CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ DUE DILIGENCE UNDER THE LAW OF THE SEA neutral against its will. ” 4 The Tribunal concluded that due diligence: “ … ought to be exercised by neutral governments in exact proportions to the risks to which either of the belligerents may be exposed. From a failure to fulfil the obligations of neutrality on their part. ” 5 On the other hand one of the latest views on the scope of the due diligence was given by the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (hereinafter “the Chamber”) in its advisory opinion from 2011. 6 According to the Chamber, the due diligence obligation requires states to take measures within their legal system and that the measures must be reasonably appropriate. 7 Professor Duncan French pointed out that due diligence “ is a much easier term to describe than define ”. 8 In his view, due diligence is a states’ obligation to exercise their power on entities under their control to ensure that they act or refrain from acting, and that they are held accountable when they breach such obligation. 9 Such description may be used to identify key parts of the due diligence concept. Firstly, there is an obligation to exercise state’s power in order to achieve certain behaviour of entities under its jurisdiction. This is usually achieved by establishing adequate legal and administrative infrastructure. Secondly, the state has to effectively enforce such behaviour. The effective enforcement of established rules is often what decides whether a state is responsible under the international law or not. Due diligence requires: “… a certain level of vigilance in [states] enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities undertaken by such operators, to safeguard the rights of other party. ” 10 Due diligence is, therefore, characterized as an obligation of conduct, rather than obligation of result. 11 The notion of due diligence is also variable, depending on the different areas of international law, different circumstances and it is also changing in time. 12 The main source of the international law of states responsibility is a customary law which is then interpreted in judicial decisions and covered by various scholars. In 2001, the International Law Commission adopted Draft Articles on Responsibility of States for Internationally Wrongful Acts (hereinafter “Draft Article”). 13 The Draft Articles were meant to become an international convention. This, however, never happened. Despite that, the Draft Articles are commonly referred to before various international judicial bodies. 14 The Draft Articles are also mentioned in the three decisions below. 4 MOORE, J. B.: History and Digest of the International Arbitrations to Which United States has Been Party . Washington, 1898, pp. 572-573. 5 Alabama claims , op. cit. 2, p. 129. 6 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011 , p. 10. 7 Ibid. para. 120. 8 Study Group on Due Diligence in International Law, First Report , Comment of prof. Duncan French, 76 Int’l L. Ass’n Rep. Conf. 947, 2014, International Law Association, p. 981. 9 Ibid . 10 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, para. 197. 11 Advisory opinion 2011, op. cit. 6 , para. 110. 12 International Law Association Report, op. cit. 8 , p. 953-977. 13 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts , November 2001, Supplement No. 10 (A/56/10). 14 See United Nations General Assembly, Report of the Secretary-General, Responsibility of States for internationally wrongful acts, Compilation of decisions of international courts, tribunals and other bodies (1 February 2007) A/62/62, (30 April 2010) A65/76, (30 April 2013) A/68/72, (21 April 2016) A/71/80.

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