심해저활동과 관련한 보증국의 의무와 책임에 대한 국제해양법재판소의 권고적 의견

On 1 February 2011, the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (“ITLOS”) unanimously adopted a historic Advisory Opinion. The Advisory Opinion was about three questions regarding the responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area. First, a sponsoring State has an obligation to ensure that a sponsored contractor complies with the rules set out in the Law of the Sea Convention (1982) and related instruments. The sponsoring State’s obligation to ensure is an obligation of conduct and not of result, and an obligation of due diligence. The sponsoring State has also direct obligations independently of its due diligence obligation to ensure. These obligations include, inter alia, the obligation to apply a precautionary approach, the obligation to apply best environmental practices and the obligation to conduct environmental impact assessments. They can also be seen as a relevant factor in meeting the due diligence obligation to ensure and thus the Chamber suggested the constituent elements of the obligation of due diligence. Second, since the sponsoring State’s liability arises only from its failure to meet its obligation of due diligence, liability is fault-based, rather than strict. A gap in liability, therefore, may occur but the liability regime established by the Convention and in related instruments leaves no room for residual liability of the sponsoring State. Nevertheless, the Chamber recognized the need for a trust fund to compensate for the damage not covered. Third, the sponsoring State must adopt laws and regulations and take administrative measures within its legal system to fulfill its responsibility under the Convention. The laws and regulations, and administrative measures must be reasonably appropriate for securing compliance by persons under the jurisdiction of the sponsoring State. Through this Advisory Opinion did the Chamber confirm and clarify the nature or scope of relevant international legal norms or concepts, and suggested a pathway for the development of international environmental law.