Selected Decisions and Documents of the Seventeenth Session ...

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opinion is reproduced in the annex to the present note, in the original languages of the opinion (English and French), as well as in Arabic, Chinese and Russian. The full text of the opinion will be made available to members of the Council and to members of the Legal and Technical Commission. The request from the Council, the orders, the text of the advisory opinion, the dossier and additional information submitted by the Authority, the written and oral proceedings and press releases are available on the website of the Tribunal. 16. The Council is invited to discuss the content of the advisory opinion and to make such recommendations for further action as it deems necessary. Annex Text of the dispositif of the advisory opinion of the Seabed Disputes Chamber 242. For these reasons, [Original: English and French] The Chamber, 1. Unanimously, Decides that it has jurisdiction to give the advisory opinion requested; 2. Unanimously, Decides to respond to the request for an advisory opinion; 3. Unanimously, Replies to Question 1 submitted by the Council as follows: Sponsoring States have two kinds of obligations under the Convention and related instruments: A. The obligation to ensure compliance by sponsored contractors with the terms of the contract and the obligations set out in the Convention and related instruments. This is an obligation of “due diligence”. The sponsoring State is bound to make best possible efforts to secure compliance by the sponsored contractors. The standard of “due diligence” may vary over time and depends on the level of risk and on the activities involved. This “due diligence” obligation requires the sponsoring State to take measures within its legal system. These measures must consist of laws and regulations and administrative measures. The applicable standard is that the measures must be “reasonably appropriate”. B. Direct obligations with which sponsoring States must comply independently of their obligation to ensure a certain conduct on the part of the sponsored contractors. Compliance with these obligations may also be seen as a relevant factor in meeting the “due diligence” obligation of the sponsoring State. __________ 1. ITLOS/PV.2010/1/Rev.1, Verbatim record — Uncorrected, lines 24‐27, p. 1. 35
The most important direct obligations of the sponsoring State are: (a) The obligation to assist the Authority set out in article 153, paragraph 4, of the Convention; (b) The obligation to apply a precautionary approach as reflected in principle 15 of the Rio Declaration and set out in the Nodules Regulations and the Sulphides Regulations; this obligation is also to be considered an integral part of the “due diligence” obligation of the sponsoring State and applicable beyond the scope of the two regulations; (c) The obligation to apply the “best environmental practices” set out in the Sulphides Regulations but equally applicable in the context of the Nodules Regulations; (d) The obligation to adopt measures to ensure the provision of guarantees in the event of an emergency order by the Authority for protection of the marine environment; and (e) The obligation to provide recourse for compensation. The sponsoring State is under a “due diligence” obligation to ensure compliance by the sponsored contractor with its obligation to conduct an environmental impact assessment set out in section 1, paragraph 7, of the annex to the 1994 Agreement. The obligation to conduct an environmental impact assessment is also a general obligation under customary law and is set out as a direct obligation for all States in article 206 of the Convention and as an aspect of the sponsoring State’s obligation to assist the Authority under article 153, paragraph 4, of the Convention. Obligations of both kinds apply equally to developed and developing States, unless specifically provided otherwise in the applicable provisions, such as principle 15 of the Rio Declaration, referred to in the Nodules Regulations and the Sulphides Regulations, according to which States shall apply the precautionary approach “according to their capabilities”. The provisions of the Convention which take into consideration the special interests and needs of developing States should be effectively implemented with a view to enabling the developing States to participate in deep seabed mining on an equal footing with developed States. 4. Unanimously, Replies to Question 2 submitted by the Council as follows: The liability of the sponsoring State arises from its failure to fulfil its obligations under the Convention and related instruments. Failure of the sponsored contractor to comply with its obligations does not in itself give rise to liability on the part of the sponsoring State. The conditions for the liability of the sponsoring State to arise are: (a) (b) Failure to carry out its responsibilities under the Convention; and Occurrence of damage. The liability of the sponsoring State for failure to comply with its “due diligence” obligations requires that a causal link be established between such failure and damage. Such liability is triggered by a damage caused by a failure of the sponsored contractor to comply with its obligations. The existence of a causal link between the sponsoring State’s failure and the damage is required and cannot be presumed. 36
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Page 7 and 8: participation in the two instrument
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Page 15 and 16: 48. In order to facilitate a better
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Page 35 and 36: host country of the Authority. The
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ISBA/17/C/13 Summary report of the
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B. Information on the periodic revi
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B. Review of two applications for a
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C. Consideration of the recommendat
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4. While recommendations for the gu
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1. Welcomes the recommendation by t
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ISBA/17/C/15 Decision of the Counci
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ISBA/17/C/17 Decision of the Counci
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1. Notes the recommendation by the
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ISBA/17/C/21* Statement of the Pres
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VIII. CONSIDERATION AND APPROVAL OF
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LIST OF THE MAIN DOCUMENTS OF THE A
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ISBA/17/C/17 ISBA/17/C/18 ISBA/17/C
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Budget for 2001‐2002: ISBA/6/C/7;
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Regulations for prospecting and exp
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Resumed sixth session: ISBA/6/C/13;
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Selected Decisions and Documents of the Seventeenth Session ...

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