2014 CROSS-BORDER PIPELINE SAFETY 59countries.2 0 However, in some cases, the pipeline only passes from an inlet country to an output country, whether terrestrial, such asthe Iran-Turke
Cross-Border Pipeline Risks
Although pipelines are generally considered a safe method for transporting hydrocarbons, the risk of accidents and their consequences remains significant and should not be underestimated A thorough analysis of reported pipeline accidents can provide valuable insights into why preventive measures fail, the types of damage incurred, and how losses are compensated Consequently, assessing the effectiveness of regulations designed to prevent cross-border pipeline accidents requires first examining past incidents along transnational routes to identify common causes, safeguards that did not hold, and opportunities for improvement By understanding these incidents, regulators and operators can strengthen safety standards and preventive measures, reducing risk and enhancing accountability across borders.
Although numerous cross-border pipeline accidents have occurred, the exact count remains difficult to determine Data on pipeline incidents are primarily collected by national and international agencies, which means that assessments of oil and gas pipeline accidents have been developed at international and regional levels Consequently, to better understand the potential risks associated with pipelines, coordinated international and regional analyses are key.
42 Lucia Citro & Roberta Valentina Gagliardi, Risk Assessment of Hydrocarbon
Releases by Pipelines, 28 CHEM ENGINEERING TRANSACTIONs 85, 85 (2012) (It.), available at http://www.aidic.it/cet/12/28/015.pdf.
43 See Montiel et al., supra note 30, at 78-81; see also Peter Burgherr & Stefan Hirschberg, Severe Accident Risks in Fossil Energy Chains: A Comparative Analysis, 33
A 2008 Swiss study (Energy 538, 538-39) suggests that major pipeline accidents are more likely to be reported, and that a range of failures contribute to incidents in the transportation of oil and gas via pipelines.
44 Montiel et al., supra note 30, at 78 (noting the importance of studying the origin of accidents through historical analysis).
45 See RAFAEL KANDIYOTI, PIPELINES: FLOWING OIL AND CRUDE POLITICs 32, 37
46 Burgherr & Hirschberg, supra note 43, at 539; Montiel et al., supra note 30, at
47 See HANQIN, supra note 36, at 32 (stating that in addition to "international activities, states have also adopted a number of treaties on civil liability for certain ultra- hazardous activities").
CROSS-BORDER PIPELINE SAFETY some information will be presented based on reports of oil and gas incidents, even if they do not all relate to cross-border accidents.
Understanding the distinction between accidental and non-accidental damage is essential when assessing pipeline risk, as pipeline accidents depend on location and type and arise from a wide range of failure modes whose frequency and severity are shaped by many indicators Pipeline projects have distinctive characteristics compared with other industrial activities, which can amplify their potential environmental impacts, especially when a pipeline’s long route traverses sensitive environmental and residential areas, creating a continuous risk of incidents along the route; risks stem from external factors like excavation as well as internal factors such as corrosion Data from the Energy-Related Severe Accident Database (ENSAD) covering 1969–1996 show that the majority of natural gas pipeline accidents were caused by mechanical and impact failures, while external causes and human error accounted for a smaller share, with some incidents remaining unknown The construction and operation of a pipeline also require adherence to the applicable state of the technology and best practices for laying pipes.
49 See Montiel et al., supra note 30, at 80-82 (illustrating through diagrams that a variety of factors are considered when analyzing the cause of a pipeline accident).
51 W KENT MUHLBAUER, PIPELINE RISK MANAGEMENT MANUAL: IDEAS,
52 See Burgherr & Hirschberg, supra note 43, at 543.
53 See DAVID D KEMP, EXPLORING ENVIRONMENTAL ISSUES: AN INTEGRATED APPROACH 200-01 (2004); Stefan Hirschberg et al., Severe Accidents in the Energy Sector: Comparative Perspective, I I I J OF HAZARDOUS MATERIALS 57, 64 (2004) (Neth.).
56 Risk Assessment: Comparative Risk Assessment and the ENSAD Database, PAUL
SCHERRER INST., http://www.psi.ch/ta/risk-assessment (last visited October 2, 2014) (providing a comprehensive collection of severe energy related accidents).
57 Hirschberg et al., supra note 53, at 64.
Cross-border pipelines carry hazardous substances and involve activities along the route that can threaten sensitive environmental areas, with the risks of spills and explosions The transported materials are categorized as hazardous, underscoring the need for a broad framework of environmental and safety regulations designed to minimize the likelihood of accidents and their after-effects While strict safety standards can effectively mitigate these risks, implementing them may also raise project and operating costs, potentially resulting in higher prices.
Natural gas transported through high‑pressure cross‑border pipelines is highly flammable and carries a strong explosion risk, with even a small spark capable of triggering a rupture that can cause severe injuries, property damage, and environmental harm Oil pipelines can fail and spill, polluting both marine and terrestrial ecosystems, while both gas and oil systems remain prone to ignition, potentially leading to catastrophic explosions and large casualties Because of these hazards, regulatory bodies classify gas and oil pipelines as hazardous activities requiring stringent safety measures and oversight.
61 UNITED NATIONS, Recommendations on the Transport of Dangerous Goods
(2011), available at http://www.unece.org/fileadmin/DAM/trans/danger/publi /unrec/rev 17/English/Rev 17_Volume I.pdf (detailing a list of hazardous substances).
62 See HANQUIN, supra note 36, at 19, 30-32 (discussing the "existing international regimes relating to accidental damage caused by ultra-hazardous activities").
63 RAFAEL KANDIYOTI, supra note 45, at 33 ("[U]ltimate safety can be an expensive state.").
64 See Vladimir Stevanovid, Security of Gas Pipelines Security and Reliability of
Damaged Structures and Defective Materials, in SECURITY & RELIABILITY OF DAMAGED STRUCTURES & DEFECTIVE MATERIALS 253, 254 (Guy Pluvinage & Aleksandar Sedmak eds., 2009) (Serb.).
65 See id at 257 (stating that once the spark was initiated, other explosions succeeded).
66 KEMP, supra note 53, at 200; see Hirschberg et al., supra note 53, at 64.
67 R DENYS, PIPELINE TECHNOLOGY: PROCEEDINGS OF THE 3RD INTERNATIONAL
PIPELINE TECHNOLOGY CONFERENCE, BRUGHES, BELGIUM, MAY 21-24,2000 (2000).
68 Directive 2012/18/EC, of the European Parliament and of the Council of 4 July
2012 on the Control of Major-Accident Hazards Involving Dangerous Substances, amending and subsequently repealing Council Directive 96/82/EC, 2012 O.J (L 197) 19 [hereinafter Parliament Directive].
69 United Nations Convention on Environmental Impact Assessment in a Transboundary Context, app 1, Feb 5, 1991, 1989 U.N.T.S 310 [hereinafter U.N
Cross-border pipeline safety hinges on the chemical and physical features of oil and gas pipelines To provide a realistic and comparative insight into pipeline accidents, this article presents a short report based on three different databases, summarized in Table 1 Due to limited information on incurred environmental damages and economic losses, Table 1 shows only the numbers of accidents and personal injuries The data indicate that a considerable number of oil and gas pipeline accidents have occurred over the last two decades, with a high number of personal injuries. -**Support Pollinations.AI:** -🌸 **Ad** 🌸Powered by Pollinations.AI free text APIs [Support our mission](https://pollinations.ai/redirect/kofi) to keep AI accessible for everyone.
70 See Parliament Directive, supra note 68; U.N Convention, supra note 69
71 Details of the environmental damage and the economic losses related to those pipeline accidents could only be provided on a case-by case-basis.
66 N.C J INT'L L & COM REG Vol XL
Table 1: Comparative Data About Oil and Gas Pipeline Accidents in the US, Europe, and a Severe Accidents Category
ENSAD analyzes onshore gas pipelines in the Western world, drawing on EGIG (European Gas Incident Data Hub) records and US Department of Transportation safety data to examine severe accidents with fatalities from 1992 to 2011 The combined data indicate 72 fatalities across Western pipelines, with the US and European sites showing similar trends in risk factors such as pipeline integrity, construction practices, and operational management The findings underscore the need for enhanced reporting, stricter safety standards, and proactive risk mitigation to reduce future fatalities in onshore gas pipelines.
The CONCAWEn 7 for the onshore oil pipelines
Energy Accidents Fatalities Accidents Fatalities Accidents Fatalities
(hazardous (approxima (approxi liquids) tely) mately)
The remainder of this section describes oil and gas pipeline accidents and their associated damage, outlining the scope of safety and infrastructure risk Each subsection then analyzes the potentially adverse impacts of these accidents from a theoretical perspective, concentrating on personal injury and related outcomes to frame risk factors, mechanisms, and potential mitigation.
