Due Diligence and the High Seas

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

Introduction

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

Introduction

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

Conclusion

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

Conclusion

Chapter II: The Contemporary Conception of Due Diligence: Clarifications and Constitutive Elements

Introduction

Section 1: The No-Harm Rule Confusion

The Tale of the Trail Smelter Arbitration

The Corfu Channel Overinterpretation

Conclusion

Section 2: Due Diligence: A Label of International Obligations

Due Diligence: The General Aspects

Due Diligence: Specificities of Environmental Law

Conclusion

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

Conclusion

Chapter III: The Viability of Due Diligence on the High Seas

Introduction

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

Introduction

Section 1: Due Diligence as an Informing Process

From Interpretation to Law-Making

The Critical Role of the Judge in the Determination of Diligence

Conclusion

Section 2: Shaping the UNCLOS for Modern Challenges

Informing the UNCLOS Through Due Diligence

Gaps and Limits of Due Diligence

Conclusion

Conclusion