[IntLawProfessors] Seabed Disputes Chamber Advisory Opinion of February 2011

[Caroline Foster]

Dear Don

Thanks for your thoughtful replies.  The post can be cited as a contribution to email discussion. It was probably inaccurate of me to refer to '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' - this should be read as referring to a time when there is greater clarity on the general question of how obligations binding individuals can be created at international law.  Then there is the interesting issue of what rules on their international legal responsibility could one day follow.

Kind regards,
Caroline.
-- 

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 Mar 5, 2011, at 5:30 PM, Don Anton wrote:

> 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:
> 
>