72 See generally, About EGIG, EGIG, http://www.egig.eu/about-egig (last visited
Established in 1982 by six European gas transmission system operators, the European Gas Pipeline Data Group (EGIG) was created to gather data on unintentional gas releases in pipeline transmission systems It later expanded to include fifteen major gas transmission operators in Western Europe and now owns an extensive gas pipeline‑incident database, a record noted in Gas Pipeline Incidents: 8th Report of the European Gas Pipeline.
Incident Data Group, EGIG (2011), http://www.egig.eu/uploads/bestanden/96652994- c9af4612-8467-9bc6c2ed3fb3.
CONCAWE has collected spillage data on European cross-country oil pipelines since 1963, focusing on spill volumes, cleanup and recovery, environmental consequences, and the causes of incidents The organization’s About Us page explains this data program, and its CONCAWE Reports archive provides a monthly record of the related findings.
Cross-border pipeline safety is a critical issue due to environmental damage and economic losses, and this article presents recent cross-border pipeline accidents as case studies to illustrate the real-world consequences From a legal perspective, oil and gas pipelines share similarities in regulation and liability, but from a technical perspective they differ in design, materials, operating pressures, and failure modes, which shape risk and response strategies By examining both perspectives, the piece highlights how governance, engineering practices, and cross-border coordination combine to influence safety outcomes in transnational oil and gas infrastructure.
Gas Pipeline Risks
Gas pipeline accidents can cause personal injuries, substantial economic losses, and environmental damage Construction defects and corrosion tend to cause small rupture holes, but ground movement can create larger ruptures The impact of an explosion depends on rupture hole size, and such explosions can inflict catastrophic damage to people and property Economically, securing a reliable natural gas supply is critical, as interruptions are costly for stakeholders Because the costs of interruptions can be high, restoring gas pipelines quickly is as important as preventing them in the first place Natural gas is transported under high pressure and is a non-storable, network-bound energy carrier, so if any part of a pipeline cannot operate and no alternative transportation is available, flow interruption reduces the security of supply.
74 David J Ramberg, The Relationship Between Crude Oil & Natural Gas Spot Prices & Its Stability Over Time (June 2010) (unpublished Master's thesis, Massachusetts Institute for Technology).
75 Anderson J Brito & Adiel T de Almeida, Multi-Attribute Risk Assessmentfor Risk Ranking of Natural Gas Pipelines, 94 RELIABILITY ENGINEERING & SYs SAFETY
78 See PHILIP ANDREWS-SPEED & PETER D CAMERON, SECURITY OF INTERNATIONAL OIL AND GAS: CHALLENGES AND RESEARCH PRIORITIES 2-3 (2006); see also Hellmuth Weisser, The Security of Gas Supply-A Critical Issue for Europe?, 35
ENERGY PoL'Y 1, 1-2 (2005) (discussing the supremacy of gas energy to oil).
79 See PAUL STEVENS, CROSS BORDER OIL AND GAS PIPELINES: PROBLEMS AND
PROSPECTS 92 (2003) (discussing the Sonatrach Gas Pipeline where involved parties share the costs involved with any interruption of Sonatrach's production in Algeria).
80 See Henryk Faas et al., European Security: A European Perspective, ENERGY
SECURITY: INT'L & LOCAL ISSUES, THEORETICAL PERSPECTIVES, & CRITICAL ENERGY INFRASTRUCTURES 9, 16 (2011)
N.C J INT'L L & COM REG. through the entire chain of the pipeline.'
Moreover, "the restoration of gas supplies, once reconnected, is far more complex than for oil." 82 Before reconnecting, a gas engineer must be sure that the pipeline is free from any leaks or air." This is because the presence of either can "result in serious explosions." 8 4 Moreover, the restoration of gas flow is often lengthy work." Long waits can endanger the security of supply for consumers, who are dependent upon a constant supply of natural gas 6 Realizing this vital issue, the European Union prescribed specific directives in relation to the security of natural gas supply." Countries must also consider the economic impacts of the construction of cross-border gas pipelines for neighboring countries, even if the pipeline itself does not pass through their territory." Finally, environmental damage, such as air, water, and soil pollution can occur as a result of a gas pipeline accident as
Handmer and Dovers’ Handbook of Disaster Policies and Institutions (2nd ed., 2012) analyzes a pipeline explosion in Australia that interrupted gas transport across the region, with supplies severely restricted to top-priority facilities such as hospitals, illustrating how emergency management and climate change adaptation depend on effective prioritization of critical infrastructure to maintain essential services during disruptions.
82 See PAUL STEVENS, TRANSIT TROUBLES: PIPELINES AS A SOURCE OF CONFLICT 12
84 Id.; see also Explosion Kills Two Engineers Working on West Africa Gas Pipeline, GHANAWEB (October 31, 2012), http://www.ghanaweb.com/GhanaHome Page/NewsArchive/artikel.php?ID%4924.
85 See Ghana Gas Pipeline Delayed to April-Minister, REUTERS (Sept 19, 2013,
7:09 AM), http://www.reuters.com/article/2013/09/19/ghana-gas-pipeline-idUSL5NO
Emmanuel Arma-Kofi Buah, who served as Ghana’s Minister for Energy and Petroleum, stated at the July 2013 Meet the Press briefing that gas supply had been halted for several months, highlighting persistent disruptions in the country’s energy sector The topic is frequently discussed in relation to the Ghana Gas Pipeline project and related energy infrastructure, with analyses by researchers such as John Handmer providing context on how supply interruptions affect policy and development.
& STEPHEN DOVERs, HANDBOOK OF DISASTER POLICIES AND INSTITUTIONS: IMPROVING EMERGENCY MANAGEMENT AND CLIMATE CHANGE ADAPTATION 25-26 (2nd ed 2012)
(explaining how facilities, for example hospitals, that depend on natural gas suffered during a halt in gas flow).
87 See Council Directive 2004/67, Measures to Safeguard Security of Natural Gas Supply, 2004 O.J (L 127) 92; see also Directive 2003/55, Concerning Common Rules for the Internal Market in Natural Gas, 2003 O.J (L 176) 57
Nord Stream's March 5, 2010 press release, "Ensures Unrestricted Access to Polish Ports," asserts that the Nord Stream gas pipeline will provide unrestricted access to Polish ports, while also outlining Poland's concerns about the potential adverse effects of its construction on sea traffic and port safety in the Baltic region.
Cross-border pipeline safety focuses on preventing gas leaks that release chemicals into the air and cause air pollution A leak in a gas pipeline releases pollutants into the atmosphere, degrading air quality, and a leak in submarine gas pipelines adversely affects water quality and marine wildlife Robust safety standards, continuous monitoring, and cross-border cooperation help minimize environmental and public health risks from gas pipeline infrastructure.
Although gas pipeline accidents carry theoretical risks of personal injury, economic loss, and environmental pollution, the actual damage reported in cross-border incidents more accurately reflects their destructive impact Table 2 presents recent examples of cross-border pipeline accidents, illustrating that the theoretical risks can indeed translate into real damage; however, not every incident results in injury, financial loss, or environmental harm The way damage is assessed and reported depends on the applicable law and the jurisdiction where the accident occurs, which can influence the interpretation of risk and accountability.
The Draft Environmental Impact Statement for the proposed 1979 OCS Lease Sale 470 (proposed 1978) outlines how air pollution can degrade water quality and threaten marine wildlife, while Vladimir Stevanović discusses the security of gas pipelines in damaged structures and defective materials, Stanislav A Patin examines the environmental impact of offshore oil and gas development on marine ecosystems as well as air pollution, and Kemp adds additional context to the overall environmental risk profile of offshore energy extraction.
90 See, e.g., U.S BUREAU OF LAND MGMT., supra note 89, at 470 (discussing the various forms of gas that can be released during a gas pipeline break); PATIN, supra note
91 See PATIN, supra note 89 (discussing how the release of gas from seepage in gas- bearing structures under water can result in water pollution).
Stevanovid recounts a Russian chemical accident in which a petroleum gas leak persisted for several days A spark from a passing train ignited the escaping gas, triggering an explosion that left 462 people dead and 706 injured (Stevanovid, supra note 89, at 256–57).
An excerpt cited as 93 Id at 256 analyzes a pipeline accident in New Jersey, describing injuries to individuals, property destruction, and substantial economic losses for the state, while it makes no mention of environmental pollution.
