1. Introduction
Invoking state responsibility is usually a retrospective measure, aiming to remedy a past breach of the law by repairing the damage. However, the example of the Montara oil spill serves as a conceptual testing ground for how the regime of state responsibility can be directed towards future actions. This includes institutionalizing oversight as a means of redressing a wrong while seeking to prevent the reoccurrence of events that caused transboundary harm to the environment.
In 2009, a blowout at the Montara oil field in the Timor Sea resulted in the uncontrolled release of oil and gas for ten weeks. This incident proved to be ‘the worst of its kind in Australia’s offshore petroleum industry history’, causing significant harm to Indonesia’s marine environment.Footnote 1 Despite the Federal Court of Australia ordering over one billion United States dollars (US$) in compensation for Indonesian seaweed farmers in 2023,Footnote 2 the issue of fully addressing the overall harm visited upon Indonesia by the regulatory state, Australia, remains unresolved.
This article argues that the Montara oil spill can serve as a turning point for understanding remedies for breaches of international law specific to international environmental law. It moves beyond the general international law restorative approach of state responsibility, based on ex post facto reparations applied to environmental damage, to incorporating prospective measures geared towards prevention by addressing the potential reoccurrence of such harm. Therefore, this study illustrates how the regime of state responsibility can uniquely reinforce environmental law, offering a new tool that international environmental lawyers have yet to recognize or utilize.
Using the example of the Montara oil spill, this article outlines how various elements of the regime of state responsibility – including attribution, breaches of international law, the injured state, legal consequences of a wrongful act, and reparation – set the legal parameters for addressing a legal wrong in accordance with international law. However, these considerations simply set the stage for the distinct role that state responsibility can play in cases of violations related to international environmental law, by focusing on the preventative function of the largely overlooked appropriate ‘guarantees of non-repetition’.
In cases where a state has already suffered transboundary environmental harm, we argue that seeking appropriate guarantees of non-repetition as part of a settlement gives the injured state negotiating leverage against the responsible state. As a result of the preventative foundation of international environmental law, the injured state is well positioned to invoke the International Law Commission’s (ILC) 2001 Draft Articles on Prevention of Transboundary Harm from Hazardous Activities (Articles on Prevention of Transboundary Harm),Footnote 3 providing a foundational framework for creating a future-oriented approach within the context of state responsibility.
In instances such as the Montara oil spill, where there appears to be a failure of due diligence resulting in significant transboundary environmental harm, it is argued that the appropriate guarantees of non-repetition further shift the balance of negotiation in favour of the injured state. In such instances, we argue, this allows the injured state, should it choose, to seek the establishment of a bilateral intergovernmental organization to act as a permanent oversight mechanism for implementing a prevention framework.
2. The Montara Oil Spill
The Montara oil field, situated in Australia’s conventional continental shelf, specifically in the Bonaparte Basin, features substantial oil and gas reserves.Footnote 4 The oil field is located about 100 kilometres (km) (60 miles) southeast of Cartier Island, within Australian jurisdictional waters in the Timor Sea. It is also approximately equidistant, at 250 km (150 miles), from the northwest of Continental Australia to the southern parts of the islands of Rote and Timor in Indonesia.Footnote 5
On 21 August 2009, an uncontrolled release – a blowout – of crude oil occurred from one of the wells on the Montara Wellhead Platform into the waters directly above Australia’s continental shelf – that is, into the waters governed by the legal framework of the 1982 United Nations Convention on the Law of the Sea (UNCLOS),Footnote 6 referred to as the exclusive economic zone (EEZ).Footnote 7 The discharge of hydrocarbons continued for 75 days, until 3 November 2009, resulting in the spilling of more than half a million barrels of oil, as acknowledged by the parent company of the operator of the Montara Wellhead Platform: PTT Exploration and Production Public Company Australasia (Ashmore Cartier) Proprietary Ltd (PTTEPAA).Footnote 8 The Australian government’s Montara Commission of Inquiry, established in November 2009, noted that the spill ‘could have affected at various times an area as large as 90,000 square kilometres’ (or 35,000 square miles); an area larger than the land area of nearly half of all countries of the world, and roughly the size of Hungary or Jordan.Footnote 9 The oil spill also affected Indonesia, with the Commission of Inquiry determining that ‘hydrocarbons did enter Indonesian … waters to a significant degree’.Footnote 10
Six months later, in June 2010, David Borthwick, the Commissioner of the Inquiry, noted:
Although the likelihood of a major blowout occurring is relatively low, the consequences can be very grave. However, the likelihood is relatively low only because well integrity is (or should be) scrupulously observed by the industry and those who regulate it.Footnote 11
The Inquiry concluded that the parent company ‘did not observe sensible oilfield practices at the Montara Oilfield. Major shortcomings in the company’s procedures were widespread and systemic, directly leading to the Blowout’.Footnote 12 In considering the cause of the uncontrolled release, the Commission noted that the problems leading to the oil spill ‘should have raised alarm bells’.Footnote 13 Yet, it noted, they ‘were not complicated or unsolvable, and the potential remedies were well known and not costly’.Footnote 14 As a result, the Commission concluded that ‘this was a failure of “sensible oilfield practice 101”’.Footnote 15 Cutting to the core, the Commission of Inquiry found:
In essence, the way that PTTEPAA operated the Montara Oilfield did not come within a ‘bull’s roar’ of sensible oilfield practice. The Blowout was not a reflection of one unfortunate incident, or of bad luck. What happened with the H1 Well was an accident waiting to happen; the company’s systems and processes were so deficient and its key personnel so lacking in basic competence, that the Blowout can properly be said to have been an event waiting to occur.Footnote 16
Following the Montara oil spill, Indonesian officials sought to engage in discussions with their Australian counterparts and the operators of the Montara Oil Platform (Atlas Drilling) to hold the Thailand-based parent company accountable for the damage caused by the spill.Footnote 17 The public record does not indicate whether those talks took place and, if they did, what the outcome was. As efforts to address the uncontrolled release were under way in November 2009, the Australian Embassy in Jakarta issued a media release, noting that the Australian Maritime Safety Authority ‘assesses that the type and amount of oil that has been observed in Indonesia’s EEZ poses no significant threat to the marine environment’.Footnote 18
In retrospect, this statement was premature, as it was later revealed that significant damage had been inflicted on Indonesia’s marine environment. In 2016, reports indicated that oil pollution had a severe impact on the livelihoods of fishers and seaweed farmers in West Timor and East Nusa Tenggara, ultimately causing an estimated economic loss of nearly US$1 billion annually from 2009 to 2012.Footnote 19 The damage to Indonesia’s marine environment was highlighted in court proceedings that began in August 2016, when over 13,000 Indonesian seaweed farmers filed a class action lawsuit in the Federal Court of Australia against PTTEPAA.Footnote 20 In a landmark decision, Judge David Yates ordered PTTEPAA to pay compensation equivalent to US$17,533 to the lead applicant, Mr Sanda, to address the damage and crop losses incurred from 2009 to 2014 caused by the oil spill.Footnote 21 In February 2023, considering the methodology used to assess damages in Mr Sanda’s case, the Federal Court of Australia approved a settlement of approximately US$1.2 billion for the class action case.Footnote 22
