Invoking responsibility for environmental injury in the Arctic Ocean

As the Arctic Ocean opens up to industrial development, the duties of States to protect the North’s vulnerable ecosystems become increasingly important. However, in the event that a State governing hydrocarbon operations in the Arctic Ocean does not exercise due diligence, it is far from clear which States, if any, can invoke responsibility and seek appropriate remedies. In the 2001 Articles on State Responsibility, the International Law Commission entrenched a dichotomy between injured States and other States: a State cannot be considered to have a relevant legal interest on the simple basis that another State has violated a norm to which both are party. States which are not directly affected by a violation can only invoke responsibility for limited categories of norms: obligations erga omnes and obligations erga omnes partes. Under the Convention on the Law of the Sea as well as in light of customary law, States have obligations to protect all of the marine environment, not just those maritime zones under the jurisdiction of other States. This includes a duty to protect the environment of the State’s own EEZ as well as the EEZ of other States and the High Seas. However, hydrocarbon developments in the Arctic Ocean can potentially violate these norms without creating an injured State. In the absence of an injured States, the question arises as to who might invoke responsibility for such wrongful conduct. In other words, are the norms at stake erga omnes or erga omnes partes? This paper will focus on this gap in the knowledge by setting out the criteria for a norm to have the status erga omnes or erga omnes partes and will argue that recent developments in international law indicate that norms to protect the marine environment have this character.