CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ DUE DILIGENCE UNDER THE LAW OF THE SEA States. This discrepancy was also noted by the Chamber and it concluded that “responsibility” means primary obligation in this context. 20 In the view of the Chamber, States’ obligation to ensure is not an obligation to achieve certain result. Said obligation requires States to “ deploy adequate means, to exercise best possible efforts, to do the utmost, to obtain this result ”. 21 The Chamber characterizes these obligations as obligations of due diligence and obligations of conduct. 22 When it comes to the accountability of States for a conduct of persons under their jurisdiction, the Chamber concludes that: “[ while ] it is not considered reasonable to make a State liable for each and every violation committed by persons under its jurisdiction, it is equally not considered satisfactory to rely on mere application of the principle that the conduct of private persons or entities is not attributable to the State under international law .” 23 This position is in accordance with the general principle found throughout all branches of the international law – only the most severe violations (or at least violations of certain degree) should be dealt with on the international level. Severity of such violation may be identified by various factors. The crucial part of the advisory opinion is the content of the due diligence obligation. As stated before, the due diligence is a variable concept changing in time and under different circumstances. The Chamber confirms this and suggests new scientific and technological knowledge as examples of how due diligence may develop in time. 24 Different activities in the Area represent different level of risks involved in them. The Chamber came up with general guideline that prospecting is less risky than exploration, which is less risky than exploitation. The same logic applies to different kinds of minerals involved in said activities. Therefore, a different standard of due diligence may be required for activities concerning polymetallic nodules, polymetallic sulphides or cobalt-rich ferromanganese crusts. The concept behind this is that the standard of due diligence has to be higher for the riskier activities. 25 Such conclusion has two consequences. Firstly, prima facie same obligation has, in fact, different content. For example, all three Regulations of the Assembly of the International Seabed Authority regarding prospecting and exploration of polymetallic nodules, polymetallic sulphides and cobalt-rich ferromanganese crusts contain a provision on protection and preservation of the marine environment. 26 The provision reads: “ Pursuant to article 145 of the Convention and paragraph 2 of this regulation, each contractor shall take necessary measures to prevent, reduce and control pollution and other hazards to the marine environment 20 Advisory opinion 2011, op. cit. 6 , para. 69. 21 Ibid. para. 110. 22 Ibid . 23 Ibid. para. 112. 26 Decision of the Council of the International Seabed Authority relating to amendments to the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area and related matters, 22 July 2013, ISBA/19/C/17, Annex, Regulation 31 para. 5, approved by the Decision of the Assembly of the International Seabed Authority regarding the amendments to the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, 25 July 2013, ISBA/19/A/9, Decision of the Assembly of the International Seabed Authority relating to the Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area, 22 October 2012, ISBA/18/A/11, Annex, Regulation 33 para. 5, Decision of the Assembly of the International Seabed Authority relating to the regulations on prospecting and exploration for polymetallic sulphides in the Area, 15 November 2010, ISBA/16/A/12/Rev.1, Annex, Regulation 33 para. 5. All available online: https:// www.isa.org.jm/mining-code/Regulations. 24 Advisory opinion 2011, op. cit. 6 , para. 117. 25 Advisory opinion 2011, op. cit. 6 , para. 117.

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