The Advisory Opinion was requested by the Council of the International Seabed Authority to determine the scope of responsibility and liability of States and State-sponsored entities undertaking excavations and mining activities in the “Area”—a zone established by the United Nations Convention on the Law of the Sea as the seabed, ocean floor, and subsoil.
Several countries have commenced prospecting and exploration of resources of the Area. The International Seabed Authority regulates these activities and protects the marine environment. In 2009, concerns were raised regarding the responsibility and liability of the various stakeholders, resulting in a proposal to the Council to request the advisory opinion on these issues.
The Council posed the following questions:
1. What are the legal responsibilities and obligations of States Parties to the Convention with respect to the sponsorship of activities in the Area in accordance with the Convention?
2. What is the extent of liability of a State Party for any failure to comply with the provisions of the Convention by an entity whom it has sponsored?
3. What are the necessary and appropriate measures that a sponsoring State must take in order to fulfill its responsibility under the Convention?
The Chamber concluded that States have a duty of due diligence, which requires them to effectively regulate sponsored entities, and a direct duty to fulfill their Convention-specific obligations. A State is not, however, automatically liable for damage caused by a sponsored entity’s failure to comply with its obligations. Liability may arise if the State failed to “carry out its responsibilities under the Convention” and this failure then led to damage.