These court proceedings provided clarity regarding the extent of the oil spill.Footnote 23 At the same time, the Australian government’s Montara Commission of Inquiry starkly outlines the ‘major shortcomings of the company’s procedures’, which were ‘widespread and systematic’.Footnote 24 The Commission also assessed Australia’s role in overseeing the activities of the Montara oil field, concluding that the ‘regulatory dog did not bark’.Footnote 25
3. Attribution and the Injured State
As mentioned in the previous section, the Montara oil field is located on Australia’s continental shelf, where Articles 77(1) and 81 UNCLOS grant Australia ‘sovereign rights for exploring it and exploiting its natural resources’ and ‘the exclusive right to authorize and regulate drilling on the continental shelf for all purposes’. To that end, UNCLOS provides the authority to construct and use ‘installations’ in the form of oil platforms to extract resources from the continental shelf.Footnote 26 While states have the right to exploit the natural resources within their jurisdiction, UNCLOS establishes ‘the obligation to protect and preserve the marine environment’ when conducting activities such as oil extraction.Footnote 27
For its part, Article 235 UNCLOS is the key provision for addressing breaches related to the protection and preservation of the marine environment. Article 235(1) recognizes that states are not only ‘responsible for the fulfilment of their international obligations concerning the protection and preservation of the marine environment’ but also, in failing to do so, ‘shall be liable in accordance with international law’.Footnote 28 With reference to the findings of the International Tribunal for the Law of the Sea (ITLOS), a Commentary on Article 235 UNCLOS notes that ‘the general rule with respect to responsibility for failing to meet a State’s environmental protection obligations is the same as the ordinary rules of State responsibility’.Footnote 29 Those ordinary rules are detailed in the ILC Articles on State Responsibility (2001), which state that ‘every internationally wrongful act of a State entails the international responsibility of that State’.Footnote 30 The provisions of the ILC Articles on State Responsibility recognize that a wrongful act can be both an action and an omission, such as a state’s failure to prevent the pollution of another state’s marine environment. Such conduct is recognized as (i) constituting a breach of international obligations – like those arising under UNCLOS; and (ii) attributable to the state in question.Footnote 31
While we will return shortly to the first of these conduct elements and consider possible breaches of UNCLOS, the question of attributing Australia’s failure to prevent the 2009 Montara oil spill should be understood as referring not to the events on the Montara Wellhead Platform, but rather to the regulatory oversight exercised by Australia through its agent in the Northern Territory.Footnote 32
3.1. Attribution and the Montara Oil Spill
The oversight by Australia’s Northern Territory Department of Resources was criticized by the Montara Commission of Inquiry, stating that ‘it was not a sufficiently diligent regulator’,Footnote 33 and that how it ‘conducted its responsibilities gave it little chance of discovering PTTEPAA’s poor practices’.Footnote 34 Furthermore, the inquiry revealed that the Department had ‘adopted a minimalist approach to its regulatory responsibilities’ which, had it been otherwise, ‘most likely would have been sufficient to prevent the Blowout’.Footnote 35 It is important to note that the Department of Resources in the Northern Territory regulates ‘on behalf of the Commonwealth Government’, as the Australian federal government holds exclusive authority within the country to legislate on the marine environment beyond the territorial sea.Footnote 36 This was acknowledged by the Australian state, which noted:
While ultimate responsibility for Australia’s offshore areas beyond the three nautical miles from the territorial baseline rests with the Commonwealth, the Commonwealth currently jointly administers the regulatory regime and supervises offshore petroleum industry activities with the States and Northern Territory.Footnote 37
Thus, in exercising its overall powers, the Commonwealth delegated authority over ‘the day-to-day administration of petroleum activities’ in respect of the Timor Sea to the Northern Territory.Footnote 38 To that end, it can be stated that the actions of the Northern Territory Department of Resources, acting as a regulator by way of delegation from the Commonwealth, constitute acts attributable to Australia under international law, as referenced by the Articles on State Responsibility.Footnote 39
The Commission of Inquiry found that in carrying out its delegated power, the Northern Territory Department of Resources ‘was responsible for oversighting the requirements bearing on the integrity of the H1 Well, including the general requirement that good oilfield practice be followed’ and that it ‘was not sufficiently diligent in ensuring that principles of good oilfield practice would be followed by PTTEPAA’.Footnote 40
The Commission provided a specific example of the lack of due diligence that led directly to the uncontrolled release. When the PTTEPAA submitted an application to the Northern Territory Department of Resources to suspend the use of the H1 Well by seeking to cap it, the Inquiry was later informed by the manufacturers of the caps that were ultimately fastened that these plugs ‘were not intended to be used as barriers against a blowout’. The application ‘received preliminary approval in 30 minutes’. However, ‘the information that had been conveyed to the [Northern Territory Department of Resources] was seriously deficient’,Footnote 41 even though the regulator – represented by an individual who ‘had no real prior experience’ with capping methods or an understanding of the proposal’ – gave almost immediate approval for their use’.Footnote 42
Ultimately, in considering the oversight, the Inquiry ‘formed the view that the resources and expertise’ mobilized by the Department ‘were inadequate (effectively only one person, who appeared to have a limited ability to fulfil this task)’, and there seemed to be what might be termed regulatory capture, as the relationship between the regulator and the operator had ‘become far too comfortable’.Footnote 43 In the Commission of Inquiry’s view, the regulation within the Department of Resources was such that it was blind to the inadequate manner in which PTTEPAA was operating on the Montara Oilfield, which contradicted the principles of good oilfield practice’.Footnote 44 At the Inquiry, the Northern Territory’s submissions demonstrated that the regulator was unaware of this company’s operations as it was ‘contended that “at all material times prior to the Blowout, the Territory appropriately administered the licence area within which the Montara Wellhead Platform is located”. The Inquiry has no hesitation in rejecting this contention’.Footnote 45 In short, the Commission determined that the Northern Territory Department of Resources’ ‘regulatory regime was totally inadequate, being little more than a “tick and flick” exercise’.Footnote 46
Having outlined how the regulation of the Montara Oil Field falls under the jurisdiction of the Commonwealth of Australia, the previously mentioned issue of conduct identified as a breach of an international obligation – in this case, UNCLOS concerning the protection and preservation of Indonesia’s marine environment – now takes centre stage in our considerations.
