6.2.1.1 States

The rules on standing are closely connected to the nature of the relief sought and are consequently influenced by evolving understandings of the types of harms recognized as compensable by international law.Footnote ³ Here it is useful to consider three distinct types of harm in ABNJ that will each trigger unique considerations for standing. First, states or their nationals may suffer direct harm to economic interests in ABNJ. For example, environmental harm could affect the ability of an actor to pursue living or non-living resource exploitation activities in ABNJ for which they have a right to access, for example, when fishing in the high seas is suspended in response to a pollution incident. Such harm relates less to the environment and more to the effects of environmental harm on an activity or resource for which a potential claimant has a property or economic interest. Second, states or actors under their jurisdiction may incur losses from undertaking preventive or reinstatement measures to protect or preserve the environment in ABNJ. These actions may be undertaken where a state feels these measures are necessary to protect maritime zones under their jurisdiction or other sovereign interests or a state or international organization could potentially undertake such actions where the sole purpose is to protect and preserve the environment in ABNJ. In this case, some loss is sustained by the actor taking these preventive or reinstatement measures. Could, for example, a non-state actor that seeks to remove oceans plastics seek damages from states or other actors that are the principal source of that form of pollution?Footnote ⁴ Finally, there are cases where a state or other actors seek compensation for unrestored (and often interim) harm to the environment, what is often described as ‘pure environmental loss’ or ‘environmental damage per se’. In this scenario, there is no identifiable actor that has suffered quantifiable harm or loss.Footnote ⁵ This section considers how international law may address the standing of states, international organizations and non-state actors to pursue liability claims for environmental harm in these different contexts.

Standing to bring environmental harm claims against states is generally confined to ‘injured states’, as reflected in article 42 of the International Law Commission’s (ILC) 2001 Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ASR).Footnote ⁶ The ‘injured state’ is the ‘state whose individual right has been denied or impaired by the internationally wrongful act or which has otherwise been particularly affected by that act’.Footnote ⁷ Article 42 stipulates that a state is entitled ‘as an injured state’ to invoke the responsibility of another state if the obligation breached is owed to

1. (a) that State individually; or

2. (b) a group of States including that State, or the international community as a whole, and the breach of the obligation

   1. (i) specially affects that State; or

   2. (ii) is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation.Footnote ⁸

The ASR do not define ‘injured state’, but specify that an injury ‘includes any damages, whether material or moral, caused by the internationally wrongfully act’.Footnote ⁹ The distinction between the circumstances outlined in subparagraphs (a) and (b) relate to the nature of the obligation owed, but both fundamentally require that the invoking state suffer an injury that arises due to the breach of obligation. The more likely situation in ABNJ are breaches of obligations that are owed to a group of states, as most international rules governing aspects of ABNJ tend to be communal not bilateral. However, where a state suffers direct material injury to its interests as a result of environmental harm in ABNJ, it will satisfy the requirements of being specially affected. For example, the commentary to article 42 observes that ‘a specially affected state’ may arise in the ‘case of pollution of the high seas in breach of article 194’ of the 1982 UN Convention on the Law of the Sea (UNCLOS) as this ‘may particularly impact on one of several States whose beaches may be polluted by toxic residues or whose coastal fisheries may be closed’.Footnote ¹⁰ Accordingly, ‘independently of any general interest of the States parties to [UNCLOS] in the preservation of the marine environment, those coastal States parties should be considered as injured by the breach’.Footnote ¹¹ Injury to the coastal state here is simply an example of a material injury to the legally protected interests of the injured state. Such interests could include rights or interests exercisable in ABNJ, such as damage to a submarine cable or interference with established fishing rights.Footnote ¹² Article 42 does not require that the harm be suffered exclusively by the injured state, but rather that the nature of the harm is distinct from any communal harm.

The more difficult legal question is how broadly or narrowly the notion of ‘specially affected’ is to be interpreted. One could conceive of circumstances – for example, an incident of pollution leading to damage to a high seas fish stock which a particular state had traditionally fished, or a state having to take specific response measures to mitigate an incident of pollution on the high seas – that could warrant the designation of a specially affected injured state under the rules of state responsibility.Footnote ¹³ However, this characterization is contingent on the claimant state showing some form of specific loss or damage. Fisheries, for example, are res communis and are subject to the freedom of the high seas – a state must establish that even though it did not have sovereign rights over the fisheries resource per se, it had a sufficient connection with it in that its loss directly or indirectly harmed it. This may be demonstrated by having a right to harvest certain fishery resources under a fisheries management agreement or acceptance by states of historic reliance on the fishery in question. The acceptance of a claim for standing will, thus, be context dependent and contingent upon the surrounding rights.

The case of a state seeking compensation for undertaking a response action deserves particular attention. The argument is that undertaking a response action, even though it is not required to do so, results in the state suffering damages that are unique. Under the Liability Annex to the 1991 Antarctic Protocol (discussed in Section 6.3.1), states are empowered to take response actions to protect resources in the Antarctic Treaty Area, and there are specific rules that provide for recovery in those circumstances.Footnote ¹⁴ States are not specifically authorized to take response actions in connection with high seas pollution, but a state could potentially rely on articles 192 and 194 of UNCLOS to argue that states are entitled to take positive steps to protect and preserve the environment, including response measures. If the response action is to prevent harm to the acting state’s own environment, there is a stronger argument that the state is specially affected and entitled to take reasonable steps to protect harm to its territorial interests.Footnote ¹⁵ The correct approach is far from clear, and raises issues concerning what have been called ‘officious intermeddlers’ in domestic legal settings – that is, actors who voluntarily undertake actions for the benefit of others and then seek compensation.Footnote ¹⁶ The distinction between ‘officious’ and ‘necessitous’ intermeddlers has not arisen in international law and some care must be taken to import such concepts. Nonetheless, a robust doctrine of necessitous intervention is consistent with calls by legal scholars to approach the question of ‘specially affected’ states from a remedial standpoint: Peel, for example, has suggested a liberal approach along the following lines:

