NATIONAL LAW INSTITUTE

UNIVERSITY, BHOPAL

Public International Law

DUE DILIGENCE IN INTERNATIONAL ENVIRONMENTAL LAW

Submitted by

RIDDHIMAN SARKAR

2015 BA LLB 99

Submitted to

PROF. DEBASHRI SARKAR

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 Table of Contents
Acknowledgement ..................................................................................................................... 3

Introduction ................................................................................................................................ 4

Due Diligence in International Environment Law ..................................................................... 5

Genesis of the concept of Due Diligence ............................................................................... 5

In the environmental law context........................................................................................... 5

Nature of Due Diligence Obligation ...................................................................................... 6

Two aspects of the due diligence obligation .......................................................................... 7

Case Study ................................................................................................................................. 8

Precautionary Principle ............................................................................................................ 10

Conclusion ............................................................................................................................... 13

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 ACKNOWLEDGEMENT
I would like to take this opportunity to express my profound gratitude and deep regards to Prof.
Debashree Sarkar for her exemplary guidance, monitoring and constant encouragement
throughout the course of this project work. I would further like to thank her for giving me this
opportunity to work and research on a project that involves such an interesting and
contemporarily relevant topic.

Furthermore, I would also like to extend my gratitude towards National Law Institute
University which has given me the platform to carry out my research on such an important.

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 INTRODUCTION
Due diligence obligations in international environment law arises from the fact that states have
the sovereign right to exploit their own resources in accordance with the Charter of the United
Nations and the principles of international law1 coupled with the duty that activities within their
jurisdiction do not cause harm to the environment of other states.2 The International Law
Association (“ILA”) has recognised that due diligence plays a pivotal role in mediating
interstate relations where there is significant change.3 In this research project I will endeavour
to first ascertain what due diligence means and when does a state successfully fulfil its due
diligence obligations in the international environmental law context. In doing so I will take the
help various academic writings and judicial pronouncements, focussing specially on the
landmark judgement given by the ICJ in Costa Rica v. Nicaragua4 (2015). The last part of this
project will analyse the Precautionary Principle of international environment law, which has
been developed from concern over the irreversible environment damage that might be caused
by undertaking certain activities and is essential when there exists uncertainty as to whether
damage will be caused to the environment by these activities.

1
Akiko Takano, Due Diligence Obligations and Transboundary Environmental Harm: Cybersecurity
Applications, Open Access Journal, Vol 7(4), p. 2.
2
International Law Association (ILA) Study Group on Due Diligence in International Law, Second Report, July
2016, p. 47.
3
ILA Group Study on Due Diligence in International Law, 1 st Report, March 7, 2014.
4
Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a
Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), ICJ Reports 2015.

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 DUE DILIGENCE IN INTERNATIONAL ENVIRONMENT LAW
GENESIS OF THE CONCEPT OF DUE DILIGENCE
Due diligence, as a standard of conduct required to discharge an obligation, can be traced to
Roman law,5 under which an individual was held to be accountable for any accidental harm
caused to others by his actions if the harm caused was due to the individual’s failure to meet
the standard of conduct expected of a diligens paterfamilias,6 that is, a prudent person who
recognises the risk of damage and takes reasonable steps to prevent such damage from being
caused.

The concept of due diligence passed into international law through the writings of Grotius in
the 17th century.7 The difference between due diligence in Roman Law and due diligence in
international law is that in the latter, it operates as a standard of conduct. It defines and
circumscribes the responsibility of a state in relation to the conduct of a third party. 8 Justice
John Moore in the case of S.S Lotus9 had remarked that every state is bound to exercise due
diligence to stop the commission of criminal acts against another state or its people. In the
Wipperman10 case, he went a step ahead and remarked that the only obligation of a state was
to conduct reasonable diligence to prevent harm. That is, once a state does that, they cannot be
held liable for any unforeseen harm.

IN THE ENVIRONMENTAL LAW CONTEXT

In the international environment law context, due diligence signifies the conduct to be expected
of a good government in order to effectively protect other States and the global environment at
large.11 It has its genesis in the principle of “do no harm”, which is enshrined in Principle 21
of the Stockholm Declaration and Principle 2 of the Rio Declaration. Due Diligence forms the
most important component of the obligation to prevent transboundary harm. This assertion is
supported both in customary law and in treaty law. The International Court of Justice (“ICJ”)
recognised due diligence as the chief component to prevent transboundary harm as early as

5
R. Zimmerman, The Law of Obligations: Roman Foundations of the Civilian Tradition (1996), at 1009.
6
Literally translated, it means a “prudent head of a household”.
7
Hessbruegge, ‘The Historical Development of the Doctrines of Attribution and Due Diligence in International
Law’, 36 International Law and Politics (2004) 265.
8
Davitti, ‘On the Meanings of International Investment Law and International Human Rights Law: The
Alternative Narrative of Due Diligence’, 12 Human Rights Law Review (2012) 421, at 445.
9
Case of the S.S. Lotus (France v. Turkey) 1927 PCIJ Series A, No. 10., page 88.
10
(United States of America v. Venezuela) (1887), reprinted in J. Bassett Moore, History and Digest of the
International Arbitrations to Which the United States Has Been a Party, vol. 3 (1898–1906)
11
Patricia Birnie and Alan Boyle, International Law and the Environment (2009), page 112.

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1949 in the Corfu Channel Case.12When it comes to treaty law, the Draft Articles13 by way of
Article 3 confirms that all states have a duty to prevent significant transboundary harm and by
way of Article 7 necessitates that states must provide an assessment of possible transboundary
harm by the activities undertaken by them. Although states have a duty to prevent
transboundary harm, they are said to have failed in fulfilling their duty only when they have
not acted diligently.14

NATURE OF DUE DILIGENCE OBLIGATION

The nature of due diligence obligation is that of conduct and not that of outcome. This has been
reiterated by the ICJ in the Genocide15 case and also has been recognised by luminaries such
as Joanna Kuleza.16 Simply put, states are only liable when they have failed to undertake
reasonable steps or necessary measures to prevent harm from happening but are not liable if
after taking such reasonable steps or necessary measures, harm is still caused. Therefore, due
diligence obligation is that of conduct and not that of result. Flexibility forms an essential
element of the standard of conduct that states are expected to follow. All states are not expected
to act in the same way in order to mitigate/prevent foreseeable consequences. They are
expected to take steps in accordance to their capabilities.17 Therefore, an under developed
country like Mozambique or a developing country like India, won’t be expected to take the
same measures to prevent a similar event from happening.

If a state is to prove that is has made the best possible effort, it must have acted in a way such
as to avoid significant damage or if nothing else, limit the danger of such damage.18 The ITLOS
(“International Tribunal for the Law of the Sea”) has opined that precaution is the most
important part of the obligation of due diligence. It means that in some instances, states might
be asked to implement rules and regulations to prevent transboundary harm in furtherance of
their due diligence obligation. The precautionary principle as such will be discussed at length
later in this research project.

12
Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep. 4.
13
Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, with commentaries,
Yearbook of the International Law Commission, 2001, Vol. II, Part Two.
14
ILA Group Study on Due Diligence in International Law, 1st Report, March 7, 2014, page 4.
15
Application of the Convention on the Protection and Punishment of the Crime of Genocide (Bosnia v Serbia)
(Judgment) [2007] ICJ Rep. 1, para 430.
16
Joanna Kuleza, Due Diligence in International Law (2016), page 99.
17
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the
Area [ITLOS Advisory Opinion, Seabed Chamber] (Seabed Dispute Chamber of the International Tribunal of the
Law of the Sea, Case No 17, 1 February 2011), para 161.
18
ILA Group Study on Due Diligence in International Law, 1st Report, March 7, 2014, page 2.

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TWO ASPECTS OF THE DUE DILIGENCE OBLIGATION
The due diligence obligation can be further sub-divided into two categories-

a. Substantive obligation to prevent transboundary harm; and

b. Procedural obligation to conduct an Environmental Impact Assessment (“EIA”), to
notify and to engage in consultation with the affected state(s).19

Having already discussed the substantive obligation in the preceding part, I will discuss the
procedural obligations relating to due diligence in this part. The first component of the
procedural aspect is to conduct an EIA. EIA is a national procedure for evaluating the likely
impact of a proposed activity on the environment.20This obligation is triggered only when there
is risk of significant transboundary environment damage. Herein I note that to gauge the risk
of transboundary environmental damage, a preliminary assessment has to be conducted.
However, it remains unclear if a state can use the defence that the preliminary assessment did
not indicate any risk of transboundary damage, if an activity undertaken by them causes
transboundary harm.

The requirement to carry out an EIA is found in: the municipal legislations of countries like
the United States, Canada and the member states of the European Union, in judicial
pronouncements of the ICJ in cases like the Gabcikovo–Nagymaros case21 and the Legality of
Nuclear Weapons advisory opinion,22 in bilateral agreements such as North American
Agreement on Environmental Co-operation.23 Most significantly, Principle 17 of the Rio
Declaration states that “environmental impact assessment, as a national instrument, shall be
undertaken for proposed activities that are likely to have a significant impact on the
environment and are subject to a decision of a competent national authority”.

If the EIA conducted shows that there is a significant risk of damage to the environment, the
state of origin is under the obligation to issue a notification to the concerned states about the
same at the earliest possible. The obligation to notify is a continuous obligation and is present
not only in the “pre-activity stage” but also when a certain activity is undertaken which has
caused some damage.

19
Pierre-Marie Dupuy and Jorge E. Viñuales, International Environmental Law (2015), page 180.
20
Article 1(vi), Convention on Environmental Impact Assessment in a Transboundary Context, 1991.
21
Case concerning the Gabcikovo–Nagymaros Project (Hungary/Slovakia), ICJ Rep. 1997 41, para 53.
22
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep. 1996 (I), 241–42, para
29.
23
Article 2.

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Along with the duty to notify, the state of origin is also under the duty to consult with the
concerned states before undertaking a project. In this consultation process, the states are to
consider each other’s rights and legitimate interests.24 However, the duty to consult does not
entail that the state of origin must always reach a common ground with the affected state.

CASE STUDY
In this section, we will analyse one of the most recent landmark judgement given by the ICJ in
the case concerning Certain Activities Carried out by Nicaragua in the Border Area (Costa
Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River
(Nicaragua v Costa Rica). The analysis in this section is limited to the aspects pertaining to
international environment law only. Both Costa Rica and Nicaragua instituted proceedings
against each other based on the same factual, demographic and historical context. In light of
this, the court decided to join the proceedings and addressed the questions of law and fact raised
by both parties in one decision.

The facts leading up to the dispute were as following:

1. The Nicaragua encroached into the territory of Costa Rica with the help of its armed
forces. They did so on the pretext that according to Google Maps, the territory in
question belonged to the Republic of Nicaragua. The territory in question was 3
kilometre stretch, located in the north of Isla Portillas. The media reported this as the
first Google Maps War.25
2. Following this incursion, Costa Rica took legal recourse by approaching the ICJ,
alleging unlawful incursion, occupation and used of Costa Rican territory. They also
alleged that by digging a channel to aid navigation, Nicaragua felled trees and caused
harm to the flora and fauna which resulted in serious harm to protected wetlands and
rainforests.26
3. In response to this, Nicaragua instituted a suit of their own against Costa Rica, alleging
among other things that the construction of a road by Costa Rica, along the Costa Rica-
Nicaragua border, caused significant transboundary harm.

The ICJ while dealing with questions pertaining to territorial sovereignty also provided clarity
on matters involving international environmental law. Both parties contested that the other

24
Maria Flemme, Due Diligence in International Law, Master Thesis, University of Lund, page 20.
25
Frank Jacob, The First Google Maps War, The New York Times.
26

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failed to fulfil its due diligence obligation of conducting an EIA, notifying the results of such
EIA and engage. In light of the above, the ICJ made the following observations:

1. Firstly, the duty to conduct an EIA forms an essential element of the procedural due
diligence obligation of a state which undertakes any activity which has the potential to
cause transboundary damage. Its application is not just restricted to activities of an
industrial nature but also includes every such activity which may cause significant
damage to the environment.27
2. Secondly, a state can be held responsible for responsible for not conducting an EIA
even if no transboundary harm was caused, if there existed a significant risk of
irreversible damage to the environment. Thus, the procedural aspect of the due
diligence is that of conduct and not that of result.

It is interesting to note that four of the judges, namely, Owada, Donoghue, Duggard and
Trindade differed on whether the obligation to conduct an EIA was different from the
obligation to conduct due diligence. Judges Owada and Donoghue were of the opinion that the
obligation to conduct EIA, notify and consult cannot be distinguished from the obligation to
conduct due diligence. Judge Duggard opined that the umbrella obligation emanated from the
customary principle of “prevention” and that the obligation to conduct due diligence derives
its legitimacy from the same. Judge Trindade was of the view that the obligation to conduct an
EIA was distinct from that of conducting a due diligence.

One of the major criticisms28 that has been levelled on the said judgement is the fact that the
court failed to authoritatively deal with the legal status of the obligation to conduct due
diligence. The court could have chosen to either depart from the ITLOS29 which affirmed that
the duty to conduct an EIA had crystallised into a custom or depart from the conclusion reached
by the ITLOS.

27
Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a
Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), ICJ Reports 2015, para 104.
28
Rumiana Yotova, The Principles of Due Diligence and Prevention in International Environmental Law,
Cambridge Law Journal, Page 447.
29
Responsibilities and Obligations of States with Respect to Activities in the Area, Advisory Opinion, para 145.

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 PRECAUTIONARY PRINCIPLE
The precautionary principle is a principle of international law designed to help States reach the
goal of environmentally sustainable development.30 This principle is best reflected in the 1992
Rio Declaration on Environment and Development, which states that “where there are threats
of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason
for postponing cost-effective measures to prevent environmental degradation.”31 This signifies
that where an activity poses a risk of causing significant damage to the environment, it should
be avoided and precautionary measures shall be taken, even where there is no full scientific
certainty on the impact of the said activity.

The precautionary principle must be distinguished from the preventive or protective principle.
The latter obliges States to prevent activities in any place within their jurisdiction in the event
that such activities would cause damage to another State’s environment. 32 As seen from the
drafting of the obligation in international conventions, the need for action only arises where
there is substantial evidence that the activity would harm the environment.33 This is contrary
to the precautionary principle which entails a considerably lower threshold of proof - the State’s
obligation arises even in cases of lack of scientific certainty.

The term ‘scientific uncertainty’ plays a significant role in determining the scope of the
precautionary obligation. This is because uncertainty may be of various types, such as
insufficient data, inadequate risk assessment models, ignorance and ambiguity among others.
In order to assess the principle in light of this variation, Von Schomberg, a highly qualified
publicist,34 has taken four scenarios into consideration- first, the precautionary principle
requires at least some kind of scientific assessment and cannot apply to ‘hypothetical effects
and imaginary risk.’ Second, the principle remains inapplicable in cases where there is
predefined standard of care, and the risk of harm is quantifiable. Third, the principle does apply
where an activity is potentially hazardous but there is insufficient scientific evidence or a
disagreement as to the nature or threshold of damage. Lastly, the principle may also be invoked
where there an activity poses potential risks to the environment but the cause-effect relationship

30
Meinhard Schröder, Precautionary Approach/ Principle, in MAX PLANCK ENCYCLOPEDIA OF INTERNATIONAL
LAW ¶1 (Rüdiger Wolfrum ed., 2014).
31
United Nations Conference on Environment and Development, Rio Declaration on Environment and
Development, Principle 15, UN Doc A/CONF. 151/26/Rev 1 vol I, 3 (June 14, 1992).
32
Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. 14 (Apr. 20).
33
Convention for the Prevention of Marine Pollution from Land-Based Sources entered into force May 6, 1978,
art. 4(4), 1546 UNTS 120.
34
STATUTE OF THE INTERNATIONAL COURT OF JUSTICE, art. 38, para. 1(d).

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cannot be proven scientifically.35 Commentators have also advocated two standards to
determine the extent of the precautionary action obligation- the standards of “reasonable
scientific possibility” and “reasonable scientific probability.”36 The former requires tangible
grounds for asserting that there is a potential hazard, even if such belief is held by only a
minority of experts. The latter standard is stricter and requires the scientific community to agree
that the risk assessment methods used are appropriate and that the conclusion of the assessment
is in agreement with the methods used.

Apart from the above-mentioned elements, the main features of the precautionary principle are
risk evaluation in the form of environmental impact assessment procedures, the requirement of
cost-effectiveness, as well as continuing scientific research.37

It has been argued that the precautionary principle has attained the status of customary
international law or is, at the least, evolving into a norm of that status. As laid down by the
International Court of Justice [hereinafter “ICJ”] in the North Continental Shelf cases, for a
rule to be recognised as custom, there must be uniform and widespread State practice as well
as the acceptance of such practice as law, that is, opinio juris.38 Both the elements have been
met by some States, for instance, in the European Union, if we look to their legislations and
judicial decisions. The precautionary principle has been embodied as a Constitutional principle
in the form of Article 191(2) of the Treaty on the Functioning of the European Union. 39
Decisions of the Court of the European Free Trade Association Court and the European Court
of Justice in EFTA Surveillance Authority v Norway,40 United Kingdom v Commission41 and
Monsanto v Italy42 also evince the acceptance of this principle as a binding obligation.