3.2. Indonesia as the Injured State
For the Republic of Indonesia to invoke state responsibility, it must first demonstrate that Australia failed to respect an obligation owed to it.Footnote 47 Such obligations can be found in Part XII of UNCLOS, which pertains to the failure to protect and preserve a significant portion of its marine environment, such as the ongoing release of crude oil from the Montara Wellhead Platform within Australia’s EEZ, which has adversely affected Indonesian waters.Footnote 48 In essence, this obligation requires all states parties to UNCLOS, including Australia, to take ‘measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment’.Footnote 49
It is evident that Indonesia constitutes an injured state as a result of the 2009 Montara oil spill, which seeped into its maritime space, polluting its waters and harming its environment, as referenced in the judgment of the Federal Court of Australia in the 2017 Sanda case.Footnote 50 Although this case addressed the claim of only one Indonesian seaweed farmer, the stakes were high as it ultimately served as the foundation upon which the Federal Court of Australia approved, as previously mentioned, a 2023 class-action settlement exceeding US$1 billion.Footnote 51 Thus, it should come as no surprise that several experts were mobilized to provide evidence regarding whether oil had infiltrated the Indonesian marine environment. PTTEPAA, while admitting that ‘it was negligent in suspending and operating the H1 Well’, argued that it did not owe a duty of care to Mr Sanda.Footnote 52 Further, it contended that even if such a duty of care existed – stemming from the common law tort of negligence – ‘the evidence before the Court does not establish that any oil spilled from the H1 Well reached the areas in Indonesia’; thus it asserted that no harm transpired.Footnote 53
The evidence presented at this domestic civil trial regarding whether oil spilled from the H1 Well had entered the Indonesian marine environment was based not only on witness testimony but also on several studies related to modelling the oil spill trajectory, ocean currents, and oil weathering patterns, as well as aerial and satellite imagery.Footnote 54 In his concluding findings, Judge Yates stated: ‘I am satisfied, on the balance of probabilities, that Montara oil from the H1 Well blowout, in various weathered states, reached the coastal areas of Rote/Kupang’.Footnote 55 Yates J noted, among other things, reports from the Australian Maritime Safety Authority’s flight surveillance, which revealed that ‘by early September 2009 at the latest, the oil had travelled northwardly beyond the demarcation of Australia’s [EEZ], towards Timor and the Rote/Kupang region’; thus, it was located within the Indonesian marine environment.Footnote 56 With regard to the Indonesian seaweed crop, the Federal Court determined that ‘there is no other plausible explanation for that widespread loss’, as ‘there can be no doubt that crop death coincided with the arrival of the oil’.Footnote 57
4. Breaches of International Law
The previous section used the example of the Montara oil spill to establish the framework for attributing wrongful conduct and highlight obligations within the context of state responsibility. Having accomplished this, we now turn to the specific breaches of international law between Australia and Indonesia to emphasize the preventative nature of environmental law. Beyond the successful claims of seaweed farmers, the potential for Indonesia to take action through international law to address the Montara oil spill arises from the fact that both Australia (5 October 1994) and Indonesia (3 February 1982) are parties to UNCLOS. This instrument includes compulsory recourse to dispute settlement.Footnote 58
UNCLOS, which entered into force in 1994, establishes an overarching legal framework for sea and maritime regulations, including those concerning the marine environment. As ITLOS observes, Part XII of UNCLOS ‘sets out fundamental principles to provide direction and guidance to States in their endeavour to protect and preserve the marine environment and imposes upon States various obligations in this regard’.Footnote 59 Of specific relevance to the Montara oil spill, Article 194(2) UNCLOS ‘imposes upon States’, as ITLOS noted in 2024, ‘a particular obligation applicable to the transboundary setting’,Footnote 60 in that it requires states parties:
[to] take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.Footnote 61
For its part, Article 194(3) UNCLOS considers obligations to minimize pollution specifically from installations such as the Montara Wellhead Platform, particularly emphasizing measures for ‘preventing accidents’.Footnote 62
With regard to the preventative function, the International Court of Justice (ICJ) in the 2010 Pulp Mills case concerning claims of cross-border environmental harm to shared water resources, observed that ‘the principle of prevention, as a customary rule, has its origins in the due diligence required of a State in its territory’.Footnote 63 This due diligence, the ICJ determined, mandates that a state has an obligation ‘to use all the means at its disposal to avoid activities … causing significant damage to the environment of another State’.Footnote 64
Here, we discuss a grundnorm of international environmental law: the no harm principle, which is essential for understanding the duty of states to prevent transboundary harm.Footnote 65 This legal principle was first articulated in the 1941 Trail Smelter arbitration,Footnote 66 and reaffirmed in 2010 in Pulp Mills, in which the ICJ stated that it is ‘every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States’.Footnote 67 In 2015, in the Costa Rica–Nicaragua cases regarding activities along the shared San Juan River, the ICJ confirmed, as customary international law, that a state is ‘obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State’.Footnote 68
From these affirmations in law, brought on by ‘the accelerating developments of international environmental law that began in the 1970s’, one can now refer to the legal principle of ‘no-significant harm’Footnote 69 rather than a strict ‘no harm’ standard. The no-significant harm principle establishes a benchmark for acceptable environmental impact, while prevention pertains to the practical measures implemented to achieve that benchmark. This principle should guide decision-making to avert significant environmental harm. Meanwhile, preventative measures are proactive actions aimed at reducing the risks of significant environmental harm.Footnote 70
In the light of the impact of the Montara oil spill and the over US$1 billion in damages already awarded to individuals in one Indonesian industry (seaweed farmers), it can be inferred that the ILC 2001 Articles on Prevention of Transboundary Harm from Hazardous ActivitiesFootnote 71 may act as a reference point for actions regarding the obligation to prevent pollution in the marine environment. While we will revisit the Articles on Prevention of Transboundary Harm more fully in due course, it is important to note that Article 3 discusses the discharge of the duty of prevention through due diligence and therefore provides a definition:
Due diligence is manifested in reasonable efforts by a State to inform itself of factual and legal components that relate foreseeably to a contemplated procedure and to take appropriate measures, in timely fashion, to address them. Thus, States are under an obligation to take unilateral measures to prevent significant transboundary harm or at any event to minimize the risk thereof arising out of activities within the scope of Article 1. Such measures include, first, formulating policies designed to prevent significant transboundary harm or to minimize the risk thereof and, secondly, implementing those policies. Such policies are expressed in legislation and administrative regulations and implemented through various enforcement mechanisms.Footnote 72
In its 2024 advisory opinion, ITLOS acknowledged the ICJ description of due diligence as a general rule, as:
an obligation which entails not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities undertaken by such operators.Footnote 73
Previously, ITLOS partially examined the obligation ‘to ensure’ mentioned early in Article 194(2) UNCLOS, focusing on the provisions that require states to ‘tak[e] all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment’.Footnote 74 In considering this obligation to ensure, ITLOS stated:
It is an obligation to deploy adequate means, to exercise best possible efforts, to do the utmost, to obtain this result. To utilise the terminology current in international law, this obligation may be characterised as an obligation of ‘conduct’ and not of ‘result’, and as an obligation of ‘due diligence’.Footnote 75
Additionally, ITLOS noted that the ‘standard of due diligence must be more stringent for riskier activities’.Footnote 76
Consider now the conduct and results that arise from the obligations of due diligence required of Australia under general international law. As Brian Smith noted in his 1988 treatise, State Responsibility and the Marine Environment, the scope of application is such that ‘the logic of due diligence dictates that the state must exercise authority possessed over private activities in areas such as the contiguous zone, the continental shelf, and the exclusive economic zone to prevent environmental harm to another state’.Footnote 77 This requirement is to demonstrate authority by exercising a sufficient level of vigilance in the administrative control, in this case, of the activities in the Montara oil field.Footnote 78
In the context of the Montara oil spill, where the Australian Montara Commission of Inquiry found that the policies reflected in the legislative framework established by Australia, for the most part, were fit for purpose, the inadequacies identified related primarily to the implementation of this legislation.Footnote 79 More specifically, regarding the PTTEPAA, it would have been essential (to paraphrase) to deploy adequate means and make the best possible efforts to conduct activities in a manner that, with reference to Article 149(2) UNCLOS, does not ‘cause damage by pollution to other States and their environment’.
The 2010 Montara Commission of Inquiry determined that the Northern Territory Department of Resources was generally ‘not a sufficiently diligent regulator’,Footnote 80 and, more specifically, ‘was not otherwise sufficiently diligent in ensuring that principles of good oilfield practice were followed by PTTEPAA’.Footnote 81 Where oil well integrity was concerned, the Inquiry expressed its concern that the overarching framework of the Commonwealth of Australia was such that ‘well integrity issues do not receive necessary priority, thereby prejudicing safety and environmental objectives’ in waters adjacent to Indonesia in favour of, for example, ‘promoting industry development’.Footnote 82
5. Legal Consequences of the Wrongful Act
While compensation of more than a billion dollars has been awarded to Indonesian seaweed farmers, this is unlikely to represent the full extent of the environmental harm caused by the Montara oil spill.Footnote 83 Despite the uncertainty regarding the damage caused,Footnote 84 Article 235 UNCLOS states clearly that ‘States are responsible for the fulfilment of their international obligations concerning the protection and preservation of the marine environment’. After considering attribution and breaches of international law, the Articles on State Responsibility outline the ‘core legal consequences’ for addressing an internationally wrongful act.Footnote 85 A state that has ceased its wrongful conduct must seek to remedy the situation by providing ‘appropriate assurances and guarantees of non-repetition, if circumstances so require’, while also making full reparation for the wrongful act.Footnote 86 While our primary focus is on the appropriate guarantees of non-repetition, we will address, firstly, the cessation of the wrongful act, followed by an exploration of the various forms of reparation, partly to highlight their inadequacies in preventing the reoccurrence of significant transboundary harm, particularly to the marine environment.
5.1. Cessation of Wrongful Acts
In this case, the cessation of wrongful conduct relates to the pollution of the Indonesian marine environment caused by an oil company regulated by Australia and situated within its maritime jurisdiction. In this context, it can be stated that the actual control of the persistent oil release was a matter exclusively for Australia, in line with the general obligation of Article 194(1) UNCLOS, which stipulates that states must take measures to ‘control pollution of the marine environment’. The Montara Commission of Inquiry noted that it ‘is incumbent upon operators and, to some extent, regulators to manage the risks following a blowout in order to minimize the resulting impact’.Footnote 87 To that end – specifically regarding the cessation of the uncontrolled release of hydrocarbons – the Commission concluded that PTTEPAA had ‘carried out its response effort diligently and with vigour and a due sense of urgency’.Footnote 88
Regarding the impact of the uncontrolled release, Article 194(2) UNCLOS addresses the necessity of ensuring that activities conducted in the waters of one state do not harm the marine environment of another state and that ‘pollution arising from incidents … does not spread beyond the areas where they exercise sovereign rights’. Concerning the response to the Montara oil spill, the Australian Embassy in Jakarta stated that it ‘notified Indonesia as soon as possible after satellite imagery showed on 1 September 2009 that small patches of weathered oil had crossed into Indonesia’s exclusive economic zone’.Footnote 89 Three weeks later, Australia informed Indonesia that it had dispatched two vessels to Indonesia’s EEZ, where they undertook ‘containment and recovery operations’.Footnote 90 Where Australia was concerned, its ‘overall response objective’ in addressing the uncontrolled release was to prevent ‘oil from impacting on sensitive marine resources’ of – exclusively – Australia, and this ‘was largely achieved’. Based on an established National Plan,Footnote 91 the Australian Maritime Safety Authority ‘deploy considerable resources, including aircraft, vessels, equipment, and other materials’,Footnote 92 largely achieving its overall objective of protecting the Australian marine environment.
