Due Diligence and the High Seas

Tony Cabus is a Post-Doctoral researcher at the Graduate School of International Cooperation Studies (GSICS) in Kobe University, Japan. His research focuses on the law of State responsibility and the law of the sea with the aim of providing solutions for a better protection of our oceans. He has obtained a PhD in international law from GSICS in Kobe University (2017-2020), a master degree in international and European law from both Grenoble-Alpes University (2014-2015) and Aix-Marseille University (2011-2012) in France, and, a Bachelor degree from the University of Picardy in Amiens. He was also a participant in the 2019 Summer Academy of the International Foundation for the Law of the Sea in Hamburg; and, an assistant in the 2017 edition of the International Symposium on the Arctic in Kobe. He was a beneficiary of the MEXT Scholarship from the Japanese Ministry of Education, Culture, Sports, Science and Technology and an awardee of the Ryoso Award from the Ryosokai association.

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