Collective Responsibility for Sound Marine Resource Management: Erga Omnes Obligations and Deep Sea Mining

Abstract

International law recognizes that there is a collective interest in protecting the marine environment. The Law of the Sea Tribunal (ITLOS) contributed an important application of this principle in its Advisory Opinion on sponsoring state responsibility and liability for deep sea mining activities in the ‘Area’ (the seabed, ocean floor and subsoil beyond the limits of national jurisdiction). ITLOS affirmed that where sponsoring states are in breach of their obligations, liability is to the international community, that is, it is erga omnes. The common heritage nature of marine resources implies that all states share these rights. However, states’ rights and duties with respect to governance of high seas resources need to be clarified. Enforcement of conservation obligations is a particular challenge for global commons, where an obligation erga omnes that is owed to all might be enforced by none. This paper traces the emergence of the erga omnes principle at the International Court of Justice, ITLOS and in commentaries. It then considers how it can be applied to protect ocean resources preventively through environmental assessment. The International Seabed Authority’s recent work on regulations for exploitation of deep seabed mineral resources is discussed as an example of an international organization coordinating with states sponsoring mining in high seas regions, as deep sea mining moves from experimental to full-scale industrial status.

Keywords: erga omnes, environmental protection, deep seabed mining, Law of the Sea, global commons