Beyond engaging in efforts to bring under control the release of hydrocarbons and mitigate the resulting damage, Australia’s role as a regulator also involves addressing deficiencies in its oversight of PTTEPAA when ceasing wrongful acts. This brings us, more generally, back to considerations of due diligence: preventing the pollution of the marine environment, ensuring that incidents do not spread or cause pollution-related damage to other states, and preventing accidents.Footnote 93 To that end, it can be said that the Montara Commission of Inquiry was established, in part, to address these deficiencies in the state’s oversightFootnote 94 – although, in doing so, one could argue that Australia did not fully acknowledge its international obligations towards Indonesia, whether under UNCLOS or otherwise.
In 2017, the Australian government released its final Report on the Implementation of the Recommendations of the Montara Commission of Inquiry, indicating that 92 out of the 105 recommendations made by the Commission had been accepted and implemented.Footnote 95 The Report also noted the creation of a new national regulator,Footnote 96 the National Offshore Petroleum Safety and Environmental Management Authority, which was intended to engage in ‘extensive compliance monitoring and enforcement measures to ensure that necessary safety and environmental safeguards are maintained’.Footnote 97
Having examined the conclusion of the Montara oil spill and the subsequent clean-up as a response to the wrongful act, attention now shifts to the issue of remedying the situation through various forms of reparation. These forms, designed to ensure ‘full reparation for the injury caused’, are outlined in the ILC Articles on State Responsibility as ‘restitution, compensation, and satisfaction’.Footnote 98
5.2. Forms of Reparation
Turning first to restitution, this form of reparations is, as the ILC Articles on State Responsibility make clear, designed to ‘re-establish the situation which existed before the wrongful act was committed’. Where this is feasible, a reset can occur, restoring the situation to what it was prior to the breach of international law and effectively erasing the consequences of such an unlawful act, thereby repairing the situation.Footnote 99 However, this type of reparation comes with a fundamental caveat: restitution is to be granted only if ‘it is not materially impossible’Footnote 100 to do so.
Such a consideration looms large regarding environmental harm and relates to the ongoing development of prevention as a central principle of international environmental law. The ICJ acknowledged this in its 1997 Gabčíkovo-Nagymaros ruling when it addressed the unique challenges posed by irreparable environmental damage.Footnote 101 In this case, which concerned a dispute over the construction of a barrage system on the Danube river between Hungary and Slovakia, the Court determined that ‘in the field of environmental protection, vigilance and prevention are required on account of the often-irreversible character of damage to the environment’.Footnote 102
In the case of the Montara oil spill, the issue is not so much one of irreversibility – for the seaweed farmers, at least – as they managed to resume their harvesting four years later.Footnote 103 Rather, the impossibility of re-establishing the situation was acknowledged – as noted earlier – by the Montara Commission itself, which stated that ‘it is unlikely that the full extent of environmental damage from the Montara oil spill will ever be established’.Footnote 104 Thus, as restitution would not be a proper course of action – in fact, it would be materially impossible in this case – a monetary substitute for restitution would come into play in the form of the second type of reparations mentioned above: compensation.Footnote 105
The issue of compensation for environmental damage has occupied the ILC for nearly half a century, leading it, since 1977, to seek to develop a ‘regime of strict liability pursuant to which the mere occurrence of damage to the environment would be a sufficient condition to trigger state responsibility in regard to the carrying out of hazardous activities’.Footnote 106 However, this objective was not achieved, as the ILC shifted its focus to the development of the 2006 Draft Principles on the Allocation of Loss in the Context of Transboundary Harm Arising from Hazardous Activities.Footnote 107 These Principles urged states to establish frameworks governing civil liability in such areas, where the polluter pays principle is evident, as demonstrated in earlier agreements concerning nuclear damage and oil pollution from maritime transport.Footnote 108
As further multilateral action stalledFootnote 109 it has been left to adjudicative bodies to set the parameters of compensation to be paid in seeking to repair the damage resulting from violations of international law related to environmental harm.Footnote 110 For its part, the ICJ awarded compensation for damage to the environment ‘in and of itself’ for the first time to Costa Rica, in its 2018 judgment in Certain Activities Carried Out by Nicaragua in the Border Area,Footnote 111 recognizing ‘that damage to the environment, and the consequent impairment or loss of the ability of the environment to provide goods and services, is compensable under international law’,Footnote 112 and that ‘such compensation may include indemnification for the impairment or loss of environmental goods and services in the period prior to recovery and payment for the restoration of the damaged environment’.Footnote 113
Australia and Indonesia may consider compensation to address the overall harm caused by the Montara Oil Spill, based on these considerations.
Beyond compensation and in addition to restitution, satisfaction appears to be owed to Indonesia. This aligns with the ILC Articles of State Responsibility, which notes that a ‘State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation’.Footnote 114
Beyond these general considerations, it is argued in this specific case that moral damages addressed through compensation would not fully rectify the wrong, even if complete financial compensation were provided for the effects of the Montara oil spill. This is apparent, as it should be recognized that compensation would not be deemed entirely appropriate because of the manner in which Australia regulated its offshore activities in the waters adjacent to Indonesia. As the Montara Commission of Inquiry recognized, Australian oversight was so lacking in due diligence that the regulator was unaware of the ‘multiple oversights and failings in the development of the Montara Oilfield’.Footnote 115 Had it not been for the Inquiry itself uncovering these issues, Australia, as the regulator, would not ‘have become aware of most of these deficiencies’ attributed to the PTTEPAA, and the Northern Territory Department of Resources ‘never placed itself in a position so that it could properly inform itself’ of these failings.Footnote 116 For this reason – the negligence of Australia in exercising what should have been due diligence in regulating a hazardous activity in adjacent waters – indicates that compensation, in conjunction with satisfaction, is not a sufficient means of fully rectifying the damage caused by the Montara oil spill.
