147
4 A Critical Reappraisal of the ITLOS Advisory Opinion
of 1 February 2011 on Responsibilities and Obligations
of State Sponsoring Persons and Entities with Respect
to Activities in the Area
The role played by the principle of the common heritage and its impact on the interpretation of part XI of the Convention came under scrutiny in the context of the
2011 Seabed dispute chamber’s Advisory opinion on responsibilities and obligations of States sponsoring persons and entities with respect to activities in the area.
41
The Council’s request was proposed in relation to the submission in 2009 of two
applications for approval of a plan of work for exploration by Nauru Ocean resources
Inc., sponsored by the Republic of Nauru, and Tonga Offshore Mining ltd., sponsored
by the Kingdom of Tonga, on several legal questions regarding the responsibility
and liability of sponsoring States. Nauru argued that the effective participation of
developing States in the activities in the Area is impossible without sponsoring private entities and that significant liability and costs resulting from their potential
misconduct might discourage or preclude developing States “from effectively participating in activities in the Area, which is one of the purposes and principles of
Part XI of the Convention”.
42
Focusing on Article 148 the Chamber maintained that UNCLOS does not authorize any differentiation between developed and developing countries as regards
responsibility and liability of the sponsoring States. As the Chamber puts it:
“According to this provision, the general purpose of promoting the participation of
developing States in activities in the Area taking into account their special interests
and needs is to be achieved “as specifically provided for” in Part XI…[N]one of the
general provisions of the Convention concerning the responsibilities (or the liability) of the sponsoring State “specifically provides” for according preferential treatment to sponsoring States that are developing States. As observed above, there is no
provision requiring the consideration of such interests and needs beyond what is
specifically stated in Part XI…This means that there is no general clause for the
consideration of such interests and needs beyond what is provided for in specific
provisions of Part XI of the Convention”.
43
The Seabed Dispute Chamber’s conclusions are particularly deceiving, especially if one considers that its opinions are deemed to be a “contribution to the
implementation of the Convention’s regime”.
44
Anyway, a closer examination of
Article 148 raises serious doubts on such an interpretation as far as it seems to be
41 ITLOS, Responsibilities and obligations of States with respect to activities in the Area, Advisory
Opinion, 1 February 2011. For comments on the Advisory Opinion see Rayfuse (2011), and
Tanaka (2013). See also Annuaire du Droit de la Mer (2011).
42 ISBA/16/C/6, para. 5.
43 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion,
paras 156 and 158.
44 Ibidem, para. 30.
The Interpretative Value of the Principle of the Common Heritage of Mankind…
4 A Critical Reappraisal of the ITLOS Advisory Opinion
of 1 February 2011 on Responsibilities and Obligations
of State Sponsoring Persons and Entities with Respect
to Activities in the Area
The role played by the principle of the common heritage and its impact on the interpretation of part XI of the Convention came under scrutiny in the context of the
2011 Seabed dispute chamber’s Advisory opinion on responsibilities and obligations of States sponsoring persons and entities with respect to activities in the area.
41
The Council’s request was proposed in relation to the submission in 2009 of two
applications for approval of a plan of work for exploration by Nauru Ocean resources
Inc., sponsored by the Republic of Nauru, and Tonga Offshore Mining ltd., sponsored
by the Kingdom of Tonga, on several legal questions regarding the responsibility
and liability of sponsoring States. Nauru argued that the effective participation of
developing States in the activities in the Area is impossible without sponsoring private entities and that significant liability and costs resulting from their potential
misconduct might discourage or preclude developing States “from effectively participating in activities in the Area, which is one of the purposes and principles of
Part XI of the Convention”.
42
Focusing on Article 148 the Chamber maintained that UNCLOS does not authorize any differentiation between developed and developing countries as regards
responsibility and liability of the sponsoring States. As the Chamber puts it:
“According to this provision, the general purpose of promoting the participation of
developing States in activities in the Area taking into account their special interests
and needs is to be achieved “as specifically provided for” in Part XI…[N]one of the
general provisions of the Convention concerning the responsibilities (or the liability) of the sponsoring State “specifically provides” for according preferential treatment to sponsoring States that are developing States. As observed above, there is no
provision requiring the consideration of such interests and needs beyond what is
specifically stated in Part XI…This means that there is no general clause for the
consideration of such interests and needs beyond what is provided for in specific
provisions of Part XI of the Convention”.
43
The Seabed Dispute Chamber’s conclusions are particularly deceiving, especially if one considers that its opinions are deemed to be a “contribution to the
implementation of the Convention’s regime”.
44
Anyway, a closer examination of
Article 148 raises serious doubts on such an interpretation as far as it seems to be
41 ITLOS, Responsibilities and obligations of States with respect to activities in the Area, Advisory
Opinion, 1 February 2011. For comments on the Advisory Opinion see Rayfuse (2011), and
Tanaka (2013). See also Annuaire du Droit de la Mer (2011).
42 ISBA/16/C/6, para. 5.
43 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion,
paras 156 and 158.
44 Ibidem, para. 30.
The Interpretative Value of the Principle of the Common Heritage of Mankind…