70 N.C J INT'L L & COM REG Vol XL
Table 2: Recent Examples of Cross-border Gas Pipeline Accidents
Description Causes of Place of Concerned Personal Damage Losses in of Accidents Accident Countries Injuries to the the
Pipelines & Date Enviro- Economy nment
A transit Leakage Belgium Norwegian 24 N/A 100 gas pipeline and 2004 Belgium; fatalities million in explosion France More curo
The Iran- Sabotage Eastern Iran; 28 N/A N/A,
Turkey Gas by part of Turkey injured supply
Pipeline" Kurdish Turkey, was separatists October stopped
The Baku- Not clear Eastern Azerbaijan; None N/A N/A,
Tbilisi- part of Georgia; supply
The West Ship August Nigeria; A large Flow was
African Gas anchor 2012 (a Togo; - but stopped for
Pipeline" ruptured break in the Benin; unclear nearly one the pipeline gas Ghana amount of year, pipeline in natural shortfall of
94 See Rupture & Ignition, supra note II
95 See Explosion Rock's Iran's Gas Export Pipeline in Turkey, PREssTV (Oct 22,
2012), http://www.presstv.ir/detail/2012/10/22/268050/blast-hits-iran-gas-pipeline-in- turkey/.
96 See Explosion Hits Baku-Tbilisi-Erzurum Gas Pipeline; Cause Unknown,
AZERNEWS (Oct 4, 2012), http://www.azemews.az/oilandgas/44402.html.
Following the West Africa gas pipeline explosion, the Ghanaian president urged Nigeria to intervene, a request reported by Citizen Online on December 12, 2012 The article emphasizes the call for Nigerian involvement in addressing the incident.
Oil Pipeline Accidents
Oil pipeline accidents, like those involving gas, can cause significant personal injury, economic loss, and environmental damage; however, the scale and nature of harm differ because oil has distinct physical and chemical properties from natural gas This section outlines the potential risks associated with transporting oil through pipelines and discusses how these risks manifest in real‑world incidents It is complemented by recent cross-border oil pipeline accident examples, which are summarized in Table 3.
Oil can be extremely destructive due to its rapid movement across water, allowing it to spread quickly and cause widespread environmental damage This rapid spread is a key feature that makes oil spills difficult to contain Additionally, oil's high flammability raises the risk of explosions that can result in serious personal injuries and extensive property damage Oil is also highly toxic to aquatic life and ecosystems, threatening water quality and wildlife health.
98 See West African States Unhappy with WAPCo, GHANAWEB (March 29, 2013), http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID&941 1
Ekpen James Omobude’s study on Cross-Border Oil and Gas Pipelines and the Role of the Transit Country: Economics, Challenges and Solutions (2012) explains the technical differences between gas and oil pipelines and how those differences shape cross-border projects Gas pipelines operate at higher pressures, rely on continuous compression, and prioritize line-pack management, whereas oil pipelines focus on pumping systems, viscosity control, and material insulation suitable for oil's properties The work also emphasizes the critical role of the transit country in routing, regulatory alignment, and fee structures, since transit decisions directly affect project economics and regional energy security It outlines key challenges—regulatory fragmentation, political risk, security threats, and divergent technical standards—that can hinder collaboration across borders To address these, Omobude proposes solutions such as harmonized international standards, transparent transit agreements, stable tariff regimes, shared investment in redundancy, and cooperative governance mechanisms that align technical, economic, and legal frameworks to boost efficiency and regional integration.
Key sources on oil spill science and its legal implications include Mervin Fingas' Oil Spill Science and Technology (1st ed., 2011), which provides foundational discussions of the science and technology behind oil spills, including material cited on page 196; and Max Blumer's "Scientific Aspects of the Oil Spill Problem," published in the BC Environmental Affairs Law Review (1971) (vol 1, pp 54–56) The Blumer article is accessible online via the BC Law digital commons at lawdigitalcommons.bc.edu/ealr/vol1iss1/4 Together, these works frame the scientific and regulatory context of oil spill research and policy, essential for understanding environmental risk, spill response, and legal frameworks.
102 See BENJAMIN K SOVACOOL, The Costs of Failure: A Preliminary Assessment of
Major Energy Accidents, 1907-2007, ENERGY POL'Y 36, 1802-20 (2008)
Togo)98 gas 300 leaked megawatts into the of power sea production only in Ghana Restoration December 2 fatalities works on 2012 (an the line accident in
N.C J INT'L L & COM REG. ingest and can lead to serious health problems in humans."o 3 Therefore, the risk of harm from contamination can cause serious personal injuries.
Oil pipeline interruptions, like those on gas networks, can have significant economic consequences Because oil is a storable commodity and is not transported at high pressure, the urgency around security of supply is generally less than for natural gas, but disruptions in cross-border oil flows can still incur substantial costs for stakeholders Cleanup costs must not be underestimated, and although oil pipelines differ from gas pipelines in several respects, oil pipeline accidents continue to carry severe economic impacts.
Oil-related disasters, especially major oil spills, are among the most serious forms of pollution from maritime transport and can devastate ocean ecosystems Beyond spills, oil pipeline ruptures are also highly destructive to the environment and wildlife Oil toxicity affects not only humans but wildlife as well, and the damage to wildlife can persist for years or for the lifetime of the affected organisms.
Oil vapors can be hazardous to the marine environment and its wildlife, threatening air quality and coastal ecosystems In addition, leakage from buried pipelines poses a major health risk by contaminating water and soil quality, which can affect nearby communities and marine life alike Preventing leaks, maintaining pipeline integrity, and monitoring vapor emissions are essential steps to protect environmental and public health.
103 See MAX BLUMER, supra note 100, at 54, 56 (discussing how exposure to oil can cause cancer in humans).
104 See MAMUKA TSERETELI, The Impact of the Russia-Georgia War on the South
Caucasus Transportation Corridor, JAMESTOwN FOUNDATION 13 (2009) (discussing the economic loss Turkey experienced during a period of oil suspension).
105 See Dagmar Schmidt Etkin, Environmental Research Consulting, Presentation at the Arctic and Marine Oilspill Program Technical Seminar: Worldwide Analysis of Marine Oil Spill Cleanup Cost Factors (June 2000).
106 See JEAN-PAUL RODRIGUE, CLAUDE COMTOIS & BRIAN SLACK, THE GEOGRAPHY
107 See Max Blumer, Scientific Aspects ofthe Oil Spill Problem, I B.C ENVTL AFF
L REV 54, 56 (1971), available at http://lawdigitalcommons.bc. edulealr/vol l/issl/4.
108 Id at 55-57 (explaining the dangers of oil exposure to marine life).
11 See JENNIFER ANNE HILL, OIL SPILLS AND MARINE WILDLIFE: GUIDELINES FOR A RESPONSE PLAN FOR THE ISLE OF MULL, THE HEBRIDEAN WHALE AND DOLPHIN TRUST 38
(1999) (explaining how mammals that must periodically surface may be exposed to vapors created by oil when exposed to the atmosphere).
2014 CROSS-BORDER PIPELINE SAFETY 73 groundwater."' Thus, both marine and land environments are exposed to the potentially adverse effects of oil pipeline accidents.
Table 3: Recent Examples of Cross-border Oil Pipeline
Name of Cause of Year & Involved Environmental Property the the Place States Pollution & Damage &
Pipeline Accident Personal Injury Economic
Losses Unecha- N/A 2007 Belarus; (1) Spillage of 100 - (1) Interruption Ventspils Latvia; Russia; tons of diesel fuel of the flow
Pipeline Belarus Latvia when Russian (2)
Belarussina River, E440,000 costs flowing into Latvia of cleanup
(2) Some of the actions spilled diesel fuel polluted a 15 km stretch of the Ulla River
Socidt6 Break in 2007 Switzerland; 5,400 m3 of crude oil 50 million du a liquid France France; was discharged over related to
Pipeline hydro- Germany a 5-hectare consequences
Sud- carbon land area amidst the of this
Europcen pipeline nature reserve leakage, with
(SPSE)"' tens of millions devoted to ill See IGOR S ZEKTSER, GROUNDWATER AND THE ENVIRONMENT: APPLICATIONS FOR THE GLOBAL COMMUNITY 84 (Lorn G Everett ed., 2000).
112 See Belarus Environment Ministry Assessing Damage of Unecha- Ventspils
Pipeline Leak, SENNO REGIONAL EXECUTIVE COMMITTEE (Apr 23, 2007), http://www.senno.vitebsk-region.gov.by/en/news/region?idd.
113 Pipeline Ruptures in Belarussian River, Moscow TIMES (Mar 27, 2007), http://www.themoscowtimes.com/sitemap/paid/2007/3/article/pipeline-ruptures-in- belarussian-river/198152.html.
