CYIL vol. 9 (2018)

VOJTĚCH POSPÍŠIL CYIL 9 ȍ2018Ȏ arising from its Activities in the Area as far as reasonably possible, applying a precautionary approach and best environmental practices. ” Even though the provision constitutes prima facie same kind of obligation, in practice, it can largely vary. As the technological processes of each activity and type of resources differ, the content of the obligation differs as well. Secondly and more generally, the content of due diligence obligations is a factual question rather than a legal question. To certain degree, this can be said about any (primary) obligation. The Draft Articles identifies two elements of internationally wrongful acts: a) it must be attributable to the State under international law, which is a subjective element, and b) it must constitute a breach of an international obligation of the State, which is an objective element. 27 Whether these criterions are met is a legal question. Although, the breach of an international obligation consists of the disconformity between the conduct required of the State by that obligation and the conduct actually adopted by the State, 28 which leads to the ultimate question: what conduct is required of the State by that obligation. The content of these due diligence obligations is determined by factual state of human knowledge and technical advancement in respective fields of expertise. Besides due diligence obligations, the Chamber identifies direct obligations. 29 Direct obligations are, however, not counterpart to due diligence obligations and the relationship between them is more complicated than it may seem. On one hand these obligations are independent on each other, but on the other hand: “ the compliance with these obligations can also be seen as a relevant factor in meeting the due diligence ‘obligation to ensure’ and that said obligations are in most cases couched as obligations to ensure compliance with a specific rule. ” 30 The Chamber also finds: “ that the precautionary approach is also an integral part of the general obligation of due diligence of sponsoring States, which is applicable even outside the scope of the Regulations. The due diligence obligation of the sponsoring States requires them to take all appropriate measures to prevent damage that might result from the activities of contractors they sponsor. ” 31 It is important to note, that this advisory opinion concerns exclusively with Part XI of the Convention. The regime of the Area is somewhat unique within the international law and not all conclusions are necessarily applicable throughout the Convention or the law of the sea in general. Advisory opinion for the SRFC The Conference of Ministers of the Sub-Regional Fisheries Commission (hereinafter “the SRFC”) was established on 29 March 1985 and consists of seven West African countries. 32 Member states of SRFC are also members of the Convention on the Determination of the Minimal Conditions for Access and Exploitation of Marine Resources within the maritime areas under the jurisdiction of the SRFC’s Member States adopted on 8 June 2012 33

27 Draft Articles, op. cit. 13 , Article 2. 28 Ibid . Article 12. 29 Advisory opinion 2011, op. cit. 6 , para. 121.

30 Ibid . para. 123. 31 Ibid . para. 131. 32 More information about SRFC are available here: http://www.spcsrp.org/en/presentation#History. 33 Full text of the MAC Convention available in English here: https://www.itlos.org/fileadmin/itlos/documents/ cases/case_no.21/Convention_CMA_ENG.pdf.

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