The Principle of Residual Liability in the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea
McGill International Journal of Sustainable Development Law and Pollicy
23 Pages Posted: 12 Nov 2011 Last revised: 13 Nov 2015
Date Written: November 11, 2011
Abstract
Liability for damage of states sponsoring deep seabed mining activities arises only from a failure to meet an obligation of due diligence. The due diligence standard, however, raises a significant equitable problem of allocation. The difficulty is determining where the loss should lie for significant extra-territorial harm caused by activities under the jurisdiction and control of a state when due diligence has been in fact exercised to prevent such harm. Where diligence due has been accorded neither an injured state -- nor any state possessing erga omnes rights in the event of environmental harm caused in areas beyond all national jurisdiction -- will be able invoke state responsibility in order to seek reparations. Without more, the default position of international law is to allow the loss occasioned by environmental harm in such circumstances to rest with the innocent state subject to the harm. In Case Number 17, the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea had occasion to consider whether the principle of residual liability might alter this result for harm to the common heritage of humankind but determined that international law has not yet advanced that far.
Keywords: Law of the Sea, UNCLOS, ITLOS, Advisory Opinion, Deed Seabed Mining
JEL Classification: K33, K32
Suggested Citation: Suggested Citation