[IntLawProfessors] Seabed Disputes Chamber Advisory Opinion of February 2011

[Don Anton]

Dear Caroline,

Thanks very much for your insightful reading and detailed observation
of the recent AO. I am in general agreement, but more details responses
are below in CAPS.  In addition to the main contributions you have
identified up front, I also was pleased to see the Chamber push forward
the erga omnes character of the Convention obligation on the
preservation of the environment of the high seas and in the Area -- 
which you identify at the end -- and giving the right to all states
party to UNCLOS to claim "compensation" (which I do not read as a
limitation on other forms of reparations that might be available).

I am in the middle of preparing both a paper and a presentation on Case
17 and wonder if I might cite you for your treatment of private
parties?

Kind regards,
Don

>>> Caroline Foster <c.foster at auckland.ac.nz> 03/05/11 11:54 AM >>>
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.

AGREED HERE.  64-71 ARE GREAT AS FAR AS THEY GO.

 
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?
 
THESE ARE INITIAL THOUGHTS, BUT I THINK WE MAY HAVE ALREADY REACHED THE
STAGE WHERE THERE ARE DIRECT INTERNATIONAL OBLIGATIONS (WHETHER
RESPONSIBILITIES OR OTHERWISE) IMPOSED ON "CONTRACTORS' . . . UNDER THIS
CONVENTION".  I LIMIT MY VIEW TO THE CONVENTION.  I WOULD NOT GO SO FAR
AS TO CLAIM THIS WAS SO UNDER GENERAL INTERNATIONAL LAW.  

WHILE, AS YOU POINT OUT, CONTRACTOR OBLIGATIONS MAY ARISE THROUGH A
STATE'S "RESPONSIBILITY TO ENSURE" CONTRACTOR COMPLIANCE, THOSE
OBLIGATIONS REMAIN, IN MY VIEW, A SOURCE OF MUNICIPAL OBLIGATION (ALBEIT
ARISING IN PARTICULAR CASES THROUGH AN OBLIGATION OF EITHER MEANS OR
RESULT IMPOSED INTERNATIONALLY ON A STATE).  

THE MORE DIRECT CONTRACTOR CONVENTION OBLIGATIONS I SEE, IN RELATION TO
THE MARINE ENVIRONMENT ANYWAY, ARE THOSE ARISING UNDER ART. 145 AND
ANNEX III OF THE CONVENTION.  IN PARTICULAR, ARTS. 17(1) AND 17(2)(F) OF
ANNEX III, EMPOWER THE AUTHORITY TO ADOPT AND APPLY RULES, REGULATIONS
AND PROCEDURES RELATED TO PROTECTION OF THE MARINE ENVIRONMENT OF THE
AREA.  IT IS IN THOSE RULES, REGULATIONS AND PROCEDURES, WHICH ARE
CREATURES OF INTERNATIONAL LAW, THAT I SEE DIRECT INTERNATIONAL
OBLIGATIONS CREATED FOR CONTRACTORS UNDER THE CONVENTION.  SO, FOR
EXAMPLE, REGULATION 31(3) OF THE REGS ON POLYMETALLIC NODULES IN THE
AREA APPEARS, AT LEAST TO ME, TO DIRECTLY IMPOSE AN INTERNATIONAL
OBLIGATION ON CONTRACTORS.  GRANTED, THERE MAY NOT BE NOT BE MANY, BUT
THIS DOES APPEAR TO BE SOMETHING MUCH MORE SPECIFIC THAN ARTS. 139, 154
& 4(4) OF ANNEX III.

THE WAY I READ YOU, THOUGH, IS PERHAPS MORE INTERESTING.  I SEE YOUR
CENTRAL POINT AS QUESTIONING WHETHER IT MAKES SENSE TO TALK ABOUT
PRIVATE PARTY INTERNATIONAL LEGAL OBLIGATIONS (UNDER THE CONVENTION?)
UNTIL THE LAW OF STATE RESPONSIBILITY CATCHES UP.  I AM NOT DEFINITE ON
THIS, BUT I THINK IT DOES MAKE SENSE EVEN IF THE CONSEQUENCES OF BREACH
REMAIN UNCERTAIN.  AT LEAST ANNEX III, ART. 21(2) PROVIDES FOR THE
POSSIBILITY OF A "FINAL DECISION RENDERED BY A COURT OR TRIBUNAL"
RELATING TO "OBLIGATIONS" OF A "CONTRACTOR" AS "BEING ENFORCEABLE IN THE
TERRITORY OF EACH STATE PARTY".  THIS WOULD PRESUMABLY INCLUDE A
CONTRACTOR'S BREACH OF THE OBLIGATION IMPOSED BY REGULATION 31(3).


>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.
 
I AGREE WITH YOU ON EVERYTHING ABOVE STARTING AT YOUR "FROM PARA 164"

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.


I WAS EXPECTING THE RESULT, BUT AS YOU SAY, DISAPPOINTED THE CHAMBER
DID NOT PROVIDE MUCH MORE DETAIL.  ON A MORE SANGUINE NOTE, THE LIVING
LAW LANGUAGE IS GOOD FOR THE FUTURE SPECIFIC CASES AND NOT DOUBT THE ILC
PRINCIPLES WILL BE REVISITED ONCE A CASE THAT HAS A NEED FOR RESIDUAL
LIABILITY COMES ALONG.  

 

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.

I THINK YOU ARE CORRECT IN YOUR SURMISE AND I AM WORKING ON WAY TO
SUPPORT THIS RIGHT NOW.


 
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: