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Reflections on the role of due diligence in clarifying State discretionary powers in developing Arctic natural resources

Part of: International Law for Sustainability in Arctic Resource Development

Published online by Cambridge University Press:  03 February 2020

Nigel Bankes Open the ORCID record for Nigel Bankes [Opens in a new window]
Nigel Bankes*
Affiliation:
University of Calgary, 2500 University Drive NW, Calgary, Alberta, Canada KG Jebsen Centre for the Law of the Sea, UiT the Arctic University of Norway, Postboks 6050 Langnes, 9037Tromsø, Norway
*
Author for correspondence: Nigel Bankes, Email: ndbankes@ucalgary.ca
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Abstract

This article argues that the concept of diligence provides a useful role in clarifying (and perhaps narrowing) the discretionary powers of the State with respect to the development of natural resources. The claim has two branches. First, the concept of due diligence plays an important role in bridging the normative gap between the harms caused by private actors and the international law of State responsibility. It is the vehicle by which States can be made to assume responsibility for private developments within their jurisdiction and control that cause harm to other States. Second, the concept of due diligence plays an important role (a “generative role”) in teasing out the detailed logical implications of more abstract primary norms such as the duty of prevention. These derivative duties include the duties to make a preliminary assessment of whether the proposed activity may cause a risk of significant transboundary harm: to conduct an environmental impact assessment (EIA) if there is a risk of significant harm and, if the EIA confirms that risk, to notify and consult with respect to possible measures to prevent or mitigate that risk. The article demonstrates both of these claims through an examination of the jurisprudence of the International Court of Justice, the International Tribunal for the Law of the Sea and arbitral awards. Finally, the article applies these claims in the context of possible resource developments in Alaska, British Columbia and Yukon that may have transboundary implications.

Keywords

Due diligenceEnvironmental impact assessmentInternational environmental law
Type
Research Article
Information
Polar Record , Volume 56 , 2020 , e6
Copyright
© Cambridge University Press 2020

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References

Agreement Between the Government of Canada and the Government of the United States of America on the Conservation of the Porcupine Caribou Herd. U.S.-Can. July 17 (1987). CTS 1987 No 31.Google Scholar
Alabama Claims Arbitration (United States v Great Britain). May 8, 1871, XXIX UNRIAA 125.Google Scholar
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment. (2007). ICJ Rep 43.Google Scholar
Barnidge, R. B. (2006). The due diligence principle under international law. International Community Law Review, 8, 81–121.CrossRefGoogle Scholar
Berkes, A. (2018). The standard of ‘Due Diligence’ as a result of interchange between the law of armed conflict and general international law. Journal of Conflict and Security Law, 23(3), 433–460. https://doi.org/10.1093/jcsl/kry022CrossRefGoogle Scholar
Boundary Waters Treaty. U.S.-U.K. January 11, 1909. 36 Stat. 2448, T.S. No. 548.Google Scholar
Certain Activities/Construction of a Road (2015), 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) (2015) ICJ Rep 665.Google Scholar
Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom). (2015). Award.Google Scholar
Convention for the Protection of the Marine Environment of the North-East Atlantic. (1992). 32 ILM 1069.Google Scholar
Corfu Channel Case (United Kingdom v Albania). (1949). ICJ Rep 4.Google Scholar
Dispute Concerning Access to Information Under Article 9 of the OSPAR Convention (Ireland v United Kingdom). (2003). Final Award.Google Scholar
Dugard, C. J. R. (2015) Separate Opinion of Judge Ad Hoc Dugard in 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).Google Scholar
Duvic-Paoli, L. (2018). The Prevention Principle in International Environmental Law. Cambridge: Cambridge University Press.CrossRefGoogle Scholar
French, D., & Stephens, T. (2014). ILA Study Group on Due Diligence in International Law, First Report. International Law Association.Google Scholar
ICCPR (1966). International Covenant on Civil and Political Rights. 999 UNTS 171.Google Scholar
International Joint Commission. (1988). Impacts of a Proposed Coal Mine in the Flathead River Basin. https://ijc.org/sites/default/files/Docket%20110%20Flathead%20Final%20Report%20to%20Gov.pdfGoogle Scholar
IUU Advisory Opinion. (2015) Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission. (2015). ITLOS Rep 4. Advisory Opinion.Google Scholar
ILC (2001a) Draft articles on Prevention of Transboundary Harm from Hazardous Activities, with commentaries. (2001). International Law Commission. A/56/10.Google Scholar
ILC (2001b) Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries. (2001). International Law Commission. A/56/10.Google Scholar
Kyoto Protocol to the United Nations Framework Convention on Climate Change. (1997). 2303 UNTS 162.Google Scholar
Legality of the Threat or Use of Nuclear Weapons. July 8, 1996. ICJ Rep 226. Advisory Opinion.Google Scholar
Lowe, V. (2001). The Politics of Law-Making and the Changing Character of Norm Creation. In Byers, M. (ed.), The role of law in international politics. Oxford: OUP, 216.Google Scholar
LOSC . (1982). United Nations Convention on the Law of the Sea. December 10, 1982, 1833 UNTS 396.Google Scholar
McLachlan, C. (2005). The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention. International and Comparative Law Quarterly, 54(2), 279–319.CrossRefGoogle Scholar
Matz-Lück, N., & van Doorn, E. (2017) Due Diligence Obligations and the Protection of the Marine Environment. L’Observateur des Nations Unies, 42, 169–187.Google Scholar
Poma Poma v Peru (2009). Communication No. 1457/2006, Views of the HumanRights Committee, Adopted 27 March 2009.Google Scholar
Pulp Mills on the River Uruguay (Argentina v. Uruguay). (2010). ICJ Rep 14.Google Scholar
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area. (2011). ITLOS Rep 10. Advisory Opinion.Google Scholar
Rio Declaration on Environment and Development. June 5, 1992. 1720 UNTS 79.Google Scholar
South China Sea Arbitration (Philippines v China). (2016). PCA Case No 2013-19.Google Scholar
Statute of the River Uruguay, 26 February 1975, 1295 UNTS 339.Google Scholar
Stephens, T., & French, D. (2016). ILA Study Group on Due Diligence in International Law, Second Report. International Law Association.Google Scholar
Submission of The Inuvialuit Game Council (IGC) (2019). Submission of The Inuvialuit Game Council (IGC), Wildlife Management Advisory Council (North Slope) (WMAC(NS)), Wildlife Management Advisory Council (Northwest Territories) (WMAC(NWT)), and Fisheries Joint Management Committee (FJMC). https://