CYIL vol. 9 (2018)

VOJTĚCH POSPÍŠIL

CYIL 9 ȍ2018Ȏ

Convention In general, international treaty law rarely explicitly use the term “due diligence”. 15 As it was pointed out in the introduction, due diligence is a variable concept, which must be interpreted in accordance with the details of specific situation, rather than strictly defined set of obligations. The Convention uses the term only once in its Annex IV. Statute of the Enterprise, article 12, paragraph 3, subparagraph (b) (i), which contains a procurement rule, stating that: “ … the contract shall be awarded in accordance with the principle of non-discrimination on the basis of political or other considerations not relevant to the carrying out of operations with due diligence and efficiency. ” This provision is hardly of any significant importance within the structure of the Convention. The Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 16 (hereinafter “Agreement”) does not operate with the term “due diligence” at all. Nonetheless, the Convention contains numerous provisions that impose due diligence obligation for States. Advisory opinion of the Seabed Disputes Chamber On 6 May 2010 the Council of the International Seabed Authority has adopted a decision ISBA/16/C/13. The Council has requested the Chamber to render an advisory opinion on three questions. The questions of the Council were following: 1. What are the legal responsibilities and obligations of States Parties to the Convention with respect to the sponsorship of activities in the Area in accordance with the Convention, in particular Part XI, and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982? 2. What is the extent of liability of a State Party for any failure to comply with the provisions of the Convention, in particular Part XI, and the 1994 Agreement, by an entity whom it has sponsored under Article 153, paragraph 2 (b), of the Convention? 3. What are the necessary and appropriate measures that a sponsoring State must take in order to fulfil its responsibility under the Convention, in particular Article 139 and Annex III, and the 1994 Agreement? 17 On 1 February 2011, the Chamber delivered its advisory opinion. The Chamber identifies article 139 paragraph 1, article 153 paragraph 4 and Annex III, article 4 paragraph 4 of the Convention as three key provisions concerning the obligations of the sponsoring States. 18 These provisions state that the Sponsoring States have “ the responsibility to ensure ”. The Convention does not use the term “responsibility” in accordance with the common meaning of this term. Under the international law, the State responsibility is considered as a secondary rule. 19 However, the Convention, in this context, constitutes primary obligations for the 15 International Law Association Report, op. cit. 8 , p. 952. 16 UN General Assembly, The Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 , 28 July 1994, U.N.T.S. 1836. 17 Advisory opinion 2011, op. cit. 6 , para. 1. 18 Advisory opinion 2011, op. cit. 6 , para. 99. 19 UN General Assembly, Report of the International Law Commission , Fifty-third session, Supplement No. 10 (A/56/10), p. 59 et sq .

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