[IntLawProfessors] Seabed Disputes Chamber Advisory Opinion of February 2011

[Caroline Foster]

Dear colleagues
 
I am curious to know, if others have read the Seabed Disputes Chamber Advisory Opinion of February 2011, your views on its content.  The Opinion makes a distinctive and valuable contribution in the fields of due diligence, environmental impact assessment and the precautionary principle and in many important ways to the interpretation of the relevant provisions of UNCLOS.  The issue I mainly want to comment on here, though, is the way in which the opinion deals with state responsibility.  On the one hand a potentially valuable contribution is made in dealing with how private parties’ obligations come into effect on the international plane.  At the same time, however, the overall approach for dealing with responsibility could possibly have been clearer.
 
My concern relates to the Opinion’s failure always to distinguish between responsibility (in the sense of state responsibility), liability (in the sense used in English, which we might say refers to exposure to obligations to provide particular forms of reparation – thus there can be degrees of liability) and obligation (defined in the Opinion to include legal obligations expressed as ‘responsibilities’ in UNCLOS).  The Opinion deals quite clearly with liability and obligation (see paras 64 – 71) but the omission to set these against the notion of state responsibility from the beginning leads to a lack of clarity later in the opinion.  It of course is possible this came about through an attempt to avoid confusion, as the French and Spanish terms for liability are the same as those for responsibility.
 
I would be pleased to hear others’ views on the points below.
 
In paras 103 – 106 and para 108 of the Opinion it seems to me that here we are seeing an evolution in the development of understandings about the responsibility of private parties under international law.  In these paragraphs , the Chamber finds a way to deal with the issue of which substantive rules bind states and which bind operators by (a) finding that operators are obliged to comply with a broad set of rules including various provisions of UNCLOS and then (b) observing that States’ ‘responsibility to ensure’ in their domestic law that contractors comply with these rules is the mechanism by which these treaty rules become effective for contractors.  So far as (b) is concerned, the idea of the ‘mechanism’ of States’ ‘responsibilities to ensure’ appears a sound description of how the Convention operates. So far as (a) is concerned, the Convention does refer to “contractors’ obligations under this Convention”.  The interesting question is whether the language of obligation here must be regarded as a little softer than usual and perhaps more descriptive than prescriptive, until such time as the law on state responsibility evolves to a point where private parties are recognised as being bound by rules between states in fields of international law additional to international criminal law.  Or is the tribunal saying that we have already reached this stage?  How sustainable is such a view?
 
From para 164 the Chamber addresses Question 2, the extent of a State party’s liability for a sponsored entity’s failure to comply with the Convention.  The Chamber observes that under Article 139(2) of UNCLOS the failure of a sponsoring State to carry out its responsibilities entails liability only if there is damage.  Where there is no damage UNCLOS is silent.  However in such circumstances a State is nevertheless in breach of its obligations, and the Chamber could have made more of the point that the State’s international responsibility is engaged, with a range of consequences including the obligation to bring the situation of breach to an end.  The Chamber did make this point in para 178, but referred to customary international law on ‘liability’.  A state will also incur responsibility where the link between the State’s breach of its obligations and any damage cannot be established.  Here the Chamber more helpfully did refer to the customary international law on State responsibility, in para 183.
 
The Chamber also relied on the law of state responsibility to reach the finding that the amount of compensation payable by sponsoring States would be the same as the contractors’ liability under para 193 of UNCLOS for the actual amount of damage.  It was perhaps unfortunate that the Chamber introduced an element of confusion on the point, by stating in para 195 that the provisions in UNCLOS or contractors’ liability were equally ‘valid’ for States.  Readers must take their understanding of the point from the surrounding paragraphs of the opinion, which more clearly indicate that the extent of reparation is to be determined based on the law of state responsibility.
 
The Chamber rightly leaves open the form of reparation to be provided by States, which will depend on the circumstances.
 
There may be a slight sense of disappointment that the Chamber did not do more to indicate how international law needs to be developed further in the direction reflected in the ILC Principles on the Allocation of Loss in Case of Transboundary Harm arising out of Hazardous Activities (referred to in para 209).  Given that the Chamber may have moved forward everyone’s thinking in the realm of private parties’ potential responsibility under international law by identifying private parties’ obligations under UNCLOS, as discussed above, some might consider it a pity that there was no real hint of parallel reasoning in relation to the Principles.  In the case of the Principles it would obviously not be possible to rely on the language of obligation found in UNCLOS.  However the Principles are an important supplement to the law on state responsibility, and there is a serious need to encourage the international community to consider their content further.  Arguably it should be possible to rely on States’ control over private parties in order to hold States directly accountable for helping address harm caused by hazardous activities.  There is a pressing need globally for a sense of public duty in relation to harmful transboundary activity.  Additionally, it will be recalled that the ILC decided not to extend the principles to cover the global commons. However arguably the approach on which the Principles are based should apply beyond national territory:  the losses caused by environmental harm should be addressed through remedial action and other forms of response.
 
In conclusion, in relation to the international legal regime on state responsibility generally, it is important that the Chamber identified that this field of international law is not static (see para 211).  It is likely we will see further developments here in future, and in addition ongoing consideration should be given to how to deal with significant environmental harm in situations due to hazardous activities that are not illegal.
 
In paragraph 180 the Chamber touched helpfully on the potential, consistently with Article 48 of the ILC Articles on State Responsibility, for any State party to require performance of the obligation of reparation in relation to damage to the environment of the high seas and the area.  The Chamber’s reference to compensation rather than the broader concept of reparation, which may include restoration, is puzzling.  Perhaps the Chamber was referring to financial payments directed to restoration or other forms of reparation.
 
On another point, is the concordance between different language versions of UNCLOS is really as strong as described in paras 61 – 63 of the opinion?  The Chamber finds that States’ obligation to “ensure” contractors’ conduct fulfils the rules is one of conduct rather than result.  This does not seem consistent with the plain English meaning of “ensure”. Even the Concise Oxford gives the meaning of ensuring as “making certain”.  One wonders whether the Chamber should have made more of the French, Spanish and other language texts in para 110 rather than leaving them to a later para. One can see that ideally it would be the case that the different language versions of UNCLOS were completely concordant.  However, it there are genuinely differences between them, these minor differences need to be dealt with authoritatively, lucidly and promptly as they arise.
 
-- 

Dr. Caroline E. Foster
BA LLB (Cantuar) LLM PHD (Cantab) 
Senior Lecturer, School of Law

Room 2.16, Bldg 803
9 Eden Crescent
University of Auckland
Private Bag 92019
New Zealand

On Feb 22, 2011, at 8:35 AM, Don Anton wrote:


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