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ITLOS / Case No. 17
On 1 February 2011, the Seabed Disputes Chamber ("the Chamber") delivered its fi rst Advisory Opinion. The Council of the International Seabed Authority (ISA) requested the advice of the Chamber - the body within the International Tribunal for the Law of the Sea (ITLOS) with the relevant jurisdiction1 - on the limits of State liability when a contractor that a State is sponsoring to explore or exploit the seabed in areas beyond national jurisdiction causes damage or harm. In providing this advice, the Chamber was also requested to opine on the primary international obligations of a sponsoring State under the United Nations Convention on the Law of the Sea (UNCLOS or Convention), the breach of which would give rise to responsibility.
The case involved at least four historic fi rsts. It is the fi rst time that the advisory jurisdiction of ITLOS has been invoked. It is the fi rst time that the Tribunal has been unanimous in a ruling without separate opinions or declarations containing varying rationale - a testament to the President of the Chamber, Tullio Treves. It is the fi rst time that non-governmental organisations - Stichting Greenpeace Council (Greenpeace International) and the World Wide Fund for Nature submitting together- have had a written submission linked on the ITLOS website (although it was not made part of the case fi le), despite the fact that no treaty rule or internal ruling of the Tribunal provides for such a procedure. It is also the fi rst time that oral proceedings in ITLOS have been webcast live.
By way of background, the case naturally originates with the Convention, which declares the seabed and its resources that lie beyond national jurisdiction (a geographical component known as "the Area" in ITLOS circles) to be "the common heritage of mankind".2 This was one of the most signifi cant achievements of international law during the twentieth century. The doctrine of common heritage establishes norms preserving a large part of ocean space as a commons accessible to and shared by all States.
An important concomitant of common heritage in UNCLOS is the explicit promotion of effective participation and special consideration of developing States in the exploration and exploitation of minerals in the Area....