In the light of the findings of the Montara Commission of Inquiry, it is challenging to see how Indonesia can have confidence that such an event will not happen again. Indonesia assumed, as it was legally entitled to, that Australia was fulfilling its obligations under UNCLOS in regulating this hazardous activity in its adjacent waters, at the very least, in a manner that accorded with due diligence. As it turned out, Indonesia was unaware of what was occurring in the Montara oil field, but so too was Australia equally uninformed. Consequently, it might be considered that while satisfaction is warranted regarding the ‘affront to the state’, in this particular case it does not go far enough.Footnote 117 While the ILC clearly indicates that satisfaction ‘will be determined having regard to the circumstances of each case’,Footnote 118 we argue that when there is a breach specific to international environmental law – with its preventative foundation – the nature of the wrong is such that providing appropriate satisfaction, even when coupled with compensation, fails to address a fundamental aspect of the breach. That critical element is an adequate prevention component of the remedy, ensuring that the injured party can be confident that, to the best of the responsible state’s ability, such an event will not happen again in the future.
Thus far, this article has examined the various elements of the regime of state responsibility. Simultaneously, this section has addressed the legal consequences of a wrongful act, including remedying a breach by ceasing the wrongful act and the types of reparation available. In the following section, again using the Montara oil spill as a backdrop, we explore another aspect of state responsibility aimed at addressing breaches of international law, which has largely been overlooked in environmental law. Specifically, we focus on the preventative function of remedies within the framework of state responsibility: offering appropriate assurances and guarantees of non-repetition.
6. Guarantees of Non-Repetition
Yoshifumi Tanaka argues that ‘the State-responsibility-oriented approach is of limited value where environmental protection is concerned’;Footnote 119 rather, ‘vigilance and prevention are required’.Footnote 120 However, the Articles on State Responsibility do provide a preventative mechanism as a remedy, albeit ex post facto, aimed at preventing subsequent environmental harm. In addition to the forms of reparation established in the ILC Articles on State Responsibility (restitution, compensation, and satisfaction), there are fundamental legal consequences arising from a breach of international law: cessation of the wrongful act and, more relevant to our discussion, the provision of appropriate assurances and guarantees of non-repetition.Footnote 121
Christian Tams interprets the ICJ ruling in the 2002 LeGrand caseFootnote 122 – which involved a state’s right to obtain appropriate assurances and guarantees of non-repetition arising from the failure to receive consular notice of an imprisoned national abroad – not only as the acceptance of a new remedy but as one that is ‘qualitatively different from the traditionally accepted forms of reparations’.Footnote 123 Tams highlights that, unlike reparations aimed at restoring the status quo, which are ‘restorative, or backward looking’, assurances and guarantees of non-repetition ‘are forward looking, not concerned with remedying past wrongs, but with preventing future breaches’.Footnote 124 They are, in the words of Sandrine Barbier, aimed ‘at preventing the commission by the responsible State of analogous breaches and they thus are exclusively concerned with the future’.Footnote 125 As Victor Stoica describes, such guarantees of non-repetition are pursued when a state has ceased a wrongful act, yet the other party ‘has reason to believe that this breach might occur into the future’.Footnote 126 The ILC states that ‘assurances and guarantees are concerned with the restoration of confidence in a continuing relationship. … They are most commonly sought when the injured State has reason to believe that the mere restoration of the pre-existing situation does not protect it satisfactorily’.Footnote 127
Regarding the extraction of oil and gas from the Bonaparte Basin, including the Montara oil field, it is hard to see how Indonesia could confidently believe that another incident similar to the Montara oil spill would not happen again. This perspective is further complicated by the fact that Australia was largely unaware of the activities leading to the oil spill and – were it not for the findings of the Commission of Inquiry, including ‘that not one of the five Montara wells currently complies’ with the company’s own established construction standards – would have remained oblivious to how oil installations operate under its jurisdiction in the waters adjacent to the Indonesian marine environment.Footnote 128
Similarly, Indonesia may view with scepticism the fact that PTTEPAA was allowed to retain its operating licence;Footnote 129 this, despite the Montara Commission of Inquiry finding that the company had provided ‘palpably false and misleading information’ and adopted a ‘self-justifying and deflective position throughout’ the Inquiry.Footnote 130 It was revealed during the Inquiry that PTTEPAA had ‘succumbed to a large number of deficiencies with respect to control of every other well at the Montara Oilfield’, yet failed to bring these to the regulator’s attention.Footnote 131 Beyond this, the Commission noted the ‘egregious failure of PTTEPAA to come to grips with the circumstances and likely causes of the Blowout’, which it stated ‘cannot be regarded as a matter of little significance or as a side issue’. Instead, ‘that failure undermines the extent to which PTTEPAA can be relied upon to make proper judgments, and act responsibly when its interests are at stake’.Footnote 132
Indonesia is once again in the position it was in before the uncontrolled release: unaware of the implementation of the Australian framework for governing its offshore petroleum installations in adjacent waters. This is particularly concerning given that, as the Montara oil spill illustrates, there is a real risk of transboundary environmental harm where PTTEPAA continues to operate.
Given the nature of the Montara oil spill, which caused significant transboundary harm to the environment, guarantees of non-repetition appear more fitting than assurances, as guarantees ‘imply a stronger obligation’ involving ‘additional acts such as taking potential preventative measures’.Footnote 133
6.1. Articles on Transboundary Harm as a Framework for Non-Repetition
We now revisit the ILC Articles on the Prevention of Transboundary Harm from Hazardous Activities (2001) as a roadmap for implementing appropriate guarantees of non-repetition in the context of state responsibility, particularly where prevention has generally failed. This is significant because at the core of the framework outlined in these Articles lies the obligation of states to ‘engage in cooperation and accommodation in their mutual interest’.Footnote 134
However, before considering the various ILC Articles on Prevention, it can be said that these were created to address transboundary harm before it occurs. We contend that these Articles provide a framework (i) to prevent transboundary harm, and (ii) to seek remedies for situations where environmental harm has already affected an injured state. This, in the context noted above, is essential for international environmental law, which is based on harm prevention to avoid possible long-term and, in certain instances, irreversible damage to the environment.
While the ILC 2001 Articles on the Prevention of Transboundary Harm from Hazardous Activities are not customary international law and thus are not binding on states per se, it should be emphasized that the concept of ‘prevention of transboundary harm arising from hazardous activities’ was confirmed as early as 1996 by the ICJ ‘in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons,[Footnote 135 ] as now part of the corpus of international law’.Footnote 136 Yet, the authoritative value of the Articles should be acknowledged as a product of development through the ILC process, where a consistent dialogue occurred with states through feedback. Therefore, we argue that the Articles on Prevention provide a baseline framework for establishing future-oriented guarantees of non-repetition in the context of state responsibility, particularly where transboundary environmental harm has already affected a state.