It is important to note, however, that international tribunals such as ITLOS, the Appellate Body
of the World Trade Organisation [hereinafter “WTO”] and the ICJ have adopted contrasting
approaches towards the principle. The ITLOS, as seen in the Southern Bluefin Tuna Cases43

35
Von Schomberg, The precautionary principle: Its use within hard and soft law, 2 EUROPEAN J. OF RISK
REGULATION 147, 156 (2002).
36
James E. Hickey, Jr. & Vern R. Walker, Refining the Precautionary Principle in International Environmental
Law, 14 VA. ENVTL. L.J. 423, 448-52 (1995).
37
Sonia Boutillon, The Precautionary Principle: Development of an International Standard, 23 MICH. J. INT'L L.
429, 447 (2002).
38
North Sea Continental Shelf (Ger. v Den.) (Merits) 1969 I.C.J. 3 (Feb. 20).
39
European Union, Consolidated version of the Treaty on the Functioning of the European Union, 13 December
2007, 2008/C 115/01.
40
Case E–3/00 EFTA Surveillance Authority v Norway [2001] 91 Common Market Law Reports 1184.
41
Case C-180/96 United Kingdom v Commission (1998) ECR I-2265.
42
Case C-236/01 Monsanto v Italy [2003] ECR I-8105.
43
Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) (Provisional Measures) ITLOS Cases
Nos 3, 4 (27 August 1999).

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and the MOX Plant Case,44 has allowed for the application of the principle albeit not in an
express manner. On the contrary, the ICJ and the WTO have been hesitant in accepting the
precautionary principle as an existing customary law obligation. For instance, in the second
Nuclear Tests case between New Zealand and France,45 the ICJ consciously refused to discuss
the status of the principle and decided the case on other grounds, even though the principle was
recognised as an existing standard of international law in Judge Weeramantry’s dissenting
opinion.46 This approach of the Court is also seen from its subsequent decision in the
Gabčíkovo-Nagymaros Case between Hungary and Slovakia,47 followed by the WTO
Appellate Body in the EC Hormones complaints filed by Canada and the United States.48
Furthermore, the European Court of Human Rights (ECtHR) failed to recognise the
precautionary principle as a customary norm in the case of Balmer-Schafroth v. Switzerland.49

In conclusion, it must be noted that although attempts have been made to delineate the scope
of a State’s obligations under the precautionary principle by ascertaining the meaning of the
element of “full scientific certainty” among others, the question of which test would apply in
what circumstances remains unanswered and the legal position of the principle under
international law is still unclear. As environmentally sustainable development is the need of
the hour, it is crucial that the dispute regarding the nature and extent of the precautionary
principle be resolved without delay.

44
MOX Plant Case (Ireland v United Kingdom) (Order) ITLOS Case No 10 (3 December 2001).
45
Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20
December 1974 in the Nuclear Tests (New Zealand v France) Case (Order) [1995] ICJ Rep 288.
46
Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20
December 1974 in the Nuclear Tests (New Zealand v France) Case (Order) [1995] ICJ Rep 317 (dissenting opinion
by Weeramantry, J.).
47
Gabčíkovo-Nagymaros Project (Hung. v. Slovk.), Merits, 1997 I.C.J. 7 (Sept. 25).
48
WTO EC—Measures Concerning Meat and Meat Products (Hormones)—AB–1997–4—Report of the Appellate
Body (16 January 1998) WT/DS26/AB/R and WT/DS48/AB/R.
49
Balmer-Schafroth v Switzerland (ECtHR) Reports 1997-IV 1346.

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 CONCLUSION
It can be concluded from the preceding parts of this research project that states are under a duty
to prevent transboundary harm that may be caused as a result of activities undertaken by it. In
order to do so, states are under the obligation to conduct due diligence. While the substantive
part of the due diligence obligation entails that states prevent transboundary harm, the
procedural part entails that states conduct an EIA, notify the affected states of the results of the
EIA and engage in meaningful consultations with these states. The procedural obligations only
arise when there is a significant risk of transboundary harm. To ascertain the same, states are
required to conduct preliminary assessments. If the EIA conducted shows that there is scientific
uncertainty as to whether there can be possible transboundary damage, the precautionary
principle of international law dictates that states cannot use this uncertainty as an excuse for
harm caused by activities undertaken by them. Furthermore, the principle also dictates that
states should be careful of risks which did not exist or were not known at the time.

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