7.1 Introduction
A major obstacle to ensuring that environmental harm in areas beyond national jurisdiction (ABNJ) is compensated is challenges associated with access to remedies. In relation to damage caused by pollution in the marine environment in ABNJ, article 235 (2) of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) obliges states to provide recourse within their domestic legal systems as well as requires states to cooperate to implement and develop relevant rules of international law.Footnote 1 Access to remedies includes facilitating access to international and national courts to initiate claims for environmental harm, but also requires consideration of the associated rules that may constrain the ability of the court or tribunal in question to provide relief, such as jurisdiction over the subject matter of disputes and over certain defendants, rules on the choice of law and the recognition and enforcement of judgments rendered in such cases. As with other parts of this book, identifying the law addressing access to remedies depends on whether the claims for compensation are being pursued under international law or domestic law.
Under international law, liability and compensation for environmental harm will be determined by international dispute settlement mechanisms, and while such mechanisms include non-adversarial approaches (i.e. negotiation, mediation and conciliation), our focus here is on access to international courts or tribunals. In connection with domestic liability rules, the focus shifts to the competencies of domestic courts, which are, of course, principally a matter of national law. However, international law also places duties on states to ensure access to remedies within their domestic legal systems in order to ensure remedies are available to injured parties.Footnote 2 Pursuant to this general obligation, an important element of international civil liability rules is directed towards removing barriers to access to remedies within domestic legal systems through harmonized rules governing access to courts and the availability of effective remedies. Such rules have, to date, been enacted through civil liability treaties, which may provide useful lessons for implementing the general obligation to ensure access to remedies in the commons context.
This chapter begins with a discussion of the general rules and principles concerning access to remedies under the rules of state responsibility and domestic civil liability, respectively, before turning to the specific rules in ABNJ. This chapter addresses the substantial additional challenges that each of these sets of rules pose to realizing the goals of liability regimes, including the need to prevent environmental harm and restore the environment, to provide for effective deterrence of risky behaviour, to ensure a level playing field and to ensure adequate and prompt compensation.Footnote 3
7.2 General Approaches to Access to Remedies
7.2.1 International Forums
There are an increasing number of international courts and tribunals that can hear environmental disputes between states, including claims relating to environmental harm.Footnote 4 These include forums with general subject matter jurisdiction, such as the International Court of Justice (ICJ) and inter-state arbitral tribunals, as well as forums established under specialized treaty regimes or branches of international law, including international courts and tribunals with jurisdiction to hear disputes under Part XV of UNCLOS (UNCLOS forums).Footnote 5 Specialized claims commissions with competence, inter alia, in relation to environmental claims have also been established, such as the United Nations Compensation Commission (UNCC).Footnote 6
The fundamental principle in international dispute settlement is that states must consent to the jurisdiction of that court or tribunal. The ICJ will only have jurisdiction over an inter-state dispute relating to environmental harm in ABNJ if the disputing states have consented to refer such a dispute either by special agreement, in a treaty compromissory clause, or through acceptance of the Court’s jurisdiction by way of declaration under article 36 (2) of the ICJ Statute.Footnote 7 The ICJ has had fourteen cases submitted to it that involved environmental elements and, to date, the majority of them have been via the optional clause declaration instead of special agreements.Footnote 8 As the ICJ is a court of general subject matter jurisdiction, it has broad competence to hear disputes concerning state responsibility for environmental harm to the global commons, albeit that such claims may raise questions relating to standing in the context of potential challenges to jurisdiction and admissibility.Footnote 9
As an alternative to the ICJ, states could agree, either ad hoc or through a treaty compromissory clause, to submit a dispute concerning liability for environmental harm in ABNJ to inter-state arbitration. There are several examples of arbitration of environmental disputes,Footnote 10 and Stephens has suggested that within environmental arbitration practice, ‘states favour the ad hoc determination of specific disputes rather than institutional arbitration where the procedures are agreed in advance’.Footnote 11 Numerous multilateral environmental agreements make reference to arbitration of disputes concerning the interpretation or application of the agreement, although submission of a dispute to arbitration under these provisions often requires additional specific consent of the states parties to the dispute.Footnote 12 It has been widely observed that states may prefer to submit disputes to arbitration, rather than judicial settlement, due to the perceptions of enhanced party control over arbitral proceedings – for example in terms of arbitrator selection and the specification of procedural rules.Footnote 13 In particular, arbitration might enable parties to a dispute to exclude rules allowing third party intervention or other forms of participation such as amicus curiae submissions. For this reason, while arbitration may be well-suited to bilateral disputes, one matter of principle that might arise in relation to claims for environmental harm in ABNJ is whether arbitration is appropriate for disputes that engage wider questions of interest to the international community.Footnote 14
The most promising avenue for inter-state claims on environmental harm to the marine environment in ABNJ is recourse to UNCLOS forums to hear disputes on the interpretation or application of UNCLOS.Footnote 15 Under article 287, states parties can choose between four different forums: the International Tribunal for Law of the Sea (ITLOS); the ICJ; an arbitral tribunal constituted under Annex VII of UNCLOS; and an arbitral tribunal constituted under Annex VIII for special categories of disputes relating to fisheries, protection and preservation of the marine environment, marine scientific research and navigation. Annex VII arbitration is the default procedure if the parties to a dispute have not accepted the same procedure or if the parties have not made a declaration.Footnote 16 Given that any dispute on responsibility for environmental harm to the marine environment will involve the application of provisions concerning state duties to protect the environment under UNCLOS, the UNCLOS forums have broad plenary jurisdiction to hear claims relating to environmental harm in ABNJ. The application of the UNCLOS compulsory dispute settlement to liability claims for environmental harm in specific regimes applicable in ANBJ is addressed in Section 7.3.
There are several points of general application to be considered in relation to the use of international courts and tribunals to litigate claims relating to environmental harm in ANBJ.
7.2.1.1 Parties
The inter-state dispute settlement forums discussed above are only open to states. Only states have access to the contentious jurisdiction of the ICJ.Footnote 17 Similarly, the compulsory procedures in Part XV of UNCLOS (with the exception of disputes relating to activities in the Area) are only open to UNCLOS states parties,Footnote 18 and to international organizations that are parties to UNCLOS (presently, only the EU).Footnote 19 In general, arbitral proceedings are more flexible and there is scope for international organizations, non-governmental organizations (NGOs) and corporate actors to be parties to arbitral proceedings with states, subject to the agreement of the parties to the dispute.Footnote 20 Given that the primary perpetrators of environmental damage (in ABNJ or otherwise) are non-state actors, the ICJ and UNCLOS forums would primarily be used for claims to hold states accountable for oversight failures.Footnote 21 This substantive limitation means that recourse to inter-state claims will only capture a portion of potential environmental harm, and would on its own fail to hold other responsible parties accountable.Footnote 22
While one-off instances of environmental harm in ABNJ may be attributable to one state, there may also be cases of cumulative harm attributable to the conduct of several or even multiple states (or the private actors over which they have to exercise due diligence), and hence it may be necessary to initiate proceedings against more than one state.Footnote 23 The ICJ Statute does envisage multi-party proceedings in cases where several parties have the same legal interest, and the ICJ may also direct that proceedings in two or more cases be formally joined or litigated together without formal joinder.Footnote 24 UNCLOS forums also envisage the possibility of multiple parties to proceedings.Footnote 25 The possibility of multiple parties either being claimants or respondents in state-to-state arbitration is also feasible if consent of all relevant parties is given,Footnote 26 but as the number of parties increase the likelihood of all parties consenting decreases. There is no doubt, however, that inter-state arbitration, the ICJ and to a large extent ITLOS are primarily designed for the resolution of bilateral disputes. As currently conducted, international adjudication appears ill-suited to determine liability for diffuse environmental harms to the commons, such as ocean acidification or marine plastics pollution, that is attributable to a multitude of different actors, and which clearly goes beyond the actions of state actors alone.
Claims grounded in erga omnes standing raise further issues as to which parties are entitled to participate in proceedings that involve shared legal interests.Footnote 27 Cases that seek to hold one or more states responsible for environmental harm in ABNJ may have legal consequences for the broader community of states that use or benefit from the resources found therein. One potential avenue to increase participation would be through the rules of intervention in proceedings in the ICJ or ITLOS.Footnote 28 Both bodies require states seeking intervention to have ‘an interest of a legal nature which may be affected by the decision in the case’, and confer broad discretion on the ICJ or ITLOS to decide upon the request.Footnote 29 Interventions do not generally confer party status on intervenors and would not broaden the availability of remedies to other affected states, but would allow states that have an interest in the judicial determination of collective interests to present their views to the court. States have in other contexts sought to intervene in cases where community interests are at stake. New Zealand, for example, successfully intervened in the Whaling Case,Footnote 30 although it relied on article 63 of the ICJ Statute, which allows intervention as of right to states in proceedings involving the construction of a convention to which they are a party.Footnote 31 In the dispute on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar), the Maldives,Footnote 32 Canada and the Netherlands indicated an intention (not yet pursued at the time of writing) to intervene in those proceedings ‘which are of concern to all humanity’, raising the potentiality of interventions rooted in obligations erga omnes.Footnote 33 The legal basis of the proposed interventions – article 62 or 63 ICJ Statute – was not stated. In Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russia) dispute, by August 2022, four states had filed declarations of intervention under article 63 ICJ Statute.Footnote 34 More than forty states issued a joint statement indicating an intention to intervene.Footnote 35 Interventions in liability cases, even where the harm is alleged to have impacted a shared resource, may raise concerns about the equality of the parties, particularly where intervenors seek quite specifically to support one party or another.Footnote 36
Non-state actors, such as intergovernmental organizations (other than parties to UNCLOS), NGOs and other non-state entities are unable to initiate proceedings in international courts against states alleged to be responsible for environmental harm in ABNJ in UNCLOS forums.Footnote 37 As discussed in Chapter 6, there are conflicting views on whether such non-state actors should have the right to initiate proceedings in international courts and tribunals. On the one hand, it is argued that relevant international organizations and NGOs should have standing or legal interest to bring claims on behalf of the environment as they represent the ‘public interest’ or that they are ‘global guardians of environmental values’.Footnote 38 This is a logical extension of the principle of participation in environmental decision-making first articulated in Principle 10 of the Rio Declaration and entrenched in subsequent environmental treaties.Footnote 39 Indeed, this argument has some resonance for environmental harm in ABNJ where no state has suffered a direct injury – arguably giving international organizations and non-state actors’ access to international courts or tribunals increases the chances that environmental harm will not go unaddressed. Indeed, in national jurisdictions, government agencies play a crucial role in protecting shared environmental resources, for example, through their parens patriae jurisdiction.Footnote 40 The closest analogy to this role is the trustee-like role conferred on the International Seabed Authority (ISA) under article 137 of the UNCLOS.Footnote 41 In some states, NGOs are increasingly the actors that are holding states (and private actors) accountable for failing to meet their environmental obligations, although in most cases it is because national legislation permits certain non-state actors to have access to national courts.Footnote 42 Quite aside from the standing of these entities to pursue claims for environmental harm, there remains a lack of capacity for non-state actors to initiate or participate in international adjudicatory processes. If states wanted to confer authority on international organizations, such as regional fisheries management organizations (RFMOs) or regional seas commissions, to play a greater role in protecting the ABNJ environment, access to international judicial forums would need to be addressed.
Another route to expanding participation in environmental liability disputes in international courts and tribunals would be through more liberal intervention rules that allow courts and tribunals to receive amici curiae submissions from non-state actors, which are said to ‘improve the quality of judicial analysis and reduce judicial error, enhance the legitimacy and authority of international judicial decision-making and thereby strengthen the influence of these decisions on the behavior of governments and other actors’.Footnote 43 The ABNJ context, which is likely to involve novel legal and policy questions, would benefit from the diversity of perspectives that amici curiae could provide. Indeed, the concept of common heritage of humankind in Part XI of UNCLOS suggests a set of interests that transcend state interests and would provide an opportunity for those views to be presented to the court or tribunal in question. Presently, in contentious cases, the ICJ and ITLOS permit submissions from intergovernmental organizations only.Footnote 44 Arbitration, either ad hoc or under UNCLOS, does not expressly address amici curiae submissions.Footnote 45 Despite the lack of procedures authorizing amicus curiae interventions, NGOs have sought to participate in the proceedings before the ITLOS in the Activities in the Area Advisory Opinion and the Arctic Sunrise case. In both instances, the request for formal participation was refused but the briefs were circulated to the parties.Footnote 46 In some instances, international courts have invited or permitted specific amicus curiae submissions when called upon to address novel questions of international law, or when certain issues may not be argued by parties to the dispute.Footnote 47 This amicus function might be relevant in the context of ABNJ disputes where wider community or intergenerational interests may be invoked.