Such an argument is strengthened by re-evaluating the balance in the relationship between the so-called state of origin, which has an international obligation to prevent transboundary environmental harm, and the state likely to be affected, which, in our context, has become an injured state to which a remedy is owed. Consequently, both the responsible state and the injured state may be more inclined to adopt the framework devised explicitly by the ILC as a starting point ex post facto for seeking to restore both the legal situation and the injured state’s confidence that the harm will not recur.
The argument presented is as follows. When a state fails to prevent transboundary environmental harm, it creates an opportunity, within the context of state responsibility, for the injured state to seek a heightened preventative function as part of an appropriate guarantee of non-repetition in the future, in line with the ILC Articles on Prevention framework of ‘cooperation and accommodation’.Footnote 137 Thus, it should be recognized that when a breach of international environmental law has already occurred, the considerations of the Articles on Prevention of Transboundary Harm from Hazardous Activities gain greater significance – extending beyond merely preventing harm again – and play a crucial role in informing the framework of state responsibility, particularly with regard to appropriate guarantees of non-repetition.
Where the possibility of transboundary harm arising from hazardous activities exists, the ILC notes that ‘States have to ensure that such activities are carried out taking into account the interests of other States and therefore the freedom they have within their own jurisdiction is not unlimited’.Footnote 138 The ILC further states that:
The articles are primarily concerned with the management of risk and emphasize the duty of cooperation and consultation among all States concerned. States likely to be affected are given the right of engagement with the State of origin in designing and, where appropriate, in the implementation of a system of management of risk commonly shared between or among them.Footnote 139
The right of engagement of all concerned states is likely to be influenced by the state of origin in designing and implementing a risk management system. This issue becomes more pressing when an injured state seeks to prevent the reoccurrence of transboundary harm from a hazardous activity.
The preventative function within the ILC Articles on Prevention of Transboundary Harm addresses the state from which such harm might originate, urging it to take ‘all appropriate measures’. To that end, the ILC states that these measures encompass ‘all those specific actions and steps that are specified in the articles on prevention and minimization of transboundary harm’.Footnote 140 From this starting point, and recognizing the obligation of the state of origin to exercise due diligence in fulfilling this preventative function, the Articles shift to the requirement of cooperation, suggesting ‘the participation of the State likely to be affected in any preventive action, which is indispensable to enhance the effectiveness of any such action’.Footnote 141 Emphasized within the Articles with regard to these actions is the call for states to engage in consultation to reach agreements based on ‘an equitable balance of interests’.Footnote 142
Agreed measures should, in accordance with the ILC Articles on Prevention, consider various circumstances and factors of the case at hand, including the degree of risk, the importance of the activity, the extent to which states are willing to contribute to the costs of prevention, and the preventative measures of the state likely to be affected by similar activities.Footnote 143 Beyond these necessary measures, it seems appropriate, within the context of state responsibility and its guarantees of non-repetition, also to consider the overall context of an original failure to prevent transnational harm to ensure its specific non-reoccurrence.
The ILC Articles on Prevention of Transboundary Harm from Hazardous Activities set out further provisions – within the leitmotiv of cooperation and consultation – related to emergency preparedness, notification, prior authorization, risk assessment, and – most pertinent to the considerations that follow in the next section of this article – implementation.Footnote 144
That said, in general, the fact that the UN General Assembly called upon the ILC to undertake a study and develop provisions on the prevention of transboundary harm highlights the significance of the Articles as establishing an authoritative baseline framework for cooperation. Thus, states should embrace the Articles’ underlying ethos of cooperation and consultation while considering how the various draft Articles on Prevention might effectively contribute to addressing a breach of international law that causes transboundary environmental harm, with an emphasis on their implementation through institutional oversight to ensure non-repetition.
6.2. Institutional Framework as a Guarantee of Non-Repetition
In the light of established international environmental law – which recognizes prevention and the legal requirement to act with due diligence, along with the obligation to provide appropriate guarantees against the reoccurrence of a breach – we believe that the negotiating position of the injured state is strengthened in that it can seek a formal, institutional, consultative, and cooperative framework as a means of remedy. This would provide the most suitable guarantee against the recurrence of an environmental incident that has already occurred; thus, it forms part of a remedy that instils confidence in the injured state that, into the future, protective measures will be effective.
