Due Diligence and the High Seas

Tony Cabus

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000531848
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

There has been a rapid growth of interest in due diligence, especially in the fields of environmental law and the law of the sea. Yet, confusion seems to surround this notion. Is due diligence a principle, a rule, a standard or something else? This book firstly explores thoroughly the concept of due diligence, its purpose and its mechanisms in order to propose a comprehensive theory of due diligence in harmony with the general law of State responsibility.

In the meantime, this book also explores the usefulness of due diligence to address modern challenges afflicting the high seas. Indeed, while the application of due diligence in transboundary contexts is well illustrated by jurisprudence, its applicability in areas beyond national jurisdiction remains unclear. Yet, a proper usage of this concept may be crucial for the protection of the high seas, as it allows for the intervention of international standards in this fragile area. Hopefully, the concept of due diligence can help compensate the insufficiencies of the United Nations Convention on the Law of the Sea concerning the high seas.

Examining in detail the theory of due diligence, this book will interest international lawyers concerned with this notion. It also offers a new perspective on the UNCLOS through the prism of due diligence and will interest lawyers dealing with the protection of the marine environment and fisheries.

1 The Historical Development of Due Diligence

DOI: 10.4324/9781003247845-2

Introduction

When does a State bear responsibility for the actions of private individuals? As a general principle it is well known that the conduct of private actors is not attributable to the State under international law. ¹ Yet, such an answer is unsatisfactory as it may leave victims without any form of reparation when the culprit is beyond reach. For this reason, different forms of responsibility have been developed in order to hold another person, entity, or the collectivity responsible for a wrongful act. These forms can be called derivative responsibility ² or vicarious responsibility ³ but they have one common weakness: they unfairly burden the State. Consequently, another form of responsibility had to be theorized in order to combine the need for a certain level of accountability and the immunity of States regarding acts of individuals. This resulted in the theory of due diligence, and this chapter aims at tracing the roots of this theory and its main evolutions. By conducting such research, this chapter hopes to highlight the purpose of the concept of due diligence, its main attributes, and its application. To this end, the theory of the responsibility of States for acts or private actors will highlight the foundations of due diligence and thereafter its development (Section 1), while the more recent work of the ILC on the law of State responsibility will provide us with the most recent framework in which due diligence intervenes (Section 2). Eventually, the results of this chapter will allow us to have a precise idea of the traditional concept of due diligence for the following analysis.

1 Draft Articles on Responsibility of States for Internationally Wrongful Acts, U.N. Doc. A/56/10 (ILC Yearbook, 2001, vol. 2, Part Two) 30 [hereinafter Draft Articles on State Responsibility] at 47. 2 Janes (United States v. Mexico), Award, [1925] R.I.A.A. vol. 4, 82 [hereinafter Janes]. 3 Lassa Oppenheim, International Law, A Treatise, 2nd ed. (London: Longmans, Green, and Co, 1905) vol. 2 at 200; while derivative responsibility requires a failure from the State which subsequently becomes responsible for the original harmful act, vicarious responsibility holds the State responsible for “acts other than its own” even without a lack of “diligence.”

Section 1: The Early Development and Evolution of the Concept of Due Diligence: From Early Theories to the ILC Codification

The expression “due diligence” is somehow a late invention. While it appeared in the Alabama claims, ⁴ it was unseen in some of the most influential cases that followed and that serve today as references for the concept of due diligence, i.e., the Trail Smelter arbitration, the Corfu Channel case and the Gabčíkovo Nagymaros case. ⁵ This fact evidences that the phrase “due diligence” is not necessarily imperative to convey the same reasoning. Therefore, it is not surprising to find traces of due diligence throughout history. Accordingly, this section will evidence the original purpose of due diligence and bring to light its historical characteristics which may still be of relevance today. The first subsection will show that due diligence is only one possible answer to the question of State responsibility for acts of private actors ⁶ and that the understanding evolved along with the evolution of the European society (1.1). The second subsection will retrace the first interventions of due diligence in judicial contexts and illustrate again some aspects of due diligence (1.2). Finally, the third subsection will wrap up the main elements subsisting after centuries of evolution (1.3).