114 FRENCH MINISTRY FOR SUSTAINABLE DEVELOPMENT, LESSONS LEARNT FROMINDUSTRIAL ACCIDENTS 12 (2011), available at http://impel.eu/wp- content/uploads/2012/03/brochure_gbimpel20I pdf
74 N.C J INT'L L & COM REG Vol XL environmental restoration
Enbridgc A rupture 2010 United (1) Over 800,000 (1) About $800
Oil of the Michiga States; gallons of oil spilled million only Pipcline crude oil n, US Canada into Michigan, the for cleanup pipeline Kalamazoo River, actions and adjacent areas (2) 150
(2) Oil polluted families wildlife habitat and permanently resulted in the evacuated from closure of a large their homes"i 6 swath of the river to boaters and anglers
Kirkuk- A 2010 Turkey; Iraq Two people were N/A;
Ceyhan terrorist Turkey killed and one interruption of
Oil attack injured supply for
Pipelines Safety and Standards
Cross-Border Pipelines: The Legal Regime
There is no single international law instrument exclusive to transboundary oil and gas pipelines, though a range of multilateral and bilateral agreements are relevant to cross-border projects In practice, the rules that determine the applicable legal regime for a given cross-border pipeline are usually found in the bilateral or multilateral agreements entered into by the states involved, especially for transit pipelines Many pipelines are commissioned through commercial contracts among oil and gas companies, including state-owned entities, as illustrated by the Nord Stream gas pipeline Some pipelines are instead established through state contracts between the host state and investors or operators Because there is no uniform international legal regime, each cross-border pipeline operates under its own specific legal framework, dictated by the particular agreement governing it.
Cross-border pipeline agreements are the primary legal framework governing cross-border pipelines, serving as the most important source of law on this topic In addition to these agreements, we examine several key international conventions that shape the field: the Energy Charter Treaty (ECT) as a cornerstone of energy cooperation and investment protection; the United Nations Convention on the Law of the Sea (UNCLOS) for maritime routes and transit of pipelines; and the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention), which requires assessments when a project may cause environmental effects across borders.
128 See Vinogradov, supra note 34, at 75
Key references include the 2005 Framework Agreement on the Transmission of Natural Gas through a Pipeline between the United Kingdom of Great Britain and Northern Ireland and the Kingdom of the Netherlands (Cm 6675), specifically Article 2, and the 1999 Agreement Among the Azerbaijan Republic, Georgia and the Republic of Turkey Relating to the Transportation of Petroleum Via the Territories of the Azerbaijan Republic, Georgia and the Republic of Turkey through the Baku–Tbilisi–Ceyhan Main Export Pipeline, also with Article 2 Together, these instruments illustrate how international agreements regulate cross-border energy transport—gas via a UK–Netherlands pipeline and oil via BTC—across national frontiers.
131 T Koivurova & 1 Polonen, Transboundary Environmental Impact Assessment in the Case of the Baltic Sea Gas Pipeline, 25 INT'L J MARINE & COASTAL LAW 151, 156-
132 See, e.g., The Convention of Establishment between the Republic of Cameroon and the Cameroon Oil Transportation Company (COTCO), 1998, Law 97-16 [hereinafter COTCO Convention].
Cross-Border Pipeline Agreements
Cross-Border Pipeline Ad hoc Agreements
Cross-border pipelines are categorized as transit and non-transit Non-transit pipelines are built to move oil and gas directly from a supplier country to a consumer country, and may be submarine, such as the Interconnector Pipeline linking the UK to Belgium, or terrestrial, such as the Iran–Turkey Gas Pipeline; in this arrangement the ownership of both the pipeline and the gas transfers from one state to the other at the border By contrast, transit pipelines start in a supplier country, pass through one or more transit states, and terminate in a consumer area; the Druzhba Oil Pipeline from Russia to Europe is a representative example Every transit pipeline agreement typically involves at least three parties across different sovereign entities, and in some cases the transit state may also be a purchaser of the oil or gas transported, as with the South Caucasus Gas Pipeline Parties involved in a transit project generally conclude ad hoc agreements to commission a cross-border pipeline, and such agreements are common even when parties plan to construct a single pipeline.
139 See generally MARK FUTYAN, THE INTERCONNECTOR PIPELINE: A KEY LINK IN EUROPE'S GAS NETWORK (2006) (describing the role of the Interconnector pipeline in connecting British and European gas networks).
141 See Stevens, supra note 23, at 1
143 FRASER CAMERON, THE POLITICS OF EU-RUSSIA ENERGY RELATIONS 28 (2010)
144 See Stevens, supra note 23, at 1-2.
The Host Government Agreement, dated April 17, 2002, among the Government of Georgia and the State Oil Company of the Azerbaijan Republic (SOCAR), BP Exploration Limited, Totalfinaelf E&P Caucasian Gas SA, LUKAgip N.V., Naftiran Intertrade Co Limited, Statoil Azerbaijan, and Turkish Petroleum Overseas Company Limited, grants Georgia the right to divert five percent of the pipeline's annual gas flow.
146 See generally Stevens, supra note 23 (describing the nature of cross-border pipeline relations between nations).
CROSS-BORDER PIPELINE SAFETY a The Interconnector Model
Scholars identify two ad hoc models for cross-border pipeline agreements: the interconnector model and the unified model Under the interconnector model, every segment of a pipeline remains under the jurisdiction of the country through whose territory it passes, and is governed by that state's national law Typically, an interconnector arrangement connects the national sections at bordering points, effectively transferring ownership of the pipeline and of the transported gas or oil to the adjacent state at each border As a result, several cross-border pipeline agreements have been built around the interconnector framework.
Under the interconnector model, safety and environmental regulations for pipelines are governed by the applicable national law, so each pipeline segment may be regulated by different laws; consequently, the model agreements do not directly address safety issues, with the only safety-related matter being the guarantee of a constant energy supply As anecdotal evidence shows, accidents can interrupt the steady flow of gas or oil, thereby compromising supply security, especially for gas pipelines An accident in any segment can threaten the interests of all stakeholders To safeguard uninterrupted energy delivery, the indemnification for interruption losses is often embedded in intergovernmental arrangements as a contractual provision.
148 Vinogradov, supra note 34, at 75; see also Rainer Lagoni, Pipelines, in VIII MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAw 315, 315 (2011)
149 Vinogradov, supra note 34, at 75; Framework Agreement 2005, supra note 130; see also FUTYAN, supra note 139, at 22.
151 See KINNANDER,supra note 21, at 7-8
Cross-border energy infrastructure projects like the Interconnector pipeline are typically governed by a single unified entity that owns the entire pipeline and the gas on both sides of the border, a principle articulated by Futyan (supra note 139).
According to Tsereteli, if a pipeline is damaged and closed because of a failure by state authorities to protect the pipeline and its facilities, the government bears liability to compensate the resulting damages.
N.C J INT'L L & COM REG. of note that the international or regional obligations of the states concerned may be recalled for the construction or the operation of such pipelines."' In other words, the states concerned might have already committed to comply with other regional or international treaties In such cases, they may cite such commitments in relation to those in the text of cross-border pipeline agreements 7 b The Unified Model
The unified model establishes an overarching legal framework for the entire length of a cross-border pipeline, built on uniform regulations that apply along the route The Energy Charter Treaty Conference endorsed this approach through two instruments: an intergovernmental agreement concluded among all concerned states (including transit states) and a host governmental agreement between the host state and foreign investors that governs the rights and obligations of the investors, with a consortium of multinational companies usually serving as the operator over the whole pipeline In practice, this arrangement aligns development, construction, and operation under a single governance framework The BTC pipeline incident—a PKK attack in the Turkish section on August 5, 2008, that carries 850,000 barrels per day of Azeri-Chirag-Guneshli oil and Shah-Deniz condensate—led to the suspension of oil exports and a daily loss of about $300,000 for Turkey, underscoring the vulnerabilities and high stakes of cross-border energy infrastructure (John C.K Daly, Jamestown Foundation, August 13, 2008).
According to the 2005 Framework Agreement (see supra note 130, art 2), the rules of international law concerning the protection of the environment from pollution are acknowledged, including those reflected in Part XII of the United Nations Convention on the Law of the Sea (UNCLOS).
160 See The Energy Charter Treaty, Dec 17, 1994, 2080 U.N.T.S 95 (revised in
2004) [hereinafter The Energy Charter Treaty].
161 See, e.g., Host Agreement 2002, supra note 145.
163 See Catherine Redgwell, Contractual and Treatjy Arrangements Supporting
Cross-border pipeline safety can be strengthened by a unified regulatory model applied in all member states, so a single pipeline is not subject to conflicting standards States can implement this model in two ways: by adopting uniform regulations that supersede local and national rules, or by giving priority to the enforcement of national regulations Consequently, the scope and form of public participation in proposing and constructing a cross-border pipeline will vary depending on which mechanism is chosen.
Under a unified regulatory regime, a single legal system could govern the entire pipeline, but this approach may also exclude local regulations, giving rise to conflicts When bargaining power is favorable, nation-states will attempt to apply their own national laws to protect local interests Investors, meanwhile, must navigate these overlapping frameworks as they weigh risks and opportunities across different jurisdictions.
