149
exercising effective jurisdiction and control on the sponsored investor, from the
obligation to act in good faith in the exercise of the activities in the Area nor its
liability for damages to the Authority or to third States.
Firstly, the Convention distinguishes the contractor’s obligations from the obligation of the sponsoring States so that the mitigation of the responsibility and liability of the latter State does not have any necessary detrimental effect on the obligations
of a contractor having no genuine link with the Sponsoring State. As a matter of
fact, the Chamber excludes that the sponsoring State and the contractor bear joint
liability as it considers that both forms of liability exist in parallel.
46
Secondly, an
entity acquiring the nationality of a developing sponsoring State of convenience,
while maintaining a genuine link with another State, is obliged to obtain a certification of sponsorship from both States in order to be qualified in the meaning of
Annex III, Article 4(3) of the UNCLOS.
47
Consistently, Article 11 of the Regulations
for the exploration of polymetallic nodules, sulphide nodules and cobalt-reach ferromanganese crusts in requiring that each application for approval of a plan of work
for exploration is to be accompanied by a certificate of sponsorship, also provides
that: “[w]here the applicant has the nationality of one State but is effectively controlled by another State or its nationals, each State involved shall issue a certificate
of sponsorship”. In this case, each sponsoring State must comply with the relevant
rules and regulations and each of them have the responsibility to ensure that activities carried out in the Area by the sponsored contractors are in conformity with the
relevant applicable rules. In addition, it must be stressed that according to Article
139 UNCLOS States acting together shall bear joint and several liability.
In the light of the foregoing, it may be assumed that if the drafters of the UNCLOS
really wished to give the principle of non-discrimination a residual character they
could have included it in Section 2, Part XI, among the principles governing the
Area, but there are good reasons to believe that such result would not have been
accepted by developing States. On the contrary, the special attention for their interests and needs was regarded and is to be considered as an essential basis of their
consent to be bound by the Convention, one of the main purposes of the norms
46 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion.
The Chamber held that “the liability regime established by article 139 of the Convention and in
related instruments leaves no room for residual liability. As outlined in paragraph 201, the liability
of the sponsoring State and the liability of the sponsored contractor exist in parallel. The liability
of the sponsoring State arises from its own failure to comply with its responsibilities under the
Convention and related instruments. The liability of the sponsored contractor arises from its failure
to comply with its obligations under its contract and its undertakings thereunder. As has been
established, the liability of the sponsoring State depends on the occurrence of damage resulting
from the failure of the sponsored contractor. However…this does not make the sponsoring State
responsible for the damage caused by the sponsored contractor” (ibidem, para. 204). On this point,
see Tanaka (2013), p. 221.
47 According to this provision: “[e]ach applicant shall be sponsored by the State Party of which it is
a national unless…the applicant is effectively controlled by another State Party or its nationals, in
which event both States Parties shall sponsor the application”.
The Interpretative Value of the Principle of the Common Heritage of Mankind…
exercising effective jurisdiction and control on the sponsored investor, from the
obligation to act in good faith in the exercise of the activities in the Area nor its
liability for damages to the Authority or to third States.
Firstly, the Convention distinguishes the contractor’s obligations from the obligation of the sponsoring States so that the mitigation of the responsibility and liability of the latter State does not have any necessary detrimental effect on the obligations
of a contractor having no genuine link with the Sponsoring State. As a matter of
fact, the Chamber excludes that the sponsoring State and the contractor bear joint
liability as it considers that both forms of liability exist in parallel.
46
Secondly, an
entity acquiring the nationality of a developing sponsoring State of convenience,
while maintaining a genuine link with another State, is obliged to obtain a certification of sponsorship from both States in order to be qualified in the meaning of
Annex III, Article 4(3) of the UNCLOS.
47
Consistently, Article 11 of the Regulations
for the exploration of polymetallic nodules, sulphide nodules and cobalt-reach ferromanganese crusts in requiring that each application for approval of a plan of work
for exploration is to be accompanied by a certificate of sponsorship, also provides
that: “[w]here the applicant has the nationality of one State but is effectively controlled by another State or its nationals, each State involved shall issue a certificate
of sponsorship”. In this case, each sponsoring State must comply with the relevant
rules and regulations and each of them have the responsibility to ensure that activities carried out in the Area by the sponsored contractors are in conformity with the
relevant applicable rules. In addition, it must be stressed that according to Article
139 UNCLOS States acting together shall bear joint and several liability.
In the light of the foregoing, it may be assumed that if the drafters of the UNCLOS
really wished to give the principle of non-discrimination a residual character they
could have included it in Section 2, Part XI, among the principles governing the
Area, but there are good reasons to believe that such result would not have been
accepted by developing States. On the contrary, the special attention for their interests and needs was regarded and is to be considered as an essential basis of their
consent to be bound by the Convention, one of the main purposes of the norms
46 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion.
The Chamber held that “the liability regime established by article 139 of the Convention and in
related instruments leaves no room for residual liability. As outlined in paragraph 201, the liability
of the sponsoring State and the liability of the sponsored contractor exist in parallel. The liability
of the sponsoring State arises from its own failure to comply with its responsibilities under the
Convention and related instruments. The liability of the sponsored contractor arises from its failure
to comply with its obligations under its contract and its undertakings thereunder. As has been
established, the liability of the sponsoring State depends on the occurrence of damage resulting
from the failure of the sponsored contractor. However…this does not make the sponsoring State
responsible for the damage caused by the sponsored contractor” (ibidem, para. 204). On this point,
see Tanaka (2013), p. 221.
47 According to this provision: “[e]ach applicant shall be sponsored by the State Party of which it is
a national unless…the applicant is effectively controlled by another State Party or its nationals, in
which event both States Parties shall sponsor the application”.
The Interpretative Value of the Principle of the Common Heritage of Mankind…