RESPONSIBILITIES AND OBLIGATIONS OF STATES SPONSORING PERSONS AND ENTITIES WITH RESPECT TO ACTIVITIES IN THE AREA: THE INTERNATIONAL TRIBUNAL OF THE LAW OF THE SEA'S RECENT CONTRIBUTION TO INTERNATIONAL ENVIRONMENTAL LAW

• Date: 01 July 2011
• Author: Günther Handl
• Published date: 01 July 2011
• DOI: http://doi.org/10.1111/j.1467-9388.2011.00719.x

Case Note

RESPONSIBILITIES AND

OBLIGATIONS OF STATES

SPONSORING PERSONS AND

ENTITIES WITH RESPECT TO

ACTIVITIES IN THE AREA:

THE INTERNATIONAL TRIBUNAL

OF THE LAW OF THE SEA’S

RECENT CONTRIBUTION TO

INTERNATIONAL ENVIRONMENTAL

LAW

INTRODUCTION

For over a decade following the International Court of

Justice’s (ICJ) 1997 Gabcˇikovo1decision, the jurispru-

dence of international tribunals and courts had offered

relatively few incisive pronouncements on matters of

international environmental law.2The tide began to

turn, however, last year when the Court delivered an

important judgment (including a number of remark-

able separate and dissenting opinions) in the Pulp Mills

case.3Two present ICJ proceedings – namely in the

Aerial Herbicide Spraying case4and the Whaling in the

Antarctic case5– may offer the prospect of similarly

important judicial clarifications of international envi-

ronmental legal issues. On 1 February 2011, it was the

International Tribunal on the Law of the Sea (ITLOS) to

add to the growing body of significant international

case law bearing on the environment when its Seabed

Disputes Chamber6rendered an advisory opinion on

the Responsibilities and Obligations of States Sponsor-

ing Persons and Entities with Respect to Activities in

the Area.7In some parts, the Chamber’s holding draws

heavily on the ICJ’s findings in the Pulp Mills case; in

other parts, it usefully expands upon established basic

legal concepts. However, the Advisory Opinion also

covers relatively unchartered legal territory and does so

concisely as well as convincingly. Moreover, in view of

the Chamber’s unanimity (not one of the Chamber’s

eleven members filed a separate opinion) the Advisory

Opinion should carry special evidentiary weight as

regards its key legal findings.

The Advisory Opinion traces its origin to a March 2010

proposal by the government of Nauru that the Interna-

tional Seabed Authority (ISA) seek legal clarification

from the Seabed Disputes Chamber of ITLOS on the

responsibility and liability of a State sponsoring activi-

ties in the Area (the seabed and ocean and subsoil

beyond national jurisdictions). Two years earlier,

Nauru had submitted an application for approval of a

work plan for exploratory seabed mining activities, but

had become concerned that the potential liabilities or

costs arising from its sponsorship of a mining entity

might exceed its financial capacities as a developing

country. Such exposure to financial risk, so Nauru

maintained, might preclude it – as well as any other

sponsoring State of developing country status – from

effectively participating in activities in the Area, thereby

undermining one of the cardinal principles of Part XI of

the United Nations Convention of the Law of the Sea

(UNCLOS) (Montego Bay, 10 December 1982). On 6

May 2010, ISA’s Council formulated a request for an

Advisory Opinion on the following three questions:

1ICJ 25 September 1997, Case concerning the Gabcˇ ikovo-

Nagymaros Project (Hungary v. Slovakia), [1997] ICJ Rep. 92.

2One evident exception is the Award in the Arbitration regarding the

Iron Rhine (‘Ijzeren Rijn’) Railway between the Kingdom of Belgium

and the Kingdom of the Netherlands, [2005], XXVII Reports of Inter-

national Arbitral Awards 135. Similarly, the World Trade Organization

(WTO) dispute settlement process has resulted in a number of

reports that are important from an international environmental legal

perspective. By the same token, the ICJ’s advisory opinion on the

Legality of Nuclear Weapons might be noteworthy here because of its

strong endorsement of the transboundary non-injurious of natural

resources as a principle of customary international law. See ICJ

Advisory Opinion of 8 July 1996, Legality of the Threat or Use of

Nuclear Weapons, [1996] ICJ Rep. 226, at 241–242.

3ICJ 20 April 2010, Case Concerning Pulp Mills on the River Uruguay

(Argentina v. Uruguay), not yet reported, found at <http://www.icj-

cij.org/docket/f‌iles/135/15877.pdf>.

4ICJ, Aerial Herbicide Spraying (Ecuador v. Colombia) case, ongoing,

information found at <http://www.icj-cij.org/docket/index.php?p1=3&

code=ecol&case=138&k=ee>.

5ICJ, Whaling in the Antarctic (Australia v. Japan) case, ongoing,

information found at <http://www.icj-cij.org/docket/index.php?p1=

3&p2=3&code=aj&case=148&k=64>. Additionally, the proceedings in

ICJ, Certain Activities carried out by Nicaragua in the Border Area

(Costa Rica v. Nicaragua), found at <http://www.icj-cij.org/docket/

index.php?p1=

3&p2=3&code=crn&case=150&k=ec>, might result in some interest-

ing ICJ pronouncements on environmental legal issues.

6The Chamber was composed of Tullio Treves, as President, and

judges Marotta Rangel, Nelson, Chandrasekhara Rao, Wolfrum,

Shunji, Kateka, Hoffmann, Zhiguo, Bouguetaia, and Golitsyn.

7ITLOS, Advisory Opinion of 1 February 2011, Responsibilities and

Obligations of States Sponsoring Persons and Entities with Respect

to Activities in the Area, not yet reported, found at <http://www.

itlos.org/index.php?id=109&L=0#c587>.

Review of European Community & International Environmental Law

RECIEL 20 (2) 2011. ISSN 0962 8797

© 2011 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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