The above discussion focused on when there is some form of material injury but there are also situations where there is no ‘injured state’ per se. In this case, article 48 (1) of the ASR states:

The ILC’s intention was to address those obligations where there may be no injured states to invoke responsibility for a breach, but felt it ‘highly desirable’ that states other than an injured state be entitled to take some measures in order ‘to protect the community or collective interest at stake’.Footnote ¹⁹

Article 48 (1) (a) refers to what has been described in the commentary to this article in the ASR as obligations erga omnes partes, that is, obligations owed between a group of states derived from multilateral treaties or customary international law, and established for the protection of a collective interest of the group.Footnote ²⁰ It is based on the SS Wimbledon case brought by the United Kingdom, France, Italy and Japan for Germany’s breach of its obligations under the 1919 Treaty of Versailles when it denied the passage of the United Kingdom registered vessel (chartered by a French company) through the Kiel Canal.Footnote ²¹ The Permanent Court of International Justice (PCIJ) affirmed that both Italy and Japan ‘had a clear interest in the execution of the provisions relating to the Kiel Canal, since they all possessed fleets and merchant vessels flying their respective flags’.Footnote ²² Notwithstanding the fact that they had not suffered any interference in their pecuniary interests, the Court recognized that they were an ‘Interested Power’ under article 368 (1) of the Treaty which gave them the right to institute proceedings before it.Footnote ²³ In effect, the doctrine recognizes that states do not need to wait until they are harmed by a breach of an obligation that is owed to them in order to take legal steps to address the breach.

Article 48 (1) (b) reflects the concept of general obligations erga omnes or obligations of a state towards the international community as a whole, as articulated in the obiter statement of the International Court of Justice (ICJ) in Barcelona Traction:

The ASR do not identify which primary obligations are obligations erga omnes or erga omnes partes under article 48, and there are differing views on what type of obligations are erga omnes partes or erga omnes owed to the international community as a whole.Footnote ²⁵ The lack of consensus surrounding the nature of erga omnes has led some to argue that the concept of erga omnes remains shrouded in uncertainty.Footnote ²⁶ That said, international courts and tribunals have explicitly recognized several examples of erga omnes obligations such as prohibitions against aggression, slavery, racial discrimination, genocide,Footnote ²⁷ the right to self-determinationFootnote ²⁸ and the rules of international humanitarian law embodying ‘elementary considerations of humanity’.Footnote ²⁹ At the same time, these courts and tribunals have not elucidated why these obligations should be considered erga omnes, meaning that the identification of such obligations remains opaque.Footnote ³⁰ For erga omnes partes obligations, the ASR cite examples such as the environment or security of a region and note that they are not limited to arrangements established only in the interests of member states but would extend to agreements established by a group of states in some wider common interest, transcending the sphere of bilateral relations of states parties.Footnote ³¹ The commentary does not elaborate on what was meant by collective interest except to say that the principal purpose would be to foster a ‘common interest, over and above any interests of the States concerned individually’.Footnote ³²

The question of the erga omnes status of norms has arisen in relation to ABNJ resources and/or the environment. For example, in the 2014 Whaling in the Antarctic case, Australia alleged that Japan had violated the International Convention for the Regulation of Whaling (ICRW) although it had not suffered any direct injury.Footnote ³³ The Court, without expressly saying so, ‘accepted the position that Australia had purported to act in the collective interest and on that basis engaged Japan’s responsibility for the breach of obligations erga omnes partes’.Footnote ³⁴ Similarly, the recognition that the preservation of the marine environment of the high seas was an obligation erga omnes partes was implicitly reaffirmed in the 2016 South China Sea Arbitration.Footnote ³⁵ The Philippines brought, inter alia, a claim against China for breaches of its environmental protection obligations under UNCLOS as a result of its island-building activities on features that were located both within the Philippines’ exclusive economic zone (EEZ) and in ABNJ.Footnote ³⁶ The Tribunal did not question that the Philippines had standing to mount claims under UNCLOS for environmental harm that occurred in ABNJ although erga omnes / erga omnes partes obligations were not raised in the pleadings or acknowledged by the Tribunal.Footnote ³⁷ The Tribunal found that Part XII obligations on marine environmental protection apply to all maritime areas, both within national jurisdiction and beyond.Footnote ³⁸

More explicitly, the Seabed Disputes Chamber (SDC) of the International Tribunal for the Law of the Sea (ITLOS) in its 2011 Advisory Opinion observed in the context of damage arising from activities in the Area, that ‘[e]ach State Party [to UNCLOS] may also be entitled to claim compensation in light of the erga omnes character of the obligations relating to the preservation of the environment of the high seas and in the Area’.Footnote ³⁹ It did not distinguish between erga omnes partes and erga omnes, although they specified that states parties were the only actors that could bring a claim on the basis of erga omnes, which suggests that obligations to protect the marine environment in UNCLOS are, at minimum, erga omnes partes applicable between UNCLOS parties.

There is accordingly a strong argument that the obligations in UNCLOS Part XII are obligations erga omnes partes that can be invoked by all UNCLOS states parties without having to demonstrate that they have been specially harmed by that breach.Footnote ⁴⁰ UNCLOS obligations on the protection of the marine environment can certainly be said to be established for the protection of collective interests of UNCLOS states parties.Footnote ⁴¹ Consistent with the ICJ’s finding on erga omnes partes in the Belgium v Senegal case and The Gambia v Myanmar case, many of Part XII’s marine environmental obligations can be said to be owed by any state party to all other UNCLOS states parties.Footnote ⁴² Article 192 provides that states have the obligation to protect and preserve the marine environment, which is an obligation owed (at the very minimum) to other UNCLOS states parties. As observed by the South China Sea award, Part XII obligations apply to states irrespective of where the alleged harmful activities take place.Footnote ⁴³ Moreover, it is salient that UNCLOS gives port states certain enforcement jurisdiction powers over vessel discharge violations that occur outside zones of national jurisdiction which have been said to be ‘complementary to and enhancing the erga omnes effect of general obligations’.Footnote ⁴⁴ Article 286, which triggers the jurisdiction of an UNCLOS court or tribunal, is drafted in general terms and only requires a dispute concerning the interpretation or application of UNCLOS ‘without requiring that the applicant should demonstrate a special interest’.Footnote ⁴⁵ In addition, also consistent with the Belgium v Senegal case and The Gambia v Myanmar case, all UNCLOS states parties have a common interest in compliance with the marine environmental obligations under UNCLOS, given the interrelated nature of the oceans, and the critical role that the oceans play in supporting a myriad of ecosystem services.

Notwithstanding the erga omnes partes nature of UNCLOS marine environmental obligations, there remains a lack of clarity on the implications of the designation of UNCLOS marine environmental obligations as erga omnes partes. Barcelona Traction only acknowledged that every state had a legal interest in the protection of erga omnes obligations but did not elaborate on the consequences of this legal interest including whether it amounted to a right of standing. For example, it has been contended that the simple identification of a category of collective interests does not necessarily confer a right of standing on states individually to invoke responsibility for that breach.Footnote ⁴⁶ However, this argument is undermined by ICJ jurisprudence in the Belgium v Senegal case, the Whaling in the Antarctic case and The Gambia v Myanmar case, where the ICJ has either explicitly or implicitly recognized a broad right of standing to enforce obligations erga omnes partes arising under multilateral treaties.Footnote ⁴⁷ For example, in its judgment on preliminary objections in The Gambia v Myanmar case, the ICJ concluded that due to the ‘common interest in compliance with the relevant obligations under the Genocide Convention’, any state party is entitled to invoke the responsibility of another state party for an alleged breach of its obligations erga omnes partes ‘regardless of whether a special interest can be demonstrated’.Footnote ⁴⁸ Moreover, the SDC has also stated that each UNCLOS state party was ‘entitled to claim compensation’ in the event of damage to the marine environment resulting from activities in the Area which presumes a sufficient legal interest to substantiate standing for such claims.Footnote ⁴⁹

Obligations erga omnes partes are unlikely to confer sufficient legal interest on states that are not parties to UNCLOS to ground a claim for environmental harm. While it has been suggested that peremptory norms of international law (jus cogens) establish obligations erga omnes, the breach of which concerns all states,Footnote ⁵⁰ environmental obligations have not as yet been recognized as non-derogable peremptory norms by the international community.Footnote ⁵¹ On the other hand, other scholars have said that ‘certain rules relating to common spaces, in particular common heritage regimes, may produce erga omnes obligations independent of whether they have peremptory status’Footnote ⁵² and that the scope of obligations erga omnes is wider than jus cogens.Footnote ⁵³ Another argument that may give some basis for non-states parties to UNCLOS to have standing to bring claims for environmental harm in ABNJ is grounded in the notion that the obligation to protect and preserve the marine environment in article 192 reflects a rule of customary international law and the environmental obligation under article 192 should be regarded as an obligation erga omnes.Footnote ⁵⁴ However, the ICJ has only so far affirmed a right of standing in respect of breaches of obligations erga omnes partes under multilateral treaties and this ‘cannot necessarily be taken to represent the endorsement of a broader right of standing also in respect of obligations erga omnes under customary international law’.Footnote ⁵⁵

Even accepting the characterization of the protection of the marine environment as an erga omnes partes obligation that gives rise to rights of standing, there remain several potential obstacles. First, questions arise as to the remedy available to a non-injured state that has standing to bring a claim for environmental harm in ABNJ. Under article 48 (2) of the ASR, a state entitled to invoke responsibility based on erga omnes or erga omnes partes obligations may claim from the responsible state (a) a cessation of the wrongful act and assurances and guarantees of non-repetition; and (b) performance of the obligation of the reparation in the interest of the injured state or of the beneficiaries of the obligation breached. The remedies for breaches of erga omnes obligations under article 48 are more limited than those available to an ‘injured state’ under article 42 (which include countermeasures). The availability of reparation for a non-injured state will usually depend upon ‘the circumstances of the breach, the extent to which the claimant’s interests are affected and the nature of the risk to community interests’.Footnote ⁵⁶ The ASR note that the non-injured state is not claiming compensation on its own account and that a claim must be made in the interest of the injured state, if any, or the beneficiaries of the obligation breached.Footnote ⁵⁷ It acknowledges that this aspect ‘involves a measure of progressive development, which is justified since it provides a means of protecting the community or collective interest at stake’,Footnote ⁵⁸ but that cases where the non-injured state is acting not on behalf of the injured state but on behalf of beneficiaries of the obligations presents greater difficulties which the ASR cannot resolve.Footnote ⁵⁹ For example, if a non-injured state claims compensation for environmental damage to a collective interest, how should this compensation be used? It would not be fair for the non-injured state to use compensation for its own purposes, resulting in a potential windfall gain. This highlights the utility of institutional mechanisms that enable such compensation to be directed into a fund whose purpose is to address environmental harm as is contemplated for both activities in the Area and activities in the Antarctic.Footnote ⁶⁰

Second, the characterization of an obligation as erga omnes partes is not sufficient to overcome jurisdictional rules of an international court or tribunal,Footnote ⁶¹ thus the state bringing the claim must have access to a particular court or tribunal to enforce claims for environmental harm in the global commons. Tanaka rightly observes ‘the availability of a procedure is key in effectuating obligations erga omnes’.Footnote ⁶²

Finally, it should be recognized that even if UNCLOS states parties are entitled to bring a claim for environmental harm, there may be disincentives for states to exercise this option. States appear to be more willing to engage in litigation when their individual interests are being impacted.Footnote ⁶³ Litigation proceedings can be costly; and may be perceived as too confrontational, risking damage in bilateral relations, particularly if the initiating state has not suffered direct injury and there is no guaranteed outcome. Decisions by governments to initiate proceedings before courts and tribunals ‘are influenced by a range of factors, including diplomatic, security and economic concerns; the applicable law; the operation of relevant international organizations; and the level of domestic public interest’.Footnote ⁶⁴ For example, civil society groups are said to have played a role in the decision by Australia to bring proceedings against Japan before the ICJ for the latter’s whaling activities, coupled with strong domestic political pressure.Footnote ⁶⁵ The initiation of The Gambia’s claim against Myanmar was reportedly driven by the Organisation of Islamic Cooperation (OIC), an intergovernmental organization.Footnote ⁶⁶ Having a right of standing does not automatically mean that states will exercise it.

6.2.1.2 International Organizations

There are a variety of international organizations that have mandates that cover areas or activities in ABNJ, for example, various regional fisheries management organizations (RFMOs), regional seas organizations and sectoral organizations, including the International Seabed Authority (ISA).Footnote ⁶⁷ It is conceivable that environmental harm in ABNJ could impact the interests of such international organizations and fall under their relevant mandate. In some cases, international organizations may in principle be better positioned than individual states to pursue a claim, where they have a broad mandate to take steps to protect the commons environment. For example, the windfall concern discussed in Section 6.2.1.1 where non-injured states claim compensation for environmental damage to a collective interest and questions on what can be done with that compensation, may be less problematic for international organizations. The question is whether they would have the capacity and recognized legal interests to bring claims against the responsible parties.

The question of capacity relates to whether the international organization has legal personality and legal capacity to bring claims. Capacity does not necessarily follow from legal personality since international organizations will have unique powers provided for in its constitutive instrument. Where there is no express authority to bring claims, the ability to bring a claim could be justified on the basis of the implied powers doctrine,Footnote ⁶⁸ subject to the caveat that careful attention must be paid to the purposes of the international organization.

The 2011 Draft Articles on the Responsibility of International Organizations (DARIO), (which largely mirror the ASR), affirm that an international organization could invoke the responsibility of another international organization if the obligation breached is owed to that international organization or the international community as a whole and that breach specially affects that international organization.Footnote ⁶⁹ Article 49 of the DARIO entitles

While the DARIO are confined to the right of a state or international organization to invoke the responsibility of another international organization, in principle, an international organization could also invoke the responsibility of a state, where the obligations are owed to the international organization. In the 1949 ICJ Advisory Opinion on Reparation for Injuries Suffered In the Service of the United Nations, the ICJ found that, although the United Nations Charter does not expressly confer upon the UN the capacity to include damage to the victim in its claim for reparation, the United Nations has the capacity to bring an international claim against a state (whether a member or non-member) for damage resulting from a breach by that state of its obligations towards the organization as well as to the victim on the basis of its implied powers necessary for the performance of its duties.Footnote ⁷¹ The commentary in the DARIO notes that legal writings have acknowledged the entitlement of international organizations to invoke responsibility in case of a breach of an obligation owed to the international community as a whole by a state but that practice is not very indicative. It goes on to say that ‘[w]hen international organizations respond to breaches committed by their members, they often act only on the basis of their respective rules’, and ‘it would be difficult to infer from this practice the existence of a general entitlement of international organizations to invoke responsibility’ of states.Footnote ⁷²

As a result, to determine whether an international organization has sufficient legal interest to bring claims for environmental harm to specific areas beyond national jurisdiction or resources that fall within their respective mandates, attention must be paid to the specific obligations owed to the international organization and its legal responsibilities. For example, article 137 UNCLOS specifies that the ISA shall act on behalf of ‘mankind as a whole’, while article 145 places specific obligations on the ISA to ensure effective protection for the marine environment. These provisions indicate that the ISA may have an express legal mandate to pursue certain forms of damage, including reparations for reinstatement.Footnote ⁷³ In addition, international organizations that seek compensation for environmental harm will also have to demonstrate how the loss accrues to its own interests, as opposed to those of its members. In this regard, an international organization may be better placed to ensure that any compensation received is used for collective benefit. While international organizations may have the right to mount such claims (subject to rules on access to international courts and tribunals discussed in Chapter 7), they may be unwilling to. Most international organizations are driven by the interests of their member states and any decision to bring a claim against its own member states or non-member states may be limited by procedural rules on decision-making, as well as the broader politics inherent in an international organization.

6.2.1.3 Non-state Actors

Non-state actors (which include corporate entities, non-governmental organizations and individuals), while not traditional subjects of international law, are increasingly playing a critical role in international law. They are, inter alia, often granted observer status in intergovernmental organizations, they are consulted during the formation of international regulations, they lobby governments and they serve as amici curiae in international litigation.Footnote ⁷⁴ In certain treaty regimes, some non-state actors are recognized as having international legal personality capable of asserting rights against states and international organizations, for example, in international human rights law and international investment law.Footnote ⁷⁵ This possibility is explicitly contemplated under article 33(2) of the ASR.Footnote ⁷⁶ Thus, it is certainly within the competence of states to confer limited international legal status on non-state actors – the most salient example in ABNJ being the ability conferred on contractors under Part XI of the UNCLOS to bring claims against the ISA under UNCLOS.Footnote ⁷⁷ Apart from certain treaty regimes, however, the ability of non-state actors to bring claims before international courts and tribunals is limited, particularly in connection with claims for environmental harm in ABNJ.

There is, of course, the possibility that states can espouse the claims of non-state actors. Thus, one avenue for claims against states or international organizations whose actions harm the interests of non-state actors in ABNJ – for example in fisheries related claims – is through espousal. There are examples of states espousing claims of non-state actors (including NGOs) although this has been confined to situations where these non-state actors had suffered direct losses.Footnote ⁷⁸

Undoubtedly, there are policy reasons to recognize the rights of standing of certain non-state actors. Payne observes that it would serve the interests of states to agree that civil society entities should be granted standing so as to ‘overcome the problem that although humanity may need the oceans to be protected, individual states may be constrained or merely uninterested in taking action’.Footnote ⁷⁹ One only has to look at the exponential growth in climate change and other environmental-related litigation in national courts, driven in part by frustration at legal and policy failures of governments coupled with recognition in some domestic jurisdictions of broad rights of standing of NGOs and public interest groups, to see that such actors can play a useful role in ‘representing’ the public interest of present and future generations.Footnote ⁸⁰ The shadow of possible litigation by non-state actors may provide a much-needed impetus to states and international organizations to take steps to ensure that environmental harm in ABNJ is prosecuted and compensated to the extent possible. When victims cannot be identified because damage is to the environment per se in ABNJ (for example), NGOs could bring claims for such environmental harm, overcoming the issue of the lack of an ‘injured party’ and increasing the possibility that damage is compensated. Indeed, the issue of standing for NGOs has been part of the rationale for calls for the establishment of a specialized international court for the environment discussed further in Chapter 7.

At the same time, questions inevitably arise as to which non-state actors, particularly NGOs, may be entitled to represent the interests of the international community (particularly when that term itself is one that is contested).Footnote ⁸¹ There would need to be rules in place to ensure that such litigation is genuine and not vexatious and that it does not slow down the administration of claims as has been seen in certain national jurisdictions where broad rights of standing have led to ‘immobility and inefficiency in administration as well as the clogging of cases before courts’.Footnote ⁸² In addition, any rules providing standing in such cases would need to address the uses to which any monetary compensation might be put in order to avoid concerns relating to ‘windfall’ compensation identified above.

6.3.1.1 States

Any attempt to bring a claim for environmental harm in the Antarctic Treaty area by the seven states (Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom) that have made claims to the Antarctic continent, including maritime claims, may face objections on the basis that these claims have not been accepted by the international community and are held in abeyance by the 1959 Antarctic Treaty.Footnote ¹²² In the Whaling in the Antarctic case, even though Australia acknowledged that some of Japan’s whaling activities fell in waters over which Australia claims sovereign rights and jurisdiction, it maintained that it brought the claim under the 1946 International Convention for the Regulation of Whaling in order to ‘uphold its collective interest, an interest it shares with all other parties’.Footnote ¹²³ Australia deliberately avoided any mention of its Antarctic Treaty claim. These states may feel that to assert a claim may have political consequences or be a de facto breach of ‘sovereign neutrality’ in article IV of the Antarctic Treaty.Footnote ¹²⁴

A stronger claim as an injured state may be made by the Antarctic Treaty Consultative Parties (ATCPs), whose activities are directly impacted by environmental harm.Footnote ¹²⁵ For example, were an incident to adversely affect a state’s tourism or research activities in the Antarctic, these interests would be sufficient to support standing to make a claim against the responsible state or private actor. As the obligations are owed to a group of states, the argument here is that they are specially affected by the environmental harm in question.Footnote ¹²⁶ A further possibility would include claims for damage that arise where a state undertakes response measures. Such a claim is supported by article 15 of the 1991 Antarctic Protocol, where each state party has agreed to respond to environmental emergencies in the Antarctic Treaty Area by providing for prompt and effective response action to such emergencies, even if they or their operators did not cause it. It is anticipated that these types of claims will be addressed through the Liability Annex, discussed below, but claims can still be made outside the procedures under the Liability Annex. It should be noted, however, that at the Final Act of the Eleventh Antarctic Treaty Special Consultative Meeting where the 1991 Antarctic Protocol was adopted, the ATCPs agreed that the arbitral tribunal established under the Protocol would not make determinations on damages relating to liability arising from activities taking place in the Antarctic Treaty area until a binding legal regime had entered into force through an Annex pursuant to article 16 of the 1991 Antarctic Protocol (while the Liability Annex has been concluded, it has not entered into force yet).Footnote ¹²⁷

The more complex question is whether parties to the 1959 Antarctic Treaty and 1991 Antarctic Protocol can bring a claim for environmental harm based on erga omnes partes even if they have not suffered harm directly. The obligations under the 1959 Antarctic Treaty and 1991 Antarctic Protocol clearly meet the characteristics of obligations erga omnes partes set out in the ASR of ‘agreements established by a group of states in some wider common interest and which transcend the sphere of bilateral relations of States parties’.Footnote ¹²⁸ Both the 1959 Antarctic Treaty and 1991 Antarctic Protocol have been established to ‘foster a common interest, over and above any interests of the States concerned individually’.Footnote ¹²⁹ Both instruments recognize the need to protect Antarctica in the interest of mankind as a whole, and article 15 of the Antarctic Protocol requires each party to respond to environmental emergencies even if their operators did not cause it.Footnote ¹³⁰ The challenges in relying on erga omnes partes outlined in Section 6.2.1.1 would apply equally to environmental harm claims in Antarctica, including overcoming the limitations in remedies and concerns about windfall gains in the absence of a fund or other mechanism.

The Liability Annex, which is not in force, addresses liability only arising from environmental emergencies.Footnote ¹³¹ It requires both state operators and non-state operators to take prompt and effective response action to environmental emergencies arising from the activities of that operator and allows other states parties to step in if the state and non-state operator fail to take action, provided certain conditions are met, including notification to the party of the operator and the Antarctic Secretariat that such response action will be undertaken.Footnote ¹³² The Liability Annex addresses a number of ambiguities surrounding who may bring claims and under what conditions.

There is a distinction between which parties have standing to bring claims depending on the status of the actor that is responsible for the environmental emergency. If the state operator fails to take such response action, it is either strictly liable to the state party that did take the response action under article 6 (1) of the Liability Annex (‘liability for reimbursement costs’), or if no other party took action, the state operator is strictly liable to pay the costs of the response action into a fund established under the Liability Annex under article 6 (2) (‘liability for payment of costs of response action into fund’).Footnote ¹³³ The determination of liability of the state for reimbursement costs to another state party for response action undertaken by it is decided by state-to state dispute settlement mechanisms including any enquiry procedures and the dispute settlement procedures provided for in articles 18, 19 and 20 of the 1991 Antarctic Protocol. The only actors which have ‘standing’ in this regard are other states parties who have incurred costs, consistent with traditional understandings of standing being based on the ‘injured party’.

Regarding liability of state operators for payment of the costs of response action into the fund, the identification of the state which has the requisite standing to initiate proceedings is less straightforward. There is no injured state per se and 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 ¹³⁴ Therefore, rather than identifying the state who could invoke dispute settlement procedures, the Liability Annex leaves the settlement of disputes to the Antarctic Treaty Consultative Meeting (ATCMs).Footnote ¹³⁵ 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 ¹³⁶ Given the voting rules of the ATCM, there is the possibility that an ATCP can block a decision related to its own liability.Footnote ¹³⁷ However, if a dispute remains unresolved, the dispute can go to the dispute settlement mechanism in articles 18, 19 and 20 of the 1991 Antarctic Protocol, although the Liability Annex still does not identify which state would have standing to invoke the dispute settlement mechanism.Footnote ¹³⁸

Regarding claims against 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 action into the fund. With regard to liability for reimbursement costs, the only actor that can bring a claim against the non-state operator is the state party which has taken response action.Footnote ¹³⁹ The forum where such action could be taken was subject to debate and ultimately, two options were given.Footnote ¹⁴⁰ First, a state party can bring an action in the country where the non-state operator is incorporated or has its principal place of business or his habitual place of residence.Footnote ¹⁴¹ Second, if this fails, then states parties can bring an action in the courts of the state party that authorized the activity.Footnote ¹⁴²

With regard to actions for payment of the costs of response actions into the fund, it was also not immediately clear which actor would be the plaintiff to bring a claim and therefore the issue of standing is not explicitly addressed.Footnote ¹⁴³ Instead, states parties only have an obligation to ensure that there is a domestic law mechanism that exists for the enforcement of the liability of the non-state operator to ensure that it pays the costs of response actions into the fund (either directly or via the party of the non-state operator).Footnote ¹⁴⁴ It leaves it to the domestic mechanism to determine which actor has standing, but appears to imply that only states parties would be able to bring claims.Footnote ¹⁴⁵ To avoid the issue of multiplicity of proceedings, a consultation process was included which obliged states parties to consult amongst themselves as to which party should take enforcement action.Footnote ¹⁴⁶

6.3.1.2 International Organizations

Institutional governance under the 1959 Antarctic Treaty System is carried out primarily through the ATCPs via the ATCMs.Footnote ¹⁴⁷ The ATCM is a treaty body with responsibilities to define the general policy for the comprehensive protection of the Antarctic environment and dependent and associated ecosystems under the 1991 Antarctic Protocol.Footnote ¹⁴⁸ While the ATCM clearly has a strong mandate to protect and preserve the environment of Antarctica, including ensuring that environmental harm is addressed, it lacks international legal personality to make legal claims. The ATCM would not fall within the definition of an international organization under the DARIO,Footnote ¹⁴⁹ and there is nothing in either the 1959 Antarctic Treaty or the 1991 Antarctic Protocol that suggests the parties intended the ATCM to be able to bring claims on behalf of the parties. For example, the dispute settlement procedures in the 1959 Antarctic Treaty and 1991 Antarctic Protocol are confined to states parties to these instruments and the ATCM has no role in deciding officially whether or not claims are brought pursuant to these instruments.Footnote ¹⁵⁰ The Committee on Environmental Protection, (established under the 1991 Antarctic Protocol) provides recommendations to the ATCM on the implementation of the Protocol and has a range of functions related to the protection of the environment but is similarly constrained.Footnote ¹⁵¹ Thus, neither the ATCM nor the Committee on Environmental Protection would be able to initiate claims for environmental harm suffered in the Antarctic Treaty Area.

The only institutional body with legal personality and legal capacity is the Commission on the Conservation of Antarctic Marine Living Resources (CCAMLR Commission), an international organization created under the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), whose mandate includes ‘prevention of changes or minimization of the risk of changes in the marine ecosystem which are not potentially reversible’.Footnote ¹⁵² Its legal capacity is limited to actions ‘as may be necessary to perform its function and achieve the purposes of the Convention’.Footnote ¹⁵³ However, the functions of the Commission are administrative and do not disclose any explicit or implied powers to pursue claims on behalf of the parties nor does it have the authority to respond directly to environmental incidents.Footnote ¹⁵⁴ Dispute settlement procedures in CCAMLR are confined to states parties and based on consent of both parties, limiting the ability of the CCAMLR Commission to bring claims for environmental harm.

Regarding the Liability Annex, as mentioned in Section 6.3.1.1, while the ATCM is not empowered to initiate claims against state or non-state operators for liability relating to environmental emergencies, it does have a role to play in relation to the liability of state operators for payment of the costs of the response action into the fund. 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 ¹⁵⁵ and while an ATCP can block a decision related to its own liability,Footnote ¹⁵⁶ unresolved disputes will be subject to the dispute settlement mechanism in articles 18, 19 and 20 of the 1991 Antarctic Protocol.Footnote ¹⁵⁷

6.3.1.3 Non-state Actors

Non-state actors (including non-state operators or NGOs) are not conferred explicit rights of standing under the 1991 Antarctic Protocol or the Liability Annex to bring claims either for direct harm/losses they have suffered or for environmental harm. While the Liability Annex envisages that there is a mechanism in place under the domestic law of the party for the enforcement of the liability of non-state operators for the costs of response action that they failed to take, it appears that only states are entitled to bring claims against non-state operators.Footnote ¹⁵⁸

6.3.2.1 The ISA

Unlike the ATCM, the ISA has international legal personality and ‘such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes’.Footnote ¹⁶⁰ The ISA has extensive explicit powers to administer the resources of the Area, as well as implied powers that are necessary for the ISA to carry out its functions.Footnote ¹⁶¹ Express powers include the ability of the ISA Council to initiate proceedings on behalf of the ISA.Footnote ¹⁶²

The SDC identified the source of the ISA’s standing as article 137(2) of UNCLOS, which provides that ‘all rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act’. This provision, which is unique in international law, establishes the res communis nature of the resources of the Area, and vests those rights in ‘mankind as a whole’. The term ‘vests’ has a proprietary connotation, and the structure of the provision creates a trust-like relationship. The legal interest created in article 137 is not unlike the parens patriae powers of a state, whereby the state has the authority to represent the communal interests of its citizenry. The shared nature of common heritage resources necessitates that there is some entity to protect the interests of the beneficiaries. Article 137 identifies the ISA as that entity. What article 137(2) does not specify is whether this provision would entitle the ISA to claim compensation for damage to common heritage of humankind (CHH) resources (i.e. polymetallic nodules, polymetallic sulphides and cobalt-rich crusts or CHH resources) or damage to the marine environment or both.

A narrow interpretation is that article 137 (2) would only be the legal basis for the ISA claiming for damage to CHH resources. This reading reflects the specific reference to the ‘resources’ of the Area in article 137, which are defined as the in situ mineral resources of the seabed. In other words, the right of standing should be restricted to the shared resources. The SDC appears to differentiate between damage to ‘the common heritage of mankind’ and ‘damage to the marine environment’. Moreover, the marine environment in ABNJ is not subject to the common heritage of humankind principle.Footnote ¹⁶³

On the other hand, it is not clear whether compensable damage to CHH resources and compensable damage to the marine environment can be meaningfully separated.Footnote ¹⁶⁴ The obligation to protect the marine environment in article 145 also includes ‘natural resources of the Area’. Damage to the marine environment may result in damage to the resources subject to the CHH principle and vice versa. It therefore may be difficult to separate compensable damage to the marine environment from damage to CHH resources. It would be conceivable for the ISA to rely on article 137 (2) of UNCLOS to bring a claim for damage to CHH resources which may arguably be easier to quantify, and which would still result in compensation for damage to the marine environment.Footnote ¹⁶⁵ In addition, UNCLOS states that ‘the Area and its resources are the common heritage of mankind (emphasis added)’,Footnote ¹⁶⁶ which would at least encompass the marine environment of the seabed. The broad definition of marine environment in the Exploration Regulations and current Draft Exploitation Regulations (DER) would encompass CHH resources.Footnote ¹⁶⁷

The basis of the ISA’s standing to bring claims for environmental damage should not be restricted to article 137(2), but rather ought to be understood in light of the other provisions addressing the role and functions of the ISA. A further foundation for the ISA’s standing to bring claims for damage to the marine environment is its obligations relating to the protection of the marine environment, particularly article 145 which provides:

This provision ‘assigns the primary responsibility for preventing environmental harm resulting from mining activities in the Area to the ISA’ and affords the ISA ‘a general and far-reaching environmental mandate’.Footnote ¹⁶⁸ A purposive interpretation of article 145 is that an essential component of the ISA’s obligation to protect and preserve the marine environment is its ability to initiate claims against actors that have caused environmental harm arising from activities in the Area. This entitlement is essential to deter wrongful activities and incentivize greater care by the relevant actors. Further, UNCLOS recognizes that the ISA ‘shall have the right to take at any time any measures provided for under [Part XI] to ensure compliance with its provisions and the exercise of the functions of control and regulation assigned to it thereunder or under any contract’.Footnote ¹⁶⁹ This, read together with the ISA’s incidental powers that are necessary for the exercise of those powers and functions with respect to activities in the Area, suggests that the ISA has the legal authority to initiate proceedings for harm to the marine environment as part of its measures to ensure compliance with the provisions on the protection of the marine environment.Footnote ¹⁷⁰

It is also relevant that under the Exploration Regulations, the Council has the authority to issue measures in response to an emergency (on the recommendation of the Council) and if the Contractor fails to comply with these measures, the Council shall take by itself or through arrangements with others on its behalf, such practical measures necessary to prevent harm to the marine environment.Footnote ¹⁷¹

The ISA does not face barriers relating to access to courts and tribunals – it has access to the dispute settlement mechanisms under section 5 of Part XI of UNCLOS, although its access to domestic courts will depend on the relevant national procedures.Footnote ¹⁷² The issue of what to do with any compensation that is received from legal proceedings is also surmountable in that the SDC in its 2011 Advisory Opinion recommended the establishment of a trust fund and this is envisaged in the current DER which contain provisions on the establishment of the Environmental Compensation Fund (see discussion in Chapter 8).Footnote ¹⁷³ Any compensation received by the ISA can be directed to this fund. The DER state that one of the sources of the Fund will consist of amounts recovered by the ISA as a result of legal proceedings in respect of a violation of the exploitation contract.Footnote ¹⁷⁴

While the ISA would seem the most logical actor to initiate proceedings given its mandate to organize, carry out and control ‘activities on the Area’ on behalf of humankind, there is no guarantee that it will do so. It is conceivable that the Legal and Technical Commission (LTC) could recommend not initiating proceedings and/or the Council could veto a decision to institute proceedings for a claim for damage to the marine environment before the SDC,Footnote ¹⁷⁵ leading to a situation where damage remains uncompensated. Under UNCLOS, the decision to initiate proceedings requires a consensus in the Council at first, failing which a decision shall be taken by a two-thirds majority of members present and voting, provided that such decisions are not opposed by a majority in any of the voting chambers.Footnote ¹⁷⁶ This potentially means that states with a direct interest in mining or states with an interest in revenue-sharing can potentially block a decision, even if it is contrary to the benefit of humankind.Footnote ¹⁷⁷ Another issue is that the ISA itself may also be responsible for damage to the marine environment, or there may be multiple parties responsible for the environmental harm. If the ISA engaged in wrongful acts that contributed to damage to the marine environment, it may have fewer incentives to pursue claims against other responsible parties.

6.3.2.2 States

The standing of states in relation to deep seabed mining will depend upon the nature of the harm suffered. Most straightforwardly, there will be states whose economics interests are affected by environmental harm from deep seabed mining. This could take a number of forms, such as interference with a state’s direct interest in deep seabed mining or other established resource rights, such as fisheries, as well as a sponsoring state who has sponsored a contractor which has had to stop activities and/or suffered damage to CHH resources in their contract area as a result of another contractor’s activities and has resultantly lost a potential stream of revenue. As observed by the SDC, coastal states would also be entitled to bring claims for damage to the marine environment, presumably on the basis that coastal states have suffered damage to the marine environment in areas under national jurisdiction (for example, in the EEZ or continental shelf).Footnote ¹⁷⁸ While the coastal state has sufficient legal interest to bring a claim as it has sustained direct injury, it only has access to the SDC for claims against the sponsoring State,Footnote ¹⁷⁹ the ISAFootnote ¹⁸⁰ and state contractors,Footnote ¹⁸¹ but not against non-state contractors and their ability to bring proceedings against any of these actors in national courts will depend on the applicable procedures of the relevant national court.Footnote ¹⁸²

The ability of states to recover for restoration of environmental resources in ABNJ is less certain. Unlike the Antarctic Liability Annex, there is no clear authority for states to unilaterally undertake restoration actions and recover from the responsible party. In these instances, states would need to argue that they are acting under a general obligation to protect the environment as found in Part XII of UNCLOS,Footnote ¹⁸³ and by incurring restoration costs are specially affected. However, these states would still need to overcome the obstacles associated with differentiating between officious and necessitous interventions.Footnote ¹⁸⁴ In the case of deep seabed mining, this question is further complicated by the presence of the ISA, which has the ability (and possibly obligation) to make emergency orders, in the face of environmental incidents, which undermines the argument that a unilateral clean-up by a state is necessary.

As indicated by the SDC, the alternative basis for standing lies in the doctrine of erga omnes obligations.Footnote ¹⁸⁵ The SDC does not elaborate on its reasoning, but as noted, the erga omnes nature of obligations to protect the marine environment is supported (albeit implicitly) in the Whaling in the Antarctic case and South China Sea Arbitration.Footnote ¹⁸⁶ There remains a windfall gain problem, which suggests that a litigant should not be able to keep the compensation for its own uses and it is even questionable whether that state party should have full discretion on what to do with the funds. A potential solution would be a fund mechanism (as is the case under the Antarctic Liability Annex) that is collectively managed for the benefit of the affected environment. Claims based on erga omnes obligations would be limited to claims against other states, as the obligations flow from common membership in the UNCLOS.

Finally, non-states parties to UNCLOS, which could include other users of the sea or coastal states as identified by the SDC above, may also suffer direct losses arising from damage to the marine environment as a result of activities in the Area (for example, the costs of reasonable preventive or response measures), but non-parties will not have any access to UNCLOS dispute settlement. Their ability to bring proceedings against any of these actors in national courts will depend on the applicable procedures of the relevant national court.Footnote ¹⁸⁷

6.3.2.3 Non-state Actors (Including Contractors)

It is possible that contractors may incur direct costs because of an incident (which can be attributable to another contractor, sponsoring state or the ISA) and which can be classified as harm to the marine environment, for example, the costs of reasonable response or preventive measures or the cost of assessing the damage. Contractors may also suffer damage to CHH resources which fall within their contract area. To the extent that the contractor has suffered direct injury, it will have sufficient legal interest against the ISA and the sponsoring state based on its contractual rights to exploit seabed resources (and access to the dispute settlement procedures in section 5 of Part XI of UNCLOS). Other non-state actors operating in the Area (including other users of the sea) may also incur direct losses because of activities in the Area, but have no access to dispute settlement procedures in section 5 of Part XI of UNCLOS. While recognition of the specific interests in question will then be a matter for the domestic courts, there is no principled barrier to domestic courts to recognizing legal interests (such as rights to exploit marine living resources) that relate to ABNJ.Footnote ¹⁸⁸

A thornier question, in the context of activities in the Area, is whether non-state actors including international organizations and non-governmental organizations have standing to bring claims for environmental harm when they have not suffered direct damage. It is a complex question because the ‘Area and its resources are the common heritage of mankind’ and governance of the exploration and exploitation of CHH resources are carried out for the benefit of mankind as a whole.Footnote ¹⁸⁹ While it has been argued that humankind has emerged as a subject of international law given its frequent invocation in various fields,Footnote ¹⁹⁰ there is still considerable debate on its parameters.Footnote ¹⁹¹ During the negotiations of Part XI of UNCLOS, there were some attempts to confine the concept of ‘mankind’ to just states parties but this did not get strong support and was considered to be contrary to the 1970 Declaration of Principles.Footnote ¹⁹² It has also been held by the ICJ that ‘mankind necessarily entails both present and future generations’.Footnote ¹⁹³ It is clear that humankind extends beyond states. In recognition of this, the DER have defined ‘stakeholder’ as ‘a natural or juristic person or an association of persons with an interest of any kind in, or who may be affected by, the proposed or existing Exploitation Activities under a Plan of Work in the Area, or who has relevant information or expertise’.Footnote ¹⁹⁴ The ISA recognizes that these ‘stakeholders’ have an interest in the administration of the CHH and are, at the very least, entitled to participate in the policy making of the ISA.Footnote ¹⁹⁵

Do such non-state actors have sufficient legal interest to bring claims for environmental harm in ABNJ from activities in the Area considering the harm done to collective interests? An argument could be made that such NGOs or equivalent bodies have standing given the intrinsic relationship between CHH resources and the marine environment (the preservation for future generations is said to be an essential component of the CHH principle) and the protection of the marine environment from activities in the Area is also for the benefit of the collective interests of humankind.Footnote ¹⁹⁶ Recognition of the rights of NGOs in domestic courts to represent public interests are statutory creations, but the competence of a state to extend standing to areas outside of its territory is doubtful. In addition, there may be questions of the basis and legitimacy of a claim by an NGO to represent the interests of humankind as a whole.Footnote ¹⁹⁷