From the Depths: Rich Pickings of Principles of Sustainable Development and General International Law on the Ocean Floor—the Seabed Disputes Chamber’s 2011 Advisory Opinion

Abstract

In February 2011, the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea handed down its Advisory Opinion in Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area. Although primarily focused on governance of the deep seabed beyond national jurisdiction (‘the Area’), the Opinion has wider relevance for both international environmental law and general international law. More specifically, although sustainable development is not directly referenced in the Opinion, this article argues that it goes a long way towards strengthening many of the emerging normative rules associated with it. Using the International Law Association’s 2002 New Delhi Declaration of Principles of International Law relating to Sustainable Development as a framework, this article specifically analyses the Advisory Opinion’s contribution to the sustainable use of natural resources, the precautionary approach, common but differentiated responsibilities, and the principle of good governance.

Theory

“…The opinion consistently stressed the importance of conservation for future generations. 31 While the Tribunal was interpreting the common heritage of mankind framework of UNCLOS, 32 these principles of intergenerational equity and international cooperation are equally important to a CCH model.…”

An Environmental Management Strategy for the International Seabed Authority? The Legal Basis

“…Indeed, as French highlights, much of the stringency of the tone of the Advisory Opinion was influenced by the importance the Seabed Disputes Chamber attached to the common heritage principle. 17 The Chamber's focus on environmental protection is particularly relevant, given the recent expansion of exploration activities and the imminence of largescale mineral exploitation. Scientists are warning about the potential of commercial-scale seabed mining to cause severe and wide-spread environmental damage.18 Much of the damage may be long term or irreversible and restoration may, in some areas, be impractical, owing to the very slow rate of substrate reformation after mineral deposits have been removed.…”

Marine Renewable Energies: Opportunities, Law, and Management

“…One analysis of the decision concluded that the Advisory Opinion represents "a milestone in the life of Seabed Authority and the Law of the Sea" 92 and another has stated that "[c]ommon heritage may have become a rather historic and iconic idea in international politics-indeed, a little like deep seabed mining itself-but the Chamber has done much to present it as very much an active principle of international law, as well as being a fundamental, if a discrete, element of the promotion of global sustainable development." 93 Establishing an international institution with broad authority with regard to marine renewable energies would bring with it a wide range of benefits. It would reduce fragmentation and bring order to the matter.…”