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Due Diligence and the High Seas

Due Diligence and the High Seas
Product ISBN: 9781032061450
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There has been a rapid growth of interest in due diligence, especially in the fields of environmental law and the law of the sea. Yet, confusion seems to surround this notion. Is due diligence a principle, a rule, a standard or something else? This book firstly explores thoroughly the concept of due diligence, its purpose and its mechanisms in order to propose a comprehensive theory of due diligence in harmony with the general law of State responsibility.

In the meantime, this book also explores the usefulness of due diligence to address modern challenges afflicting the high seas. Indeed, while the application of due diligence in transboundary contexts is well illustrated by jurisprudence, its applicability in areas beyond national jurisdiction remains unclear. Yet, a proper usage of this concept may be crucial for the protection of the high seas, as it allows for the intervention of international standards in this fragile area. Hopefully, the concept of due diligence can help compensate the insufficiencies of the United Nations Convention on the Law of the Sea concerning the high seas.

Examining in detail the theory of due diligence, this book will interest international lawyers concerned with this notion. It also offers a new perspective on the UNCLOS through the prism of due diligence and will interest lawyers dealing with the protection of the marine environment and fisheries.

table of content

A Rediscovered Concept
A "Constitution for the Ocean in Search of Content
Due Diligence: A Bridge Between Instruments and Actors
Outline of the Thesis
Chapter I: The Development of the General Theory of Due Diligence
Section 1: The Early Development and Evolution of the Concept of Due Diligence: From Early Theories to the ILC Codification
The Theoretical Roots of Due Diligence: The State’s Responsibility for Acts of Private Actors
The Early Judicial Practice on Due Diligence
Section 2: The Work of the International Law Commission
The Work of the ILC on State Responsibility
The Work of the ILC on State Liability
Chapter II: The Contemporary Conception of Due Diligence: Clarifications and Constitutive Elements
Section 1: The No-Harm Rule Confusion
The Tale of the Trail Smelter Arbitration
The Corfu Channel Overinterpretation
Section 2: Due Diligence: A Label of International Obligations
Due Diligence: The General Aspects
Due Diligence: Specificities of Environmental Law
Section 3: The Definition of Due Diligence and its Potential for the High Seas
Working Definition of Due Diligence
The Utility of Due Diligence on the High Seas
Chapter III: The Viability of Due Diligence on the High Seas
Section 1: Legal Basis of Due Diligence Obligations on the High Seas
The UNCLOS: A Primordial Framework
The Compliance Agreement: Reinforcement of Effective Control
The FSA: A Primary Tool for International Cooperation
The Guidelines on Deep-Sea Fisheries
The FAO Code of Conduct for Responsible Fisheries and the IPOA-IUU
The Voluntary Guidelines for Flag State Performance: Filling the "Inability" Gap
Conclusion: The Internal and External Interplay of the UNCLOS
Section 2: Due Diligence Obligations and Control on the High Seas
Due Diligence and State-Owned Vessels
Due Diligence and Private Vessels
Conclusions on the Role of the Genuine Link
Chapter IV: Defining Due Diligence: From Interpretation to Law-Making
Section 1: Due Diligence as an Informing Process
From Interpretation to Law-Making
The Critical Role of the Judge in the Determination of Diligence
Section 2: Shaping the UNCLOS for Modern Challenges
Informing the UNCLOS Through Due Diligence
Gaps and Limits of Due Diligence