clearly between what the law is and what it possibly will or should be in the future.

One of the more energising discussions in the book is Prof. Johnstone’s argument that the Arctic States, like all other States, have the right to use, develop and benefit from the resources of the continental shelf so long as they do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction or trespass on the cultural, resource and property rights of their indigenous peoples (pp. 29-30). In short, what Prof. Johnstone is saying is that Arctic States are under no obligation to the global community to not develop the resources of their shelves.

The second substantive part is titled “Responsibility and Liability”. It contains an introductory chapter, a long and detailed chapter titled “State Responsibility for Wrongful Conduct” and a shorter chapter titled “Liability for Damage in the Absence of State’s Wrongful Conduct”. In this part of the book, Prof. Johnstone pays special attention to State responsibility and the liability of smaller States, a neglected issue in academic forums. As Johnstone notes, “The law of State responsibility as applicable to environmental injury is particularly important to smaller States with jurisdiction over companies investing in extraction or on whose continental shelf it takes place, such as Iceland and in a future independent Greenland, that could not realistically shoulder an unlimited liability” (p. 191). In addition, she provides, “It is extremely unlikely that any kind of residual State liability would feature, given the financial positions of Greenland and Iceland and the general reluctance of most States to act as guarantor of last resort for the other industries” (p. 259).

A few issues can be criticized. One might wonder why Prof. Johnstone does not address the impact of international investment law in the energy sector in the Arctic. It is an important topic for offshore gas and oil development in the Arctic. In addition, there is little focus on bilateral maritime boundary agreements in the Arctic Ocean. Some of them include provisions concerning shared resources. Moreover, Prof. Johnstone could have addressed considerations regarding shared responsibility for a wrongful act by multiple States. Furthermore, the norms developed within OSPAR that are applicable to the oil and gas sector could have been addressed.

All together, this book is strongly recommended. The discussion of how the rules of State responsibility and liability apply in the context of the primary rules, discussed in the first part of the book, is exceptionally well done. Although the title implies that it is a narrow study, it is not. The book raises important questions that should be relevant to anyone who is interested in international law, whether they are students, academics or practitioners. In summary, buy the book, read it and then read it again.

About Bjarni Már Magnússon

Bjarni Már Magnússon is Assistant Professor at Reykjavik University, Fulbright Arctic Initiative Scholar and Visiting Fellow at Duke University School of Law.