7.2.1.2 Available Remedies
The ICJ, arbitral tribunals and UNCLOS forums all clearly have the authority to order remedies for environmental harm that takes place in ABNJ.Footnote 48 Under the International Law Commission’s (ILC) 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts (ASR), full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction.Footnote 49 Environmental disputes in international courts to date have generally focused on securing the prevention or cessation of activities giving rise to environmental harm and/or on satisfaction in the form of declarations of illegality, rather than on monetary compensation as such, but more recent practice may indicate a move towards awards of such compensation.Footnote 50 The obligation to compensate for the damage caused (insofar as the damage is not made good by restitution) would ‘cover any financially assessable damage including loss of profits insofar as it is established’.Footnote 51 As explored in Chapter 6, damages may not be available, however, in circumstances where the plaintiff is relying on erga omnes standing to bring claims for environmental harm.Footnote 52 The approach of the ILC is to allow for the possibility of reparations, but only where the state seeking reparations can demonstrate that the claim is being made in the interests of the beneficiaries of the obligation. The law on this point is unclear, with the ILC expressly noting that article 48(2)(b) of the ASR represents ‘a measure of progressive development’.Footnote 53 The unanswered question is what steps a claimant state or states would need to take to show that the reparations are being used to protect the community interest.
7.2.1.3 Enforcement and Recognition
The ICJ, inter-state arbitral tribunals and ITLOS all provide for judgments or awards that are final and binding and that must be complied with.Footnote 54 That said, unlike the judgments of national courts, commercial arbitral tribunals and even investor–state dispute settlement, there is no overarching multilateral system of enforcement and recognition of judgments or awards issued by the ICJ, inter-state arbitral tribunals or UNCLOS forums, with the exception of the Seabed Disputes Chamber (SDC) of ITLOS.Footnote 55 The decisions of the SDC or any court or tribunal having jurisdiction over the rights and obligations of the ISA and the contractor (discussed in Section 7.3) are to be enforceable in the territory of the state party in the same manner as judgments or orders of the highest court of that state party.Footnote 56 While there is possible recourse to the Security Council in the event of non-compliance with an ICJ judgment, the Security Council’s powers under article 94(2) UN Charter have never been used.Footnote 57 The lack of enforcement and recognition of judgments and awards of the ICJ, ad hoc arbitral tribunals and UNCLOS forums undermines the utility of using these courts and tribunals to bring a claim for environmental harm in ABNJ.
7.2.1.4 Evidentiary Issues
Disputes concerning liability for environmental damage in ABNJ are likely to require consideration of complex scientific evidence. This has been discussed in Chapter 3 and will not be revisited here except to reiterate that based on practice to date, there have been questions about the extent to which international courts and tribunals are equipped to deal with such evidence.Footnote 58 These concern, amongst other things, the way in which expert evidence has been treated in international courts and tribunals, and the limited use that the ICJ in particular has made of its power to appoint its own experts to assist with evaluation of scientific data.Footnote 59 Further consideration is likely to be needed to improve this aspect of the practice and procedure of international courts.
7.2.1.5 An International Court for the Environment?
In light of the perceived shortcomings of existing international courts and tribunals in dealing with the nature and scope of environmental claims, as discussed above, there have been calls for the establishment of a specific international environmental court by academics, grassroots and environmental organizations, as well as some legal practitioners.Footnote 60 The arguments for an international environmental court relate to the ineffectiveness of existing dispute settlement forums in addressing the complexities of environmental disputes, the lack of scientific and technical knowledge on the part of judges and arbitrators and the lack of standing for non-state actors before such international courts and tribunals.Footnote 61 However, an international environmental court has not been established and seems unlikely to be established in the near future.Footnote 62 Indeed, to date, even specialized chambers for environment-related disputes within existing courts, such as the ICJ or ITLOS, have either been abandoned or have not yet been utilized.Footnote 63
7.2.1.6 Advisory Opinions?
An advisory opinion from either the ICJ or ITLOS is a non-binding court process open to states but their utility in determining liability and compensation for environmental harm in ABNJ may be limited.Footnote 64 Advisory opinions from ITLOS and its SDC have already contributed in elucidating the content of states’ due diligence obligations, and aspects of the liability rules under Part XI UNCLOS. Undoubtedly, advisory opinions have certain advantages over contentious litigation in that they avoid procedural obstacles related to contentious jurisdiction and standing, allow states and relevant international organizations to participate and have an authoritative (yet non-binding) character.Footnote 65 This has led to them being one of the avenues explored to clarify the obligations of states in relation to climate change, including the impact of climate change on the oceans, as exemplified by the recent requests for advisory opinions to ITLOS and the ICJ from the Commission of Small Island States on Climate Change and International Law and General Assembly, respectively.Footnote 66 Notably, both advisory opinions explicitly or implicitly ask questions which may require ITLOS and the ICJ to decide on the existence of liability of states for breaches of obligations to protect the marine environment from anthropogenic greenhouse gas emissions. However, it is uncertain how these international courts will respond to such requests. Undoubtedly, advisory opinions can contribute significantly to clarifying primary obligations of states, any gaps in the law, and may also affirm the existence and/or principles of liability for breaches of these primary obligations, but courts rendering advisory opinions may be reluctant to go as far as determining which states are specifically liable, the extent of liability and corresponding compensation, particularly in relation to environmental harm in ABNJ.Footnote 67
7.2.2 Domestic Forums
Another approach to access to remedies in respect of liability for environmental harm has been for recourse to be directed through domestic legal systems. In cases of transboundary harm, this approach has the principal virtue of allowing direct recovery to those who have sustained losses because of environmental harm from those most directly responsible for causing the harm. The challenge is, of course, that each system entails different rules and requirements that will impact the ability of victims of environmental harm from being able to pursue and recover damages (which will be explored in the following sections). A primary role of international law has been to seek greater consistency with domestic legal systems in how they approach the various elements of access to remedies.