For its part, the ILC Articles on Prevention of Transboundary Harm provide an opening for such possibilities concerning its implementation considerations. The ILC notes that this provision ‘states what might be thought to be the obvious [that] States are required to take the necessary measures of implementation, whether of a legislative, administrative or other character’.Footnote 145 What may not be immediately obvious regarding this Article, but comes into focus concerning appropriate guarantees of non-repetition, is that this provision on implementation also addresses ‘the establishment of a suitable monitoring mechanism’.Footnote 146 The ILC mentioned such a mechanism ‘in order to highlight the measures of inspection which States generally adopt in respect to hazardous activities’.Footnote 147
In the context of a failure of due diligence that causes transboundary harm, the monitoring mechanism that best ensures the non-repetition of the original breach might take the form of a permanent institution. This shared entity, created by the injured and responsible states, would be tasked with monitoring and inspection through a mutually agreed consultative and cooperative bilateral framework, jointly developed with reference to various provisions of the ILC Articles on Prevention. In the first instance, guidance in developing the elements for such an institutional form of cooperation might be drawn from general considerations of the law of international organizations, supported by an examination of the numerous bilateral organizations focused on international rivers as a model. To clarify, the choice of international river organizations is not related to the substantive matters of water or its connection with the marine environment central to the Montara oil spill; rather, commissions regulating shared rivers have a long historical antecedence, are a well-established component of international relations, and collectively provide the most significant sample of institutions engaged in cooperative ventures intended to address issues of geographic proximity.Footnote 148
International organizations are understood to be ‘created between states, on the basis of a treaty, possess at least one organ, and have a will distinct from that of its member states (volonté distincte)’.Footnote 149 With regard to the physical establishment of such an organization, while Jan Klabbers notes the need for at least one organ, he further explains that international organizations typically have a plenary body intended to guide and supervise the activities of the organization according to its founding instrument, an executive body responsible for the daily activities of the organization, and a secretariat providing logistical support.Footnote 150 Nearly half a century ago, the International Law Association (ILA) developed Guidelines for the Establishment of an International Water Resources Administration to offer an effective template for international organizations managing shared river basins.Footnote 151 These Guidelines outline the following elements, which should, at a minimum, be ‘expressly stated’ in the treaty establishing such an international organization: ‘its objective or purpose, nature and composition, form and duration, legal status, area of operation, functions and powers, and financial implications’.Footnote 152
The Guidelines could serve as a basis for negotiating the establishment of a permanent institution aimed at ensuring non-repetition of transboundary harm, as it offers various options for the elements of an international organization. These options include different forms, such as separate national commissions or agencies, a joint commission or agency composed of national representatives, interest groups, or user representatives, a mixed commission or agency, or a commission or agency vested with supranational decision-making powers.Footnote 153
Returning to our example, what should we make of a situation in which a breach of international law that caused transboundary environmental harm resulted from an apparent failure of due diligence? Regarding the Montara oil spill, as with any case involving the peaceful settlement of an international dispute, it is for the concerned states, through mutual agreement, to consider the establishment of a bilateral institution and to have the full freedom to devise the framework of its mandate and the means of carrying this out.Footnote 154
Yet, beyond the predominance of law recognizing the requirement for due diligence and the obligation for appropriate guarantees of non-repetition, the already strong negotiating position of Indonesia, as the injured state, is further bolstered by the evident failure of due diligence that resulted in the transboundary environmental harm. In the case of the Montara oil spill, Indonesia’s ability to insist on the establishment of a bilateral international organization is still further leveraged by the occurrence of transnational harm within the marine environment governed by UNCLOS, as it mandates recourse to compulsory dispute settlement.Footnote 155 This framework of mandatory third-party dispute settlement is likely to incentivize the Australian government to seek the best possible outcome through negotiation, rather than risk unfavourable judgment from an international court or arbitration panel.Footnote 156 This is so, as the case appears to be unfavourable for Australia, as it may face potential liabilities amounting to billions of US dollars in compensation to Indonesia for the Montara incident arising from its apparent failings in due diligence as a regulator, its obligation to provide appropriate guarantees of non-repetition, and the recourse to obligatory judicial settlement required by the framework of UNCLOS.
Consequently, Australia may find it more practical and cost-effective to agree to fund the establishment and ongoing operational costs of a bilateral joint international organization designed, at minimum, to monitor the Australian petroleum industry in its adjacent waters. By financing the creation of such an organization, Australia would gain benefits (ownership of the organization’s offices, employment of Australian staff, and so on) arguably equal to those of Indonesia. In contrast, providing only monetary compensation to Indonesia would result in Australia gaining no tangible benefit from the resolution of the situation; rather, Australia might be called upon to pay more compensation for its environmental damage in that scenario. Conversely, Indonesia might be amenable to a smaller overall compensation package if a final agreement includes the establishment of a permanent bilateral organization. This would allow Indonesia to examine and address the oversight concerning how Australia implements its regulatory framework governing offshore petroleum operations in adjacent waters. Through this process, confidence would be built, especially since the Montara oil spill illustrates that a genuine risk of transboundary environmental harm exists for Indonesia, particularly as PTTEPAA continues its operations in the Bonaparte Basin.
In moving to develop the framework for a joint international organization, Australia and Indonesia could consider treating the areas of the Timor Sea between them as a shared watercourse of mutual interest. This approach would respect the jurisdictional zones established under international law and existing bilateral agreements, allowing both nations to effectively address the Montara incident. While the focus initially could be on certain elements of the ILC Articles on the Prevention of Transboundary Harm from Hazardous Activities – those related to risk assessment, emergency preparedness, prior authorization, and notification exclusively regarding the Australian petroleum industry – negotiations could be broadened. In the first instance, this might include, based on reciprocity, a similar monitoring of the Indonesian petroleum industry beyond its territorial waters adjacent to Australia.Footnote 157 Beyond this, there might be opportunities for a more expansive agreement focusing on environmental issues or, even more broadly, on activities within the adjacent waters, such as fishing, migration, shipping, or security, which both parties might find beneficial for joint monitoring.
7. Conclusion
This article has argued that state responsibility can play a unique role in supporting environmental law – a role that, to date, international environmental lawyers have yet to recognize or harness. With this in mind, the Montara oil spill has been used to examine the overlooked appropriate guarantees of non-repetition as a means of invoking state responsibility in a forward-looking manner, where a state that has failed to prevent transboundary harm is responsible for a breach of international environmental law.
Despite prevention being a grundnorm of international environmental law, violations of international standards that cause significant environmental harm are prevalent. This article demonstrates that prevention provides leverage to an injured state when negotiating appropriate guarantees of non-repetition with the responsible state. Guarantees of non-repetition differ qualitatively from forms of reparation as they are forward-looking. As such, it is suggested that in cases of a breach of environmental law, appropriate guarantees of non-repetition within state responsibility can be found in the framework of the ILC Articles on Prevention of Transboundary Harm from Hazardous Activities.
Based on cooperation and accommodation, such a framework provides a right of engagement for a state that would normally be affected but has now become an injured state seeking appropriate guarantees against non-repetition of environmental harm that has already occurred. Having been the subject of transboundary harm, the ability of the injured state to leverage, through negotiation, the provisions of the ILC Articles on Prevention – whether regarding emergency preparedness or risk assessment – comes to the forefront. Furthermore, in instances where transboundary environmental harm has already occurred, it is argued that the injured state’s negotiation position enables it to seek a formal, institutional framework for implementing future prevention measures.
In cases like the Montara oil spill, where it seems that the responsible state has failed in its legal duty of due diligence, it is argued that the guarantees of non-repetition further shift the balance in favour of the injured state. In such instances, if the injured state wishes, it can negotiate with the responsible state to establish a bilateral intergovernmental organization as an oversight mechanism designed to implement a framework for prevention. This approach may be viewed as the best means of ensuring that due diligence is carried out and, consequently, that such harm is less likely to occur again.
Acknowledgements
The authors wish to acknowledge the Monash University Law Indonesia Alliance (MULIA), which provided the forum leading to their collaboration.
Funding statement
Not applicable.
Competing interests
The authors declare none.
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