On 10 November 1988, the oil tanker Odyssey broke apart in the North Atlantic 700 miles off the Canadian coast. With 132,000 tons of crude oil released into the marine environment, it was one of the largest oil spills to have ever occurred. However, because it occurred in the high seas and did not reach the shores of any state, no response actions were taken, even though marine environmental harm almost certainly occurred. The pollution did not trigger the same sort of response as an oil spill in maritime areas under sovereignty (such as territorial waters) or under national jurisdiction (such as Exclusive Economic Zones) because the harm itself was to the environment per se as opposed to impacting the economic interests of a particular state or private actor. Even if the consequent environmental harm was quantifiable and compensable, it is not clear what legal entities would have the right to recover for the loss suffered. This is a function of the nature of the high seas as a “global commons” area or an area beyond national jurisdiction (ABNJ), where no state has jurisdiction and where harm is suffered by all states and arguably by all humankind, given the interconnected nature of the oceans and the variety of ecosystem services it provides.
In a co-authored book by Neil Craik, Ruth Mackenzie and myself, Liability for Environmental Harm to Global Commons (Cambridge University Press 2023), we explore the theoretical and practical underpinnings of liability and compensation regimes for environmental harm in ABNJ. Generally, the legal rules governing liability for environmental harm in ABNJ have often been bracketed or placed outside the boundaries of the more well-understood terrain of state liability for transboundary environmental harm or civil liability. While international law has called upon states to further develop international rules on liability and compensation for adverse effects of environmental harm, including to ABNJ (see, for example, Principle 13 of the 1992 Rio Declaration on Environment and Development and Article 235 of the 1982 UN Convention on the Law of the Sea [UNCLOS]), development of liability rules addressing environmental harm in ABNJ has been addressed in a piecemeal fashion and remains unfinished business.
In our book, we explore a distinct set of legal questions that arise in devising liability and compensation regimes in ABNJ. This includes who has standing to claim environmental harms in global commons ecosystems; how should questions of causation and liability be addressed where harm arises from a variety of activities by state and non-state actors; what kinds of harm should be compensable in global commons ecosystems, which are remote and characterized by high levels of scientific uncertainty and how can practical concerns such as ensuring adequate funds for compensation be resolved. Our research is especially salient considering the expanding pressures on the marine environment in ABNJ resulting from the increased intensity of ongoing economic activities in ABNJ, the emergence of new environmental risks from novel activities such as deep seabed mining and marine geo-engineering. Such pressures are exacerbated by the cumulative harm already caused to the marine environment, including by overfishing, pollution from shipping and marine debris, and compounded by climate change and widespread biodiversity loss.
The approach of our book differs from existing literature on liability for environmental harm in ABNJ which typically focuses on either the subjects of liability regimes (states or private actors) or examines liability on a sector-specific basis. We are primarily interested in the unique legal issues associated with providing a system of compensation for environmental harm to globally shared resources and ecosystems. For this reason, we have structured our analysis around central themes that liability rules and processes need to address to comprehensively compensate environmental harm: the definition and valuation of environmental harm; the allocation of liability; the standards of liability; standing to bring claims; access to remedies; and insurance and compensation funds. We analyse how general international law and domestic systems address the issues that arise under each theme, and then move on to how to these issues have been developed in the context of specific global commons areas, such as the deep seabed, the Antarctic, and the high seas.
Ultimately, our book argues that there have been legal advances and innovations in approaches to liability for environmental harm in ABNJ which provide important building blocks for prospective liability and compensation regimes. This includes the recognition in 2018 by the International Court of Justice that ‘compensation is due for damage caused to the environment, in and of itself, in addition to expenses incurred by an injured State as a consequence of such damage’ and the confirmation that states have standing to bring claims for breaches of erga omnes obligations that result in damage to collective interests, even though they have not been directly injured.
However, despite these positive developments, the most significant challenge to overcome is the tension between the environmental risks that many activities affecting ABNJ pose, which are long-term, cumulative, and uncertain, and the feasibility of applying liability rules which require immediacy, clear attribution and predictability. Liability rules concern individualised responsibility whereas harm to ABNJ areas is collective in nature. Fundamentally, the nature of rights in ABNJ requires the creation of a collective body to act on behalf of shared environmental interests. States are imperfect guardians of the global commons as they benefit from risk-based activities under their jurisdiction and must weigh the costs of such actions in the context of broader state interdependencies. This underscores the importance of institutions with the requisite mandate and administrative powers to bring such claims, although we acknowledge that there appears to be limited appetite on the part of states to create institutions to take such actions in ABNJ.
We also emphasize the potential utility of trust funds or related trust-like structures which can serve as a collective basis for compensation towards environmental restoration in ABNJ, and which in principle should allow for collective decision-making. While liability is only one component of effective protection of the marine environment in ABNJ, it continues to be a missing piece of the puzzle that warrants further examination especially in light of our evolving understanding of the impacts of human activities in remote areas of the planet.
Keywords: Environmental harm, compensation, areas beyond national jurisdiction, liability
AUTHOR INFORMATION
Dr. Tara Davenport is Deputy Director of the Asia-Pacific Centre for Environmental Law, an Assistant Professor at the Faculty of Law, National University of Singapore (NUS) and Co-Head of Ocean Law and Policy Programme at the Centre for International Law (CIL) at NUS.
Email: lawtmd@nus.edu.sg