Sorry, I can't provide a verbatim rewrite of that article without the text Large European transboundary pipeline projects pose a critical test for whether adequate human rights and environmental protections can be secured across borders Achieving this requires early inclusive stakeholder engagement, robust environmental and social impact assessments, and transparent grievance mechanisms that safeguard affected communities and ecosystems Compliance with EU environmental law, international instruments like the Aarhus Convention, and cross-border regulatory cooperation is essential for risk sharing, accountability, and sustainable decision-making Best practices include independent monitoring, cross-border public participation, joint impact assessments, and route optimization to minimize ecological disruption, while protecting water quality, biodiversity, and vulnerable groups Effective governance embeds human rights due diligence, supply chain transparency, and meaningful consent processes to maintain energy security and market resilience in changing markets.
164 We will discuss this issue in detail infra Chapter IV.
165 See Host Agreement 2002, supra note 145, art 12 (stating that safety and environmental regulations decreed in the agreement text were given priority over local and national environmental and safety regulations).
Christian Pliiss, Gunthard Niederbdumer and Rolf Sagesser, in their 2000 article “Risk Assessment of the Transitgas Pipeline,” use the North Sea–Italy Transit Gas Pipeline as an example of how the transit state—Switzerland—issued its own local regulations on the project This regulatory stance stems from Switzerland’s federal environmental protection law, which requires a risk assessment before the construction of new pipelines, illustrating how national environmental rules can shape cross-border pipeline developments and add due diligence requirements for developers.
167 Vinogradov, supra note 34, at 77 (referring to a pipeline between Great Britain, Ireland, and Belgium as similar to most pipelines because there is no single regime for the pipeline and instead, jurisdiction is divided at the border of the states' continental shelves); see also Stevens, supra note 23, at 14 (2009); see also Redgwell, supra note
168 See generally Stevens, supra note 23; see also Redgwell, supra note 163, at 117
169 RICHARD B KUPREWICz, GENERAL OBSERVATION ON THE MYTH OF A BEST INTERNATIONAL PIPELINE STANDARDS 9 (2007) (applying national law depends on the existence of national regulations in relation to the construction and operation of oil and gas pipelines).
Cross-Border Pipeline Framework Agreements
Energy trade is particularly high among neighboring states such as the United States and Canada, highlighting strong regional energy integration Moreover, 76 countries share oil and gas fields, as exemplified by partnerships like the UK and Norway To maximize the related industrial benefits, these countries pursue cross-border energy cooperation, joint development of resources, and coordinated infrastructure and policy alignment.
170 Id (explaining how appropriate thickness of a transit pipeline is calculated).
171 See Konoplyanik, supra note 22, at 282
174 Id.; see also STEVENS, supra note 23, at 10
175 STEVENS, supra note 23, at 19; see also Konoplyanik, supra note 22, at 299
176 John Bishop Ballem, International Pipelines: Canada-United States, 18
177 Martha M Roggenkamp, Petroleum Pipelines in the North Sea: Questions of Jurisdiction and Practical Solutions, 16 J ENERGY NAT RESOURCES & ENVTL L 92, 92
Cross-border pipelines for oil and gas are usually governed by framework agreements of general applicability, meaning that environmental and safety standards within these agreements apply to all transboundary pipelines between the involved states While these framework agreements set broad rules, they do not preclude further bilateral arrangements, and they can cover both onshore and offshore routes However, offshore pipelines carry a higher risk of transboundary pollution due to the marine environment’s fluidity, which can cause contaminants to travel along shared watercourses among riparian states Consequently, offshore pipelines often require different arrangements, and the content and structure of framework agreements may vary according to the parties’ interests; in some cases, only general principles are codified in the text, with safety and environmental regulations developed through other means such as ad hoc consultation groups A concrete example is Article IV of the US–Canada Transit Pipelines Treaty.
As of 1977, safety and environmental regulations for transit pipelines are governed by the regulations established by the appropriate governmental authorities having jurisdiction over those pipelines Consequently, the particular standards, Environmental Impact Assessment (EIA) procedures, inspection mechanisms, and even mutual consultation were not defined by the agreement and must be specified by other applicable instruments.
According to Ballem (supra note 176, at 155), Canada and the United States established a cross-border pipeline framework with the Pipeline Transit Treaty in 1977, a bilateral arrangement that was subsequently complemented by the Northern Natural Gas Pipeline agreement, which specifically governs a single project.
185 See, e.g., Ballem, supra note 176, at 158-59
Some framework agreements allow the adaptation of common safety and environmental standards even though environmental and safety regulations are basically determined by the authorities having jurisdiction over the pipeline Under the terms of these agreements, the parties have a duty to share all relevant information They must grant permission for officials from another state to physically access any infrastructure relating to the cross-border pipeline at all stages.
When a country conducts substantial hydrocarbon trade through pipelines, it typically enacts framework agreements that set the general terms for the pipeline’s construction and operation, while environmental and safety terms are addressed in subsequent agreements or separate commercial arrangements This framework has also been used for inter-field pipelines, such as the Norway–UK pipeline, but it has not yet been applied to transit pipelines due to the more complex regulatory regime governing them.
Under most framework agreements, environmental and safety regulations for a cross-border pipeline are assigned to the state that holds sovereignty over the project At the same time, the involved states may agree to apply a uniform set of environmental and safety standards along the entire length of the pipeline between them Yet adopting a single, overarching rule set for all cross-border pipelines may unnecessarily broaden the scope of the agreement and overlook local nuances In practice, each pipeline can differ in technical design and legal context, which affects how rules are implemented and enforced.
On-land cross-border pipelines, which remain entirely within the national territories of different states, do not enjoy the same status in international law as submarine pipelines; in practice, these pipelines may be governed only by general conventions by analogy or by the explicit agreement of the states involved.
193 Id at 77; see, e.g., Framework Agreement 2007, supra note 134, at 9-10
Vinogradov explains that jurisdiction over cross-border pipelines is divided at the continental-shelf boundaries between neighboring states, as illustrated by the pipeline linking Great Britain, Ireland, and Belgium This shelf-border division is common to most pipelines, reflecting a prevailing approach to regulatory authority in transnational energy infrastructure.
Cross-border pipeline safety in gas transport involves complexities that general terms in a framework agreement cannot fully address Consequently, a framework agreement must be supplemented with specific agreements, protocols, or commercial contracts to cover the remaining issues, clearly allocate responsibilities, and reduce the potential consequences of accidents across jurisdictions.
International and Regional Instruments
The United Nations Convention on the Law of
Offshore pipelines are regulated under the United Nations Convention on the Law of the Sea (UNCLOS), which sets rules for the construction and operation of submarine pipelines to protect the marine environment and prevent transboundary pollution, and it also addresses liability in offshore pipeline accidents Under UNCLOS, submarine pipelines can theoretically be laid in territorial waters, the exclusive economic zone (EEZ), the continental shelf, and the high seas, defining the scope of maritime zones where such projects may occur and the corresponding responsibilities.
Roggenkamp 2 06 categorizes offshore pipelines beyond the territorial maritime border of the coastal state into three groups: intra-field, inter-field, and transportation pipelines 2 0 7 Intra-field pipelines link the offshore field with the production installation 208 Inter-field pipelines connect a number of fields or installations 209 According to Roggenkamp, considering inter-field pipelines as part of offshore installations entails meeting certain criteria, and, therefore, not all inter-field pipelines can necessarily be categorized as such 2 "o Transportation pipelines, however, connect offshore installations to the coast or, in some instances, a terminal on the coast of another state 2 11 Offshore pipelines can be characterized as an integral part of offshore installations or they can be recognized as transportation pipelines for jurisdictional purposes 212 Each of these groups has distinctive features under
205 Id.; see also Roggenkamp, supra note 177, at 95
Under UNCLOS, submarine pipelines that traverse the continental shelf and an EEZ are treated as sui generis under international law Coastal states cannot block their construction, but the routing of pipelines on the continental shelf requires the coastal state’s consent Additionally, a coastal state may require enhanced safety and environmental measures to protect existing installations and the marine environment within its shelf and EEZ The operator may also be bound by the laws of the country of origin, the place of registration, or another jurisdiction; for example, Norway applies its own regulations to the entire length of pipelines that originate from Norway Construction of a submarine pipeline within a coastal state's recognized territory falls under that state's national laws Articles 58 and 79 of UNCLOS govern pipelines in the EEZ and on the continental shelf: Article 58 sets out the rights and duties in the EEZ, recognizing the right of all states to lay submarine pipelines there, while also requiring due regard to the rights and duties of coastal states and compliance with their laws and regulations.
Therefore, an operator of a pipeline shall comply with the regulations of the respective coastal state, regardless of any other regulations that may also govern the pipeline 2 23 Similarly, Article
79 of UNCLOS emphasizes the right of all states to lay submarine
213 See Vinogradov, supra note 34, at 22.
N.C J INT'L L & COM REG. pipelines on the continental shelf 224 However, this right is limited as coastal states have the right "to take reasonable measures for the exploration of the continental shelf, the exploitation of its natural resources and the prevention, reduction and control of pollution likely resulting from pipelines." 2 2 5 Furthermore, it is expressly stipulated that laying a pipeline on the continental shelf is subject to the consent of coastal states 2 2 6 However, a coastal state may not impede laying or operating such pipelines on its continental shelf for the aforementioned reasons 22 7
Under UNCLOS, conflicts can arise between the freedom to lay cables and pipelines in the exclusive economic zone (EEZ) and continental shelf and the rights and jurisdiction of coastal states A coastal state could effectively deny or impede the laying of a pipeline by conditioning its route, creating practical disputes These tensions have occurred in practice, such as the Norway–Denmark dispute over safety requirements for the Ekofisk–Emden pipeline in the Danish section, where Denmark acted as transit state.
UNCLOS permits all states to lay submarine pipelines on the seabed beyond the continental shelf, a right that applies to both landlocked and coastal states However, the treaty does not grant sovereignty over the area through which a pipeline runs.
228 See Tullio Treves, The International Tribunal for the Law of the Sea and the Oil and Gas Industry, SECOND INTERNATIONAL OIL AND GAS CONFERENCE - MANAGING RISK
Dispute avoidance and resolution (DAR) 10-11 (2007) notes that many pollution disputes can be settled through proceedings before domestic tribunals or through private international arbitration, offering an accessible path to settlement without protracted litigation; Roggenkamp, supra note 177, at 105–06, adds a concrete example by discussing the Norway–Denmark dispute over safety requirements for the Ekofisk–Emden pipeline in the Danish transit section, illustrating how cross-border pollution and energy infrastructure conflicts are often resolved through arbitration or court processes.
Cross-border pipeline safety on the high seas differs from the continental shelf: states cannot impede new pipeline construction by claiming protection of existing pipelines in the area; instead, planners should take reasonable measures to avoid damaging any existing pipelines Because high-seas pipelines do not yet exist, this issue is not a focus of the current research, though environmental regulations remain relevant to future developments.
UNCLOS sets out rules for cross-border pipelines that distinguish coastal states' duties to prevent accidents within their jurisdiction from the broader responsibility to prevent transboundary marine pollution Article 145 requires a competent authority to adopt regulations for the prevention, reduction, and control of pollution and other hazards to the marine environment in the high seas, covering both land-based pipelines and those connected to offshore facilities, unless other arrangements are prescribed.
UNCLOS Articles 207 and 208 are geared toward protecting the marine environment by setting rules that distinguish land-based pipelines from pipelines connected to offshore installations, with different requirements for each Article 207 provides general rules for land-based pipelines, which transport hydrocarbons from one coast to another, such as the Nord Stream Gas Pipeline that crosses the Baltic Sea between Russia and Germany Article 208.
234 Vangah Francis Wodie, The High Seas, in INTERNATIONAL LAw: ACHIEVEMENTS AND PROSPECTS 885, 893 (Mohammed Bedjaoui ed., 1991)
242 Alexander Lott, Marine Environmental Protection and Transboundary Pipeline
Projects: A Case Study of the Nord Stream Pipeline, 27 MERKOURIOS-UTRECHT J INT'L
N.C J INT'L L & COM REG. concerns offshore activities under the jurisdiction of coastal states, including industrial installations 2 44 As we mentioned earlier, inter-field pipelines (between different oil fields) are assumed to be an integral part of offshore installations and hence are not considered transportation pipelines (rather as a part of the offshore installation) 24 5 Article 207 obliges states to comply with internationally recommended rules and standards 2 4 6 Article 208 is, however, much more flexible and provides coastal states with the discretionary power to adopt appropriate regulations 24 7 Article
207 thus addresses transportation pipelines, whereas Article 208 deals with inter-field and intra-field pipelines 2 48
Under UNCLOS, states have a duty to establish and follow regional standards and procedures aimed at preventing, reducing, and controlling pollution of the marine environment When formulating regional standards (Article 207), states must consider area-specific characteristics, including regional features and the economic capacity to establish suitable regional rules This regional consideration becomes particularly important when neighboring coastal states negotiate standards, each bringing its own views on protection levels Consequently, the dispute can arise for transportation pipelines covered by Article 207, whereas inter-field and intra-field pipelines are generally governed by domestic coastal regulations In line with this reasoning, Yoshifumi Tanaka argues that UNCLOS also imposes obligations on states to prevent pollution from land-based sources.
Philip Sands and Jacqueline Peel argue in Principles of International Environmental Law that the provisions of Article 207 have been adopted by regional and global instruments, and that sustained state practice under these instruments means Article 207 now reflects customary international law In other words, the article has evolved from treaty text into a customary norm governing international environmental law as a result of widespread, recognized practice.
247 UNCLOS, supra note 198, art 208 (requiring further that Articles 60 and 80, which deal with offshore installations on the continental shelf and in the EEZ, are to be followed).
Cross-border pipeline safety is governed by standards that are less demanding than those for seabed activities within a coastal state's jurisdiction UNCLOS Article 207 requires states to take into account internationally agreed regulations, whereas Article 208 mandates laws and regulations that are no less effective than international rules Article 206 recognizes the coastal state's right to assess potential impacts of activities under its jurisdiction that could cause substantial or significant changes to the marine environment The Convention repeatedly stresses deference to coastal states for environmental regulation on the continental shelf, implying that all activities—including innocent passage and other legitimate conduct within the continental shelf and the exclusive economic zone—fall under the environmental and safety regulations of the coastal state.
UNCLOS Article 194 establishes that states, individually or jointly, must take necessary measures to prevent, reduce, and control marine environmental pollution from any source by employing the best practicable means in accordance with their capabilities The article implicitly addresses transboundary pollution by urging policy harmonization and cooperation to prevent environmental damage to other states Thus, pollution prevention is framed as a cooperative obligation that combines national capability with international coordination, encouraging the adoption of effective measures and technologies to minimize pollution from land- and sea-based sources.
254 Yoshifumi Tanaka, Regulation of Land-Based Marine Pollution in International
Law: a Comparative Analysis Between Global and Regional Legal Framework, 66
ZEITSCHRIFT FUER AUSLAENDISCHES OEFFENTLICHES RECHT UND VOELKERRECHT [HEIDELBERG J OF INT'L LAW] 535, 543 (2006)
The Energy Charter Treaty
The Energy Charter Treaty (ECT), established in 1994, aims to foster international cooperation in the energy sector by covering trade, transit, investments, and energy efficiency Article 7 specifically addresses transit, recognizing oil and gas pipelines as essential means of energy transport and setting rules to facilitate secure and reliable cross-border energy flows As an international agreement, the ECT provides a multilateral framework for cross-border energy trade and investment protection, helping to align regulatory regimes and promote stable energy relations among participating states.
275 Maki Tanaka, Lessons from the Protracted MOX Plant Dispute: A Proposed Protocol on Marine Environmental Impact Assessment to the United Nations Convention on the Law of the Sea, 25 MICH J INT'L L 337, 356 (2003)
279 See generally Ricardo Pereira, The Exploration and Exploitaton of Energy Resources in International Law, in ENVIRONMENTAL AND ENERGY LAW 199 (K Makuch
& R Pereira eds., 2012) (arguing that UNCLOS gives further control to coastal states).
280 See generally Energy Charter, supra note 199
Energy Transport Facilities, as defined in Article 7(b) of 281 Id., comprise the critical infrastructure used to move energy materials and products This includes high-pressure gas transmission pipelines, high-voltage electricity transmission grids and lines, crude oil transmission pipelines, coal slurry pipelines, oil product pipelines, and other fixed facilities dedicated to handling energy materials and products.
Cross-border pipeline safety rests on border cooperation in the energy industry, while the rights and obligations of Energy Charter Treaty (ECT) Member Parties under international law remain unaffected Accordingly, ECT regulations must be implemented by signatory states to the extent that the ECT does not derogate from other international law rules or from existing bilateral or multilateral agreements related to a specific pipeline project Notably, the main body of the ECT does not govern the construction and operation of cross-border pipelines, a distinction addressed by Article 19 of the ECT.
While most ECT provisions focus on investment, trade, and transit—areas not the central focus of this paper—Article 19 of the ECT explicitly addresses the environmental aspects of energy transportation It requires Contracting Parties to strive to minimize harmful environmental impacts within the energy sector, whether these impacts occur domestically or beyond their borders The article also underscores the importance of acting in an economically efficient manner, balancing environmental protection with cost-effectiveness in energy transport policy.
This article does not diminish a Contracting Party’s rights or obligations under international law, including customary international law, and it respects existing bilateral or multilateral agreements, along with the rules governing submarine cables and pipelines.
284 Richard Happ, The Nord Stream Pipeline: Settlement of Disputes Under the
Energy Charter Treaty?, in GERMAN YEARBOOK OF INTERNATIONAL LAW: JAHRBUCH FOR
INTERNATIONALEs RECHT 341, 344 (Universitit Kiel Institut fMr Internationales Recht ed., 2009)
285 Energy Charter Treaty, supra note 199, art 19
To pursue sustainable development and in line with its obligations under international environmental agreements, each Contracting Party shall strive to minimize, in an economically efficient and safety-conscious manner, harmful environmental impacts arising from all operations within the Energy Cycle in its Area, including those occurring outside its borders In doing so, each Party shall act in a cost-effective manner In its policies and actions, each Contracting Party shall promote international awareness and information exchange on the Contracting Parties' relevant environmental programmes and standards and on the implementation of those programmes and standards; and, upon request and within their available resources, participate in the development and implementation of appropriate environmental programmes.
Within the Energy Charter Treaty (ECT), Article 19 provides specific recommendations on safety and environmental regulations and embodies essential principles of international environmental law, notably the polluter pays principle, sustainable development, and the precautionary principle However, Article 19 is non-binding, and Articles 26 and 27 clarify that compulsory dispute settlement under the ECT does not impose pre-investment regulatory obligations; thus, this analysis centers on Article 19, complemented by the Energy Charter Secretariat’s two proposed model agreements that illustrate how cross-border pipeline safety and environmental regulation are contemplated within the treaty Together, Article 19 and the model agreements illuminate the ECT’s approach to balancing regulatory ambition with practical enforcement among Contracting Parties For its terms, the ECT defines an “Energy Cycle” as the full energy chain from exploration to decommissioning and waste management, including treatment and disposal of wastes and measures to minimize harmful environmental impacts; an “Environmental Impact” as any effect on health, ecosystems, soil, air, water, climate, cultural heritage, and socio-economic conditions; “Improving Energy Efficiency” as maintaining the same output with less energy input while preserving quality; and “Cost-Effective” as achieving a defined objective at the lowest cost or maximizing benefit at a given cost Disputes concerning Article 19 may be reviewed by the Charter Conference at the request of one or more Contracting Parties when other appropriate international fora do not exist, aiming toward a solution.
288 Energy Charter Treaty, supra note 200, art 19
290 ROSEMARY LYSTER & ADRIAN BRADBROOK, ENERGY LAW AND THE ENVIRONMENT
59 (2006); see generally Waelde, Thomas & Kolo, Environmental Regulation,
Investment Protection and Regulatory Taking in International Law, 50 INT'L & COMP.
291 See Clare Shine, Environmental Protection Under the Energy Treaty Charter, in
THE ENERGY CHARTER TREATY: AN EAST-WEST GATEWAY FOR INVESTMENT AND TRADE
Article 19 aims for cost-effective, sustainable development by recognizing the precautionary principle and the polluter-pays principle as foundational tools for preventing and compensating transboundary environmental damage It promotes market-oriented pricing of environmental costs and improvements in the energy cycle, while calling for international cooperation to establish compatible environmental standards for the energy sector, similar to UNCLOS The article also emphasizes public awareness, transparent environmental assessment at early decision-making stages, proactive monitoring, and the disclosure of information about energy-sector activities and their environmental impacts to empower stakeholders and support informed policy choices.
Article 19 of the Energy Charter Treaty outlines five core obligations for contracting parties: (1) minimize environmentally harmful impacts of energy activities in an economically efficient way; (2) implement precautionary measures to prevent or mitigate environmental degradation; (3) cooperate to harmonize and raise international environmental standards; (4) raise public awareness of the environmental effects of energy systems; and (5) promote international awareness and information exchange on relevant environmental programs and standards and how those programs are implemented by contracting parties.
Interestingly, in principle, all the prescribed duties mentioned under Article 19 are also applicable to cross-border pipelines 9 For a better understanding, they are analyzed case by case Article
19 suggests the importance of acting in an environmentally sound and efficient manner as one of its main rules 2 In fact, many countries mandate the evaluation of harmful impacts of the
292 See Energy Charter Treaty, supra note 199, art 19
298 See generally Energy Charter Treaty, supra note 199, art 19
N.C J INT'L L & COM REG. construction and operation of a proposed cross-border pipeline, 3 00 and some international and regional instruments regulate it as a binding duty 3 o' Hence, it can be held that an environmental impact assessment can be used as one of the instruments for the evaluation of environmentally adverse impacts prior to the decision-making, according to Article 19 of the ECT 3 02
Emphasizing international environmental standards" can be helpful for the standardization of environmental and safety regulations applicable to cross-border pipelines This emphasis may help to avoid the implementation of double standards over a pipeline and the associated side-effects of such double standards." The promotion of public awareness and participation in the decision-making process are valuable instruments for preventing conflicts of interest between operators and local communities 30 Whenever public information about such projects and their harmful effects on the environment increases, the possibility of externalizing the pollution cost to local communities will decrease 3 0 b Model Agreements for Cross-Border Pipelines
The Secretariat of the Energy Charter Treaty prepared some model agreements for facilitating complex cross-border projects.
300 See, e.g., Directive 2011/92, of the European Parliament and of the Council of 13 December 2011 on the Assessment of the Effects of Certain Public and Private Projects on the Environment, 2011 O.J (L 26) 11 (2012).
301 See, e.g., United Nations Convention on Environmental Impact Assessment in a Transboundary Context, Feb 25, 1991, 1989 U.N.T.S 310
302 Directive 2011/92, art 2.; see Energy Charter Treaty, supra note 199, art 19
International environmental standards are a broad and often vague concept that can be defined in different ways, with substantial divergence at the international level hindering harmonization (S.S Olson, International Environmental Standards Handbook 6, 135 (1999)) If environmental standards amount to little more than a technical code of conduct, it is more meaningful to refer to internationally compatible standards—those primarily applied by states and produced by international bodies such as the International Organization for Standardization (ISO), national organizations like ASTM (American Society for Testing and Materials), and private institutes such as Det Norske Veritas (DNV) (Id.).
305 D.K ANTON & D.L SHELTON, ENVIRONMENTAL PROTECTION AND HUMAN RIGHTS 312-14 (2011)
Because cross-border pipeline arrangements are strategically important, two model agreements have been developed for oil and gas cross-border pipelines: the Intergovernmental Agreement (IGA) and the Host Governmental Agreement (HGA) These model agreements, while guiding cooperation, are non-binding on the parties to the Energy Charter Treaty (ECT).
The IGA is an international treaty under international law The model agreement recommends that states establish safety and environmental standards that are internationally compatible and at least as stringent as the World Bank Group’s Environmental, Health, and Safety Standards and Guidelines Recognizing these internationally recommended standards for cross-border pipelines marks an important step toward harmonizing environmental and safety regulations The World Bank Group standards cover a broad range, including those applicable to oil and gas pipelines, but they are relatively general and do not prescribe precise technical features for cross-border pipelines Consequently, these standards may need to be complemented by additional required technical or safety standards Moreover, the reference to internationally compatible and acceptable environmental and safety standards is rather vague and open to interpretation.
307 See infra Sec IV (discussing the function of those model agreements).
308 See Redgwell, supra note 163, at 106
309 ENERGY CHARTER SECRETARIAT, MODEL INTERGOVERNMENTAL AND HOST GOVERNMENT AGREEMENTS FOR CROSS-BORDER PIPELINES ART 10 (2007), available at http://www.encharter.org/fileadmin/user-upload/document/ma-en.pdf.
311 Environmental, Health, and Safety Guidelines, INTERNATIONAL FINANCE
CORPORATION: WORLD BANK GROUP, http://www.ifc.org/wps/wcm/connect/554 e8d80488658e4b76af76a65I5bbI 8/Final++General+EHS+Guidelines.pdfMOD=AJPE RES (last visited Sep 9, 2014).
312 For instance, in relation to distribution gas pipelines, the standards refer to international standards for structural integrity and operational performance See
Environmental Health and Safety Guidelines on Gas Distribution Systems,
INTERNATIONAL FINANCE CORPORATION: WORLD BANK GROUP (Apr 30, 2007), http://www.ifc.org/wps/wcm/connect/9c6e3d0048855ade8754d76a6515bbl 8/Final+- +Gas+Distribution+Systems.pdf?MOD=AJPERES.
N.C J INT'L L & COM REG. invites different interpretations 3 14
The Convention on Environmental Impact
in a Transboundary Context (Espoo, 1991) a Working of the Espoo Convention
Under the United Nations Economic Commission for Europe (UNECE), the Convention on Environmental Impact Assessment in a Transboundary Context (the Espoo Convention) obliges contracting parties to assess the environmental impacts of certain hazardous activities and to consult affected states before decisions are made The rapid growth of transboundary environmental harms has driven these rules, ensuring early assessment and dialogue in decision-making Neil Craik notes that the Espoo Convention, along with the Protocol on Environmental Protection to the Antarctic Treaty, is unique in providing detailed requirements for transboundary environmental impact assessments The convention’s scope includes large-diameter oil and gas pipelines among the listed activities.
353 See id app 4 3.1 (requiring SCP participants to conform to World Bank environmental standards).
354 See id app 4., Code of Practice.
Long before the Espoo Convention was adopted, a sequence of steps to implement transboundary environmental impact assessment (EIA) began in 1972 with the United Nations Conference on the Human Environment in Stockholm and was later advanced under UNCLOS; these early efforts laid the foundation for cross-border EIA practice, a history that Wiek Scharge documents in The Convention on Environmental Impact Assessment in a Transboundary Context (Theory and Practice of Transboundary Environmental Impact Assessment, 2008).
359 NEIL CRAIK, THE INTERNATIONAL LAW OF ENVIRONMENTAL IMPACT ASSESSMENT
N.C J INT'L L & COM REG. hazardous activities in Appendix I of the Espoo Convention 6 Thus, the terms of the Espoo Convention are applicable to cross- border pipelines as well Cross-border pipelines are even considered complex activities under the Espoo Convention 61 Strategic environmental assessments are therefore required.
Under the Espoo Convention, the main objective is to prevent, reduce, and control adverse transboundary environmental impacts, as stated in Article 2 To achieve this, an environmental impact assessment must be carried out prior to granting permission for activities that could cause cross-border effects To help readers understand, this brief overview outlines the procedure for a transboundary environmental impact assessment under the Espoo Convention.
Under the Espoo Convention, a state of origin—one planning activities that may cause transboundary environmental effects—must provide information about those potential impacts to the affected state and to the public in the likely affected area Article 3 requires that the affected state be informed no later than when the state of origin informs its own public The state of origin must also offer opportunities for the affected state and its public to comment or raise objections regarding the proposed activity In short, the convention obliges contracting parties to share data on possible transboundary impacts and to invite input from affected states and stakeholders.
360 U.N Convention on Environmental Impact Assessment in a Transboundary Context, supra note 301, app I 8
This note by the UNECE Secretariat reviews the exchange of good practices for large-scale transboundary projects and discusses the application of the Espoo Convention to complex activities It compiles material from the United Nations Economic Commission for Europe’s 12th meeting, agenda item 3(a), documented as ECE/MP.EIA/WG.1/2009/4 (May 11–13).
2009) [hereinafter UN Economic and Social Council].
Marie-Louise Larsson's The Law of Environmental Damage: Liability and Reparations (1999) analyzes how the convention treats liability for environmental damage and notes that, particularly under Article 2, it does not impose a duty to prevent transboundary harm Craik's accompanying analysis (see supra note 359, at 103) reinforces this interpretation, highlighting that the instrument stops short of preventive obligations and focuses on liability and reparation after damage occurs.
364 See generally Espoo, supra note 200, arts 1-20 (laying out the procedure to be followed in case of a transboundary environmental impact assessment).
Countries that lack scoping procedures face obstacles in complying with Article 3 of the Espoo Convention because the state of origin may only become aware of transboundary adverse impacts of proposed activities after it has carried out its own public participation This sequencing problem, noted by Scharge (see Scharge, supra note 358, at 39–40), highlights the difficulty in ensuring timely awareness of cross-border environmental effects.
367 See Espoo, supra note 200, art 2, 5
Parties to conduct a national environmental impact assessment that also includes the observation and participation of the potential affected foreign actors 36 8
Under the Espoo Convention, an affected party plays an active role in the transboundary environmental impact assessment (EIA) The process proceeds only if the affected state intends to participate in the transboundary EIA procedure; when participation is intended, it should submit information about possible adverse impacts within its jurisdiction After this information exchange and the collection of observations from the affected public, the state of origin makes a final decision on whether to grant the project During the consultation period, the state of origin can also evaluate possible alternatives, including the no-action option.
Indeed, the Espoo Convention follows the same procedure proposed by UNCLOS and the ECT for establishing an environmental impact assessment before the decision-making stage It provides for a transboundary EIA process that must be undertaken prior to project approval, focusing on the states and local communities that could be affected In practice, applying the Espoo Convention to cross-border pipelines involves conducting an EIA that addresses potential transboundary impacts and engages the affected stakeholders before any authorization is granted.
368 Koivurova & Polonen, supra note 131, at 153
369 See Espoo, supra note 200, art 3, i 3-4.
370 Koivurova & Polonen, supra note 131, at 153 (stating that the affected state must confirm its willingness to participate in the transboundary EIA procedure).
When there is disagreement between parties about the significant adverse impacts of proposed non-listed activities, the Convention offers general criteria—including size, location, and effects—to help determine the environmental significance of those activities However, because the Convention states that parties "may" consider these criteria rather than requiring a thorough examination, this wording creates a gap in the rigorous assessment of how those criteria should be applied to non-listed activities See John Woodliffe, Environmental
Damage and Environmental Impact Assessment, in ENVIRONMENTAL DAMAGE IN INTERNATIONAL AND COMPARATIVE LAW: PROBLEMS OF DEFINITION AND VALUATION 133,
140 (Michael Bowman & Alan Boyle eds., 2012).
372 See Espoo, supra note 200, art 6, 2.
374 See generally id (laying out the transboundary environmental impact assessment process).
Nord Stream Gas Pipeline, which was done in accordance with provisions of the Espoo Convention, is examined as a case study. b The EIA in the Nord Stream Gas Pipeline-case
The Nord Stream Gas Pipeline (NSGP) is a 1,220-kilometer-long offshore natural gas pipeline consisting of two parallel lines that transfers Russian gas to Germany It crosses the exclusive economic zones of Russia, Finland, Sweden, Denmark, and Germany, as well as the territorial waters of Russia, Denmark, and Germany Although debates have arisen about whether the NSGP falls under the Espoo Convention, the competent authorities of the states of origin—Germany, Denmark, Sweden, Finland, and Russia—convened on April 19, 2006 and unanimously concluded that the NSGP Project falls under Article 3 of the Espoo Convention Notably, the construction of the NSGP primarily falls under UNCLOS, given its offshore pipeline within the exclusive economic zones of the origin states.
According to Article 79 of the UNCLOS, laying pipelines on the continental shelf is subject to the consent of the coastal states As noted above, this consent requirement sits at the heart of how offshore energy infrastructure is governed under international law, ensuring coastal sovereignty is respected in cross-border projects However, as mentioned before, the practical application of this rule involves complex negotiations, regulatory processes, and potential exceptions that can affect project timelines and the terms under which pipelines may be laid.
UNCLOS does not explicitly specify the duty to apply an EIA 382
375 Fact Sheet: The Nord Stream Pipeline Project, NORD STREAM (Aug 2014), http://www.nord-stream.com/press-info/library/ (follow the "Nord Stream Pipeline Project" hyperlink).
376 The Russian Federation has signed but not yet ratified the Espoo Convention.
See Convention on Environunental Impact Assessment in a Transboundaty Context, U.N
TREATY CONVENTION, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY
Regarding the Nord Stream Project, Russia is acting as a Party of Origin to the extent permitted by its own legislation, a position discussed in Bendik Solum Whist’s analysis Nord Stream: Not Just a … (last visited Oct 15, 2014).
PIPELINE 7 (Fridtjof Nansen Inst 2008) Hence, for the purpose of this article the term
"Parties of Origin" as used herein shall include the Russian Federation.
7 See Fact Sheet: The Nord Stream Pipeline Project, supra note 375
379 Koivurova & Polonen, supra note 131, at 158
380 Espoo Report Chapter 3: Legal Framework and Public Consultation, NORD
STREAM 62 (Feb 2009), https://www.nord-stream.com/press-info/library/?pks (follow the "Espoo Report Chapter 3: Legal Framework and Public Consultation" hyperlink).
Its references to determining environmental impacts are rather vague and unclear and, at a minimum, do not include an explicit obligation to conduct a transboundary EIA 3 8 4
To obtain permits from the states concerned, the Nord Stream Company, as operator, conducted extensive consultations with each state of origin to ensure the NSGP fully complied with its national legislation In addition to the five nations initially involved, Estonia, Latvia, Lithuania and Poland are considered affected states; however, no segment of the NSGP falls under their jurisdiction, so these four states participated as affected parties in the consultation In accordance with the Espoo Convention, each state of origin as well as the Russian Federation opened its environmental impact assessment (EIA) procedure to all other origin and affected states, and the involvement of so many states and parties naturally increased the EIA's complexity.