4 Alabama claims of the United States of America against Great Britain, Award, [1872] Tribunal of Arbitration Established by Article I of the Treaty of Washington of 8 May 1871, R.I.A.A. vol. 29, 125 [hereinafter Alabama]. 5 Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgement [1997] ICJ Reports 7 [hereinafter Gabčíkovo-Nagymaros]. 6 With the other being collective “strict” responsibility, see subsection 1.1.1 below.

1.1 The Theoretical Roots of Due Diligence: The State’s Responsibility for Acts of Private Actors

As we have said, the reasoning behind due diligence aimed at finding the State’s responsibility for acts of private individuals. The first answer brought to that question was quite simple: a collectivity was responsible for the acts of its individuals. A second answer came later with Grotius and changed the origin of the State’s responsibility while the last step, taken by Anzilotti, objectified the violations of States.

1.1.1 The Tribal or Collective Concept of Responsibility

Antiquity and the Middle Ages were marked by a collective conception of responsibility. The ancient Roman saw society as a “system of concentric circles” ⁷ forming the basic units of the State: the first circle being the Family, the second being the House, the third being the Tribe and the State being the last circle encompassing all the others. These units could therefore interact with each other instead of individuals and in the Roman world, the interaction between Romans and non-Romans, the last circle, gave birth to jus gentium. ⁸ Naturally, this collectivist understanding of society had an impact on responsibility and single units were often found responsible for the actions of one of their individuals. An injured family for example was allowed to ask the family of the individual responsible for compensation for the injury and States could demand compensation to one another for the actions of their citizens. ⁹

7 Sir Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society and its Relation to Modern Ideas, 16th ed. (London: John Murray Albemarle Street, 1897) at 128. 8 Which later came to be interpreted as natural law, Völkerrecht in German law, droit des gens in French law or more generally as public international law. See: Jan Arno Hessbruegge, “The Historical Development of the Doctrines of Attribution and Due Diligence in International Law” (2004) 36 New York University Journal of International Law and Politics 265. 9 Ibid. On an inter-State level, the Romans held Illyria responsible for the actions of Illyrian pirates and Greece responsible for the mere fact that one of its citizens had breached the jus gentium.

The same legal mechanisms prevailed within medieval Europe. Yet, tribes were often the most common level of interaction as States were too weak to interact instead of their subjects. Thus, had one member of a tribal entity killed or injured a member of another, the latter tribe could ask for retribution from the former tribe. Whether the injury was accidental or voluntary was irrelevant. ¹⁰ The retribution could be provided by blood or money. In the later stages of the Middle Age, this strict concept of collective responsibility was first eased with the tribes being able to avoid their collective responsibility by evicting the responsible individual from their community. This individual would become an outlaw or vogelfrei, and murdering him would not entail any responsibility. This form of punishment also followed the theory of Gentili. According to him a community could be guilty of a “sin of omission” ¹¹ if it failed to “make good the delinquency of its individual members.” ¹² In that sense, the punishment provided by the culprit’s tribe served as a primitive form of repression which is sometimes considered today to be part of due diligence in the context of injury to aliens. ¹³

10 Ibid. 11 Alberico Gentili, De Jure Belli Libri Tres, trans by John C. Rolfe (London: Clarendon Press, 1612) at 104. 12 Ibid. 13 Robert P. Barnidge Jr, “The Due Diligence Principle Under International Law” (2006) 8 International Community Law Review 81.

1.1.2 Grotius and the Irresponsibility of States for Acts of Private Actors

With the centralization of the State and the concentration of power in the hands of a single ruler, the theory of responsibility evolved towards the ruler’s or sovereign’s responsibility. More importantly, the concept of “fault” ¹⁴ was introduced. Hence, the strict collective responsibility of tribes was progressively abandoned and a subjective element of “knowledge” was introduced. The first author responsible for such change was Grotius. In his work, De Jure Belli Ac Pacis, written for the king of France Louis XIII,...