7.2.2.1 International Obligation on Access to Remedies
The principle on access to remedies in domestic legal systems forms an integral part of the general requirement for states to put in place measures to ensure that prompt and adequate compensation is available. The ILC’s 2006 Draft Principles on the Allocation of Loss (Draft Principles) require that
[s]tates shall provide their domestic judicial and administrative bodies with the necessary jurisdiction and competence to ensure that these bodies have prompt, adequate and effective remedies available in the event of transboundary damage caused by hazardous activities located within their territory or otherwise under their jurisdiction or control.Footnote 68
Where the general obligation addresses the substantive requirements for redress, the access to remedies principle seeks to establish minimum procedural standards, at the heart of which is to ensure that the courts of the state that have jurisdiction or control over the activity resulting in harm have the competence to entertain claims for redress. This builds upon Principle 10 of the 1992 Rio Declaration which is understood as laying the foundations of ‘environmental democracy’ consisting of access to information, access to public participation and access to justice in environmental matters.Footnote 69 Principle 10 specifically provides that ‘effective access to judicial and administrative proceedings including redress and remedy, shall be provided’. While the Draft Principles are confined to transboundary harm, there is no principled reason to distinguish between transboundary harm and harm to the global commons in the context of access to remedies. The location of the activity or the harm, whether in another state or in ABNJ, should not impact the ability of the victim to seek redress.
The application of the obligation to provide access to remedies in the commons is reflected in article 235 (2) of UNCLOS, which as mentioned above, obliges states to ensure that recourse is available in accordance with their legal systems for prompt and adequate compensation or other relief in respect of damage caused by pollution of the marine environment by natural or juridical persons under their jurisdiction, without differentiating between damage within or beyond national jurisdiction.Footnote 70 The SDC identified the obligation to provide recourse under article 235 (2) as an element of a sponsoring state’s due diligence obligation that serves the purpose of ensuring that the sponsoring state meets it broader liability obligations where its wrongful acts cause damage.Footnote 71 However, given that UNCLOS acknowledges the need for ‘further development of international law relating to responsibility and liability for assessment of and compensation of damage’, it is not clear how stringently this obligation would be interpreted.Footnote 72 The structure of article 235(2) suggests that the content of the obligation to ensure recourse must be assessed in light of the specific requirements of each state’s domestic legal system, complicating the identification of minimum standards. Neither article 235 nor the Draft Principles enumerate minimum standards, leaving states with significant discretion in how this obligation is implemented.
The Draft Principles also include a non-discrimination requirement whereby foreign victims of transboundary damage should have non-discriminatory or equal access to remedies in the state of origin that are no less prompt, adequate and effective than those afforded to those that suffer damage within the state’s territory.Footnote 73 The application of non-discrimination to the global commons could be designed to afford victims of harm in the commons that same treatment as that provided to victims of non-transboundary harm. The difficulty, of course, is that non-discrimination only provides as much access to remedies as those available to domestic litigants, which may be insufficient to ensure an objective level of prompt and adequate relief, and to protect and restore the environment. As a central objective of UNCLOS is to provide a common standard of behaviour in relation to protection of the marine environment, an approach that seeks to harmonize domestic practice may be preferable. In this regard, it is noteworthy that article 235 does not contain a non-discrimination provision, and the prevailing approach within civil liability regimes has been the identification of harmonized standards governing domestic legal procedures. In considering what reasonable steps a state may have to take to ensure recourse in its domestic legal system, it is instructive to consider the types of obstacles that are likely to arise for litigants seeking damages for harm in ABNJ through domestic courts.
7.2.2.2 Choice of Forum
Private international law generally provides victims with some discretion in terms of where they can initiate proceedings. In the case of harm that occurs in ABNJ, claimants cannot initiate claims where the damage occurred, and would generally be restricted to their home courts or the jurisdiction of the defendant.Footnote 74 Article 235 (2) indicates that the state of the operator that caused damage to the environment is required to ensure within its legal system that there is recourse for prompt and adequate compensation or other relief. This is slightly different from the Draft Principles where the emphasis is on ‘hazardous activities located within its territory or otherwise under its jurisdiction or control’ rather than ‘natural or juridical persons under its jurisdiction’. The benefit of requiring the state of the operator to provide access to its courts rests on the assumption that operators’ assets are more likely to be located in their home state, thus avoiding the need for further recognition of any judgment in other jurisdictions. It may also reflect an ethical obligation on states that benefit from environmentally risky activities to ensure that operators can be held accountable where those risks manifest themselves. The approach in article 235, which focuses on ‘natural or juridical persons under [the responsible state’s] jurisdiction’ requires that there must be some link (usually incorporation) between the perpetrator and the state. This is unlikely to be straightforward in many cases.
For example, states that would prima facie have the obligation to ensure that recourse is available in their domestic systems for pollution caused to the marine environment in ABNJ by natural or juridical persons under their jurisdiction are the courts of the flag state if a vessel was involved in the incident leading to marine environmental harm.Footnote 75 However, the existence of flags of convenience means that the actual perpetrators may not have any link with the flag state, and may not have assets in the jurisdiction to satisfy a judgment. Moreover, the perpetrator may be a multinational corporation with subsidiaries in several jurisdictions.Footnote 76 The difficulty in unravelling causation may lead to multiple defendants, only some of whom the court in question may compel to participate in the proceedings, which in the absence of channelling, may lead to multiple proceedings. This could also open the possibility of courts using the doctrine of forum non conveniens to decline jurisdiction, since article 235 does not confer exclusive jurisdiction on the state with jurisdiction over the defendant which could result in the same defendant being exposed to several proceedings arising out of the same incident.Footnote 77 In determining whether it would accept jurisdiction, the court will look at contextual factors to see which legal system is better placed to decide the case.Footnote 78 The doctrine of forum non conveniens has been critiqued as directly impacting the access to justice of victims of environmental damage and allowing corporations (often the perpetrators of environmental damage) to escape liability, and is said to be ‘obsolete in a world in which markets are global and in which ecologists have documented the delicate balance of all life on this planet’.Footnote 79
Harmonization through civil liability treaties can clarify choice of forum questions. For example, the 1992 Protocol to the 1969 Convention on Civil Liability for Oil Pollution Damage (1992 Oil Pollution Liability Convention) provides that ‘where an incident has caused pollution damage in the territory including the territorial sea or exclusive economic zone of one or more contracting states, actions for compensation may only be brought in the courts of any such contracting state’.Footnote 80 Other forums such as the domicile of the defendant or the place where the vessel was arrested have been excluded. Under article V (III), the shipowner has the right to establish the fund in any of the contracting states in which an action is brought against the shipowner, or if no claim is brought, in any of the contracting states in which a claim could be brought. Article IX (3) of the 1992 Oil Pollution Liability Convention states that only the court of the place where the fund has been constituted is competent to decide on the apportionment and distribution of the fund and all claims for payments must in the end be addressed to this court. Most claims addressed to the Fund are settled amicably without the necessity for the intervention of courts and courts will usually intervene for purposes of reviewing the initial decisions taken by the Fund.Footnote 81 The choice of forum and determination of parties is further simplified through the channelling of liability to operators.Footnote 82
The 2010 Protocol to the 1996 Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances (2010 HNS Convention) adopts different jurisdictional provisions due to its geographical scope.Footnote 83 The 2010 HNS Convention applies to (1) all damage on the territory and in the territorial sea of a state party; (2) to damage by contamination of the environment of a state party’s exclusive economic zone (EEZ) or corresponding zone; (3) any damage other than environmental impairment outside the territory and territorial sea of any state if it has been caused by a substance carried on board a ship registered in a state party, or, in the case of an unregistered ship on board a ship entitled to fly the flag of a state party (emphasis added).Footnote 84 Thus, the 2010 HNS Convention also applies to property, personal injury and death claims that occur on the high seas but not to damage by contamination of the environment that occurs in the high seas. Where an incident has caused damage in the territory, territorial sea or EEZ of a state party, actions for compensation may be brought against the registered owner of the ship or other person providing financial security for the owner’s liability only in the courts of the state party that has suffered damage.Footnote 85 Where an incident has caused damage outside the territory and territorial sea of any state, actions for compensation may be brought against the registered owner of the ship or person providing financial security for the owner’s liability only in the courts of (a) the state where the ship is registered (or in the case of an unregistered ship, the state party whose flag the ship is entitled to fly); or (b) the state party where the owner has habitual residence or where the principal place of business of the owner is established; or (c) the state party where a fund has been constituted by the owner either where an action has been brought or if no action is brought, with any court in a state party in which an action can be brought under article 38.Footnote 86 The 1999 Protocol on Liability and Compensation for Damage Resulting from the Transboundary Movement of Hazardous Wastes and Their Disposal (1999 Basel Liability Protocol) also recognizes that claims may be brought in the courts of a contracting party where (1) the damage was suffered; (2) the incident occurred; or (3) where the defendant has his habitual residence or his principal place of business.Footnote 87 These conventions provide a potential model for appropriate national courts for a civil liability regime for environmental harm in ABNJ, namely one which focuses on the nationality of the flag or where the defendant has his habitual residence.
7.2.2.3 Parties to the Proceedings
When one considers the likely plaintiffs in cases involving harm to the commons environment per se, further complications arise. As discussed in the previous chapter, non-state actors are less likely to have standing to pursue claims in relation to environmental harm per se to ABNJ. However, the ability of foreign states and international organizations to access domestic courts of another state may be affected by rules on judicial recognition of whether such international actors can pursue remedies in the national courts of another state, which will be unique in their application within each state. In the United States, for example, foreign states are granted access to US courts as a matter of comity, and as such access may be limited to ‘governments recognized by the United States and at peace with [the United States]’.Footnote 88 While this is a fairly narrow constraint, there is also a line of cases in the United States that constrain the ability of sovereigns from bringing cases in foreign (US) courts where the standing of the government is rooted in their parens patria jurisdiction to pursue claims on behalf of their nationals.Footnote 89 Claims grounded in a state or international organization’s rights to claim on behalf of the international community appear to fall outside the basis of judicial recognition of foreign governments or international organizations’ rights to pursue remedies. At a minimum, such claims would be dependent upon the rules of standing in relation to make claims on behalf of collective interests in the jurisdiction in question.
The international rules concerning sovereign immunities will also act to shield foreign governments and international organizations as defendants. Here the law quite clearly prevents foreign governments from being subject against their will to the proceedings of another state.Footnote 90 For example, UNCLOS contains a blanket immunity against claims for failing to protect the marine environment for ‘any warship, naval auxiliary, other vessels or aircraft owned or operated by a State and used, for the time being, only on governmental non-commercial service’.Footnote 91 The restrictive approach to immunity would allow for a commercial exception, so a state agency or enterprise engaged in a commercial activity that causes harm in ABNJ may not be able to claim immunity.Footnote 92 However, characterizing activities as either commercial or governmental in ABNJ, such as scientific research, harvesting marine genetic resources or engaging in marine geoengineering activities, is not straightforward. Even seemingly commercial activities like deep seabed mining may be undertaken for non-commercial reasons, such as securing a supply of critical minerals for defence purposes.
Civil liability conventions can direct parties to ensure that domestic courts have jurisdiction over parties that may not otherwise be recognized by domestic courts. For example, the 1992 Protocol on the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (1992 Fund Convention) has specific provisions requiring that states grant the International Oil Pollution Compensation Funds (IOPC Funds) the right to intervene in domestic legal proceedings and, as a corollary, provides that decisions undertaken with proper notice shall be binding on the Fund.Footnote 93 In relation to defendants, article XI of the 1992 Oil Pollution Liability Convention requires that state-owned ships used for commercial purposes be subject to suit in courts hearing compensation claims that the state ‘shall waive all defences based on its status as sovereign state’.Footnote 94
Some civil liability conventions also address multiplicity of proceedings. In the 1992 Oil Pollution Liability Convention, in cases where damage affects more than one state, claimants can choose where to bring their claims.Footnote 95 Although there is no lis pendens rule in the 1992 Oil Pollution Liability Convention (whereby proceedings in one contracting state could be stayed in favour of earlier proceedings in another contracting state), there will ultimately be a final bundling of claims when it comes to the distribution of the limitation fund established by the shipowner. In situations where damage affects more than one state, the claimant and the shipowner could potentially ‘forum shop’ and choose a forum that is favourable to them, given that there may be differing interpretations of the Convention’s provisions in different contracting states, although the likelihood of this is said to be small.Footnote 96 The 1999 Basel Liability Protocol addresses the situation where there may be a multiplicity of proceedings in different forums. Related actions are those which are so ‘closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings’.Footnote 97 It gives courts (other than the court first seized) the power to stay proceedings while actions are pending at first instance as well as the authority to decline jurisdiction if another court has jurisdiction and the law of that court permits the consolidation of related actions.Footnote 98
7.2.2.4 Choice of Law
Generally, the principle used to determine the law applicable to a tort is the place where the damage occurred (lex loci delicti). If the event leading to environmental harm took place solely in ABNJ, the lex loci delicti rule does not apply, as there is no state in which the tort was committed. There is no clear conflict-of-laws rule that has developed in relation to environmental harm in ABNJ, arguably because not many claims have been made in national courts.Footnote 99 Some parallels may be drawn from conflict-of-laws rules for other torts that occur on the high seas where national forums have adopted different types of rules for maritime torts on the high seas, depending on the type of tort and whether it is damage occurring outside the ship or on the ship.Footnote 100 For example, English courts apply the ‘general maritime law as administered in England’, which under English law happens to be the lex fori and this is also applied to collisions on the high seas involving two flags.Footnote 101 In France, maritime torts involving one ship are governed by the law of the flag.Footnote 102 Other jurisdictions determine the applicable law based on the law which has the most connection with the case, which would lead to different results depending on the circumstances of the case.Footnote 103 A different outcome might occur if the event giving rise to environmental harm in ABNJ occurred in areas under the national jurisdiction of the coastal state.
The willingness of a court to entertain a case or apply the law of the forum will also depend on the nature of the rights being protected. Rights of an economic nature, such as a right to engage in fisheries or to conduct certain scientific research, may have a close connection to the issuing jurisdiction despite the activity being undertaken in ABNJ. On the other hand, protecting the collective interests in the environment outside the territory of the state raises complex questions on the extraterritorial application of domestic law to what may amount to a shared property interest.Footnote 104
Civil liability conventions can clarify the determination of applicable law in two ways. First, the treaty or subsidiary rules often provide substantive rules, governing the claim. Second, the treaty may identify the applicable domestic law that is to be applied to matters not specifically regulated by the treaty itself.Footnote 105
7.2.2.5 Recognition and Enforcement
Finally, there may also be issues related to recognition and enforcement of judgments, the rules of which will differ from jurisdiction to jurisdiction and will also depend on whether there is a bilateral or multilateral instrument between the relevant countries. Recognition of foreign judgments is a matter of judicial comity, which injects a degree of discretion into proceedings for recognition.Footnote 106 Awards for damage to ABNJ areas may be perceived as raising public policy issues that may influence the receiving court’s determination of recognition. For example, awards for damages may turn on a foreign court’s understanding of the legal status of a particular commons resource that may not be universally held. Moreover, would a court recognize a judgment awarded to an officious state or private actor that initiated an environmental clean-up that it was under no legal duty to undertake? Civil liability conventions, on the other hand, contain provisions on mutual recognition and enforcement of judicial decisions rendered by a court within the jurisdiction of a contracting party.Footnote 107
There are several key lessons for ABNJ liability regimes that may be drawn from the experience of other civil liability regimes. First, there is a clear recognition of the need to address access to remedies issues through the establishment of harmonized rules. In the context of elaborating on the content of what steps may amount to due diligence in ensuring access to remedies, the approaches adopted within civil liability regimes provide a useful indication of reasonable steps states are willing to take to facilitate claims. Second, there are likely limits on the degree of generalizability of such rules, as the approaches adopted will reflect the structural features of the civil liability regime in question, such as the degree of channelling and the presence of a fund.
7.3 Specific Approaches to Access to Remedies in ABNJ
7.3.1 Antarctic
Annex VI to the Environmental Protocol on Liability Arising from Environmental Emergencies (Liability Annex)Footnote 108 adopts a dual system of forums, providing for international forums to address inter-state claims and domestic forums for claims against non-state operators. Until such time as the Liability Annex comes into force, any incident arising in the Antarctic will be governed by the general principles discussed in Section 7.2. The discussion in the following sections therefore focuses on how the Liability Annex addresses access to remedies.
7.3.1.1 International Forums
Claims against state operators by another state party to the Liability Annex for reimbursement costs responding to an environmental emergency are to be decided by state-to-state dispute settlement mechanisms including any enquiry procedure decided by the parties, as well as any dispute settlement procedures provided for in articles 18, 19 and 20 of the Protocol on Environmental Protection to the Antarctic Treaty (1991 Antarctic Protocol).Footnote 109 Article 18 stipulates that if a dispute arises out of the Antarctic Protocol, the parties to the dispute shall, at the request of any one of them, consult amongst themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means to which the parties agree. In the event that the parties cannot agree to a form of dispute settlement, the Antarctic Protocol provides for mandatory dispute settlement in articles 19 and 20. These provisions address, inter alia, the interpretation or application of article 15, which relate to emergency response action taken by the parties, and any Annex, including the Liability Annex, in the event that it enters into force, and provides that if states parties have not agreed on a means of resolving the dispute within twelve months of the request for consultation pursuant to article 18, they can choose either the ICJ or an Arbitral Tribunal to be established pursuant to the Schedule to the Antarctic Protocol.Footnote 110 The Arbitral Tribunal is the default option if a state party has not made a declaration on choice of procedure or if the parties to the dispute have not chosen the same procedure.
The application of the Antarctic Protocol’s mandatory dispute settlement provisions is confirmed in the Liability Annex,Footnote 111 but is restricted to circumstances, anticipated under article 6(1) of the Liability Annex, where a party has undertaken a response action to address an environmental emergency arising from the activities of another state operator that failed to take a response action. Regarding liability of state operators for payment of the costs of response action into the fund, the identification of the state which has standing to initiate proceedings is more complex. Since there is no injured state per se, the negotiating states ‘thought it undesirable to allow all other [States] Parties the simultaneous ability to bring dispute settlement actions against the responsible State operator’.Footnote 112 Therefore, rather than identifying the state that could invoke dispute settlement procedures, the Liability Annex leaves the settlement of disputes to the Antarctic Treaty Consultative Meeting (ATCM). The amount of the costs of the response action is to be approved by a decision of the ATCM with advice of the Committee on Environmental Protection where appropriate.Footnote 113 Further, the determination of liability of the state operator is to be resolved by the ATCM.Footnote 114 Decisions of the ATCM are taken by consensus so there is the possibility that a Consultative Party can block a decision related to its own liability. However, if a dispute remains unresolved, the dispute can go to the dispute settlement mechanism in articles 18, 19 and 20 of the Antarctic Protocol, although the Liability Annex still does not identify which state would have standing to invoke the dispute settlement mechanism.Footnote 115
The jurisdiction to pursue claims against state operators appears to be exclusive to the international forums discussed above and precludes the initiation of proceedings against state operators in domestic forums. There is also no provision for the ATCM to be held liable in any way, which reflects the ATCM’s lack of legal personality, (unlike the ISA), as well as the absence of any clear legal duties on the ATCM to protect the Antarctic environment (again, unlike the ISA).
7.3.1.2 Domestic Forums
With regard to non-state operators, the issue of which actor has standing to bring an action depends on whether it is an action for liability for reimbursement costs or if it is an action for liability for payment of costs of response actions into the fund.Footnote 116 In connection with liability for reimbursement costs, the only actor that can bring a claim against the non-state operator is the state party which has taken a response action.Footnote 117 The forum where such action could be taken was subject to debate and ultimately, two options were established in the Liability Annex. First, a state party can bring an action in the state where the non-state operator is incorporated or has its principal place of business or his habitual place of residence.Footnote 118 Second, if this fails because the non-state operator is not incorporated in a state party or does not have its habitual residence in a state party, then states parties can bring an action in the courts of the state party that authorized the activity.Footnote 119 States parties shall ensure that its courts possess the necessary jurisdiction to entertain these actions, although the precise requirements are not identified.Footnote 120
With regard to actions for payment of the costs of response actions into the fund, it was also not immediately clear which actor would have standing to bring a claim and therefore the issue of standing is not explicitly addressed.Footnote 121 Instead, states parties only have an obligation to ensure that there is a domestic law mechanism that exists for the enforcement of a claim against a non-state operator that did not undertake a response action and is therefore liable to pay an amount equal to the costs of the possible response action into the Fund.Footnote 122 The Liability Annex contemplates that such actions may be brought by the party of the operator or another party, leaving it to the relevant parties to determine who should take the enforcement action.Footnote 123
The limited scope of the Liability Annex leaves the question of recovery of damages for harm that falls outside a response action unaddressed. There is clear potential for general losses to be suffered. For example, oil spills from ships could interfere with tourism operators or with the conduct of scientific research. In such instances, access to remedies would be governed by general principles.
7.3.2 Deep Seabed
Claims for liability for environmental harm arising out of activities in the Area can be brought under special dispute settlement mechanisms established under section 5 of Part XI of UNCLOS. There is also the possibility of domestic courts hearing such claims but as discussed below, domestic courts face the same challenges here as domestic forums discussed in Section 7.2.2.
7.3.2.1 International Forums
The SDC is the primary forum to decide disputes relating to activities in the Area.Footnote 124 While article 187 of UNCLOS describes the SDC’s jurisdiction in considerable detail, the only reference to claims for liability is found in article 187 (e), which refers to disputes between the ISA, a state party and a contractor where it is alleged that the ISA has incurred liability ‘for any damage arising out of wrongful acts in the exercise of its powers and function’. However, article 187 could be interpreted broadly to cover most claims for compensable damage for environmental harm. For example, damage resulting from the ‘wrongful acts’ of the contractor and the ISA will necessarily require an interpretation of Part XI, the Annexes, the regulations, rules and procedures of the ISA, as well as any contractual arrangements, all of which are prima facie covered by articles 187(a) to (e). The SDC determines its own jurisdiction and may be inclined to take a broad approach to the jurisdictional provisions of section 5 given that the objective of section 5 of Part XI is to confer primary jurisdiction on the SDC to promote uniformity in jurisprudence.Footnote 125 This remains, however, an untested question of interpretation.
Accepting that the SDC has jurisdiction over certain disputes concerning environmental liability arising from activities in the Area, the question then becomes which actor can utilize the SDC to bring claims against the actor responsible for environmental harm. States parties, the ISA, the Enterprise and the contractors have access to the SDC, making the SDC unique amongst international courts.Footnote 126 In the event that a contractor has suffered direct losses as a result of environmental harm because of the actions of the ISA, it could potentially fall within articles 187 (c) and (e) of UNCLOS and the SDC would have jurisdiction. Sponsoring states and other states parties could bring claims against the ISA in the event ISA’s actions have resulted in environmental harm, and could do so for direct losses they have suffered or potentially for pure environmental damage in light of the SDC’s finding that ‘each state party may also be entitled to claim compensation in light of the erga omnes character of the obligations relating to preservation of the environment of the high seas and in the Area’.Footnote 127 Claims against sponsoring states for their failure to exercise due diligence were expressly noted by the SDC to fall under the SDC’s jurisdiction under article 187(b)(1).Footnote 128 The ISA can also initiate claims in the SDC against contractors and sponsoring states for environmental harm, including pure environmental damage, given its broad mandate to protect and preserve the marine environment.Footnote 129
However, the SDC does not have jurisdiction over all claims between the abovementioned actors. A contractor that has suffered losses as a result of environmental harm due to the actions of another contractor would not be able to utilize the SDC, unless both contractors are states parties, in which case, article 187 (a) could conceivably be relied upon. It is also not clear whether the SDC would have jurisdiction over disputes between contractors and other sponsoring states with whom they are not in a contractual relationship.Footnote 130 The SDC does not have jurisdiction over claims for environmental harm brought by states that are non-parties to UNCLOS, or by non-state actors (such as shipowners, fishermen, cable owners, owners/operators of installations operating in the high seas or in areas under national jurisdiction) or jurisdiction over claims brought against other non-state actors that may actually be responsible for the damage (such as subcontractors, agents, employees of contractors; owners or operators of vessels or installations involved in activities in the Area; manufacturer of equipment or parent corporations of contractors that are privately owned). Moreover, the jurisdiction of the SDC might give rise to incomplete or fragmented jurisdiction where a single incident gives rise to environmental damage to the Area and to the high seas water column.
Nonetheless, the SDC does have its advantages as a forum to hear disputes relating to environmental harm. Not only does it have jurisdiction over the primary actors involved in activities in the Area, including (importantly) the ISA, but it can appoint experts to give expert and technical advice on the complex issues relating to determining environmental harm.Footnote 131 Referring claims to the SDC would also have the benefit of developing uniformity in jurisprudence, particularly given the centrality of the SDC in disputes relating to activities in the Area.Footnote 132 Moreover, with regard to recognition and enforcement, UNCLOS affirms that any final decision rendered by the SDC relating to the rights and obligations of the ISA and the contractor (notably excluding the sponsoring state) shall be enforceable in the territory of each state party.Footnote 133 The SDC in its Advisory Opinion observed that legislation of sponsoring states should include provisions to ensure that any final decision rendered by a court or tribunal under UNCLOS relating to the rights and obligations of the ISA and contractor shall be enforceable in the territory of each state party.Footnote 134
One potential restriction of the SDC’s jurisdiction to hear claims is the limitation found in article 189, which provides that the SDC ‘shall have no jurisdiction with regard to the exercise by the Authority of its discretionary powers in accordance with this part’.Footnote 135 The nature of a liability claim against the ISA for its failure to exercise due diligence in its duty to protect the marine environment may require the SDC to determine whether actions taken by the ISA, which could be understood to be discretionary, meet the requisite standard. The analogy would be to restrictions in common law courts in reviewing the policy decisions of public authorities as a source of tort liability.Footnote 136 The rationale for this limited immunity is to avoid judicial interference with the legislative branches of government; a rationale that appears to underlie article 189. The wording of article 189, which affirms the jurisdiction of the SDC to decide cases involving ‘claims for damages to be paid or other remedy to be given to the party concerned for the failure of the other party to comply with its contractual obligations or its obligations under this Convention’, which would allow for claims against the ISA where it exceeds its jurisdiction. However, the SDC may still be constrained in reviewing the actions of the ISA on a reasonableness standard, which is in effect what a claim for a failure of the ISA to exercise due diligence would require.Footnote 137
7.3.2.2 Domestic Forums
UNCLOS does not explicitly mention domestic courts as a forum for deciding claims related to activities in the Area. However, article 235 (2) would, at the very least, require sponsoring states to ensure recourse within their courts for victims of environmental damage caused by sponsored contractors; a point confirmed by the SDC in its Advisory Opinion.Footnote 138 According to the SDC, the sponsoring state has a certain measure of discretion with regard to the adoption of laws and regulations and the taking of administrative measures in support of its general obligation of due diligence, but its discretion is not absolute – it must act in good faith, taking ‘the relevant options into account in a manner that is reasonable, relevant and conducive to the benefit of mankind as a whole’.Footnote 139
In principle, national courts of sponsoring states should have jurisdiction to decide claims relating to activities in the Area, including those related to environmental harm. They may prove particularly useful for actors that do not have access to the SDC, ITLOS special chamber or SDC ad hoc chamber or commercial arbitral tribunals constituted under section 5 of Part XI. These include the vessel owners, cable owners, fishing companies and non-party states to UNCLOS, as well as subcontractors, agents, employees of contractors; owners or operators of vessels or installations involved in activities in the Area; manufacturer of equipment or parent corporations of contractors that are privately owned. However, the same issues relating to the implications for access to remedies of non-harmonization of liability for environmental harm in the commons generally (as outlined in Section 7.2.2) would also apply to activities in the Area.
There are also specific challenges related to having two levels of forums to decide environmental harm claims. It may lead to inconsistent decisions relating to deep seabed mining and a fragmentation of interpretation of ‘the constitution’ of the oceans. The drafters of UNCLOS felt it important enough to reserve the jurisdiction of the SDC to decide issues of interpretation or application of UNCLOS even in the context of commercial arbitration. There is no such review by the SDC when it comes to decisions of national courts even if they may decide matters that address UNCLOS and/or activities in the Area that are carried out for the benefit of humankind. Indeed, it has been argued that ‘it should be recognized that if jurisdiction over “activities in the Area” is fragmented, the importance of the Chamber and the authority of its decisions risks being diluted’.Footnote 140 Moreover, having two forums may result in actors such as the contractor being potentially exposed to liability in two different forums for the same wrongful acts.
7.3.3 High Seas
Absent a specific international regime, or sectoral regimes for specific hazardous activities applicable in relation to the high seas, liability for environmental harm in the high seas is currently subject to the general rules and considerations concerning access to remedies discussed in Section 7.2 of this chapter, particularly the discussion relating to Part XV dispute settlement procedures under UNCLOS.
The recently agreed upon text of the agreement on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (2023 BBNJ Agreement) provides that disputes concerning the interpretation or application of the 2023 BBNJ Agreement shall be settled in accordance with Part XV of UNCLOS, and again the discussion in Section 7.2 of this chapter is relevant.Footnote 141 One potential issue is that the delimitation of jurisdiction between the SDC conferred pursuant to Part XI of UNCLOS and dispute settlement mechanisms in the 2023 BBNJ Agreement may be complex in relation to cases involving both harm to marine biodiversity and to the Area and its resources. For example, one suggestion has been that the negotiators, or ITLOS on its own initiative, might establish a standing chamber in ITLOS for disputes on marine biodiversity in ABNJ jurisdiction, but this may lead to additional questions concerning which body has jurisdiction to determine disputes.Footnote 142
A new dimension has been added to the 2023 BBNJ Agreement in terms of non-adversarial dispute settlement mechanisms. An Implementation and Compliance Committee will be established ‘to facilitate and consider the implementation of and promote compliance with’ the provisions of the BBNJ Agreement, along with a provision that parties may refer disputes concerning a matter of a technical nature to an ad hoc expert panel which shall ‘confer with the Parties concerned and shall endeavour to resolve the dispute expeditiously without recourse to binding procedures’ established under Part XV of UNCLOS.Footnote 143 These non-adversarial processes could present possible opportunities for consideration of issues relating to liability for environmental harm in the high seas if it relates to the interpretation or application of the 2023 BBNJ Agreement, or its implementation and compliance.
It is also worth noting the 2023 BBNJ Agreement endows the conference of parties with competence to request advisory opinions from ITLOS ‘on a legal question on the conformity with this Agreement of a proposal before the Conference of the Parties on any matter within its competence’.Footnote 144 As in the case of the SDC’s advisory jurisdiction, such requests may provide an opportunity to seek elucidation of relevant rules concerning liability for environmental harm in the high seas.
7.4 Conclusions
While claimants for environmental harm in ABNJ potentially have both international and national forums in which they can pursue remedies, both sets of forums present numerous challenges. International and national forums are not mutually exclusive and the suitability of either will depend on a range of factors. However, what is clear is that neither are perfect solutions to address claims in respect of environmental harm in the ABNJ. Undoubtedly, international forums specifically catered to address activity-based harm (such as activities in the Area and activities in Antarctica) and which have an institutional mechanism or structure that can initiate claims for environmental harm have specific advantages over regimes which lack such an institutional mechanism. However, it is inescapable that the utilization of any of these forums for litigating claims depends on the willingness of states (or the relevant institutional mechanism) to bring such claims. Indeed, ‘states have historically shown a great reluctance to initiate proceedings even where environmental damage is very severe’.Footnote 145 The practice of civil liability regimes demonstrates that many of the issues associated with domestic claims can be addressed through harmonization of claims procedures. However, there is little appetite to develop civil liability regimes that would cover environmental harm in ABNJ. This raises larger questions of whether courts and tribunals (whether national or international) are appropriate to address environmental harm in ABNJ given problems associated with standing, an absence of interest in utilizing them, issues relating to expertise in evaluating environmental harm and recognition and enforcement of judgments. Indeed, courts and tribunals may be particularly unsuitable for addressing cumulative, long-term environmental harm and other mechanisms such as funds (explored in the next chapter) may provide an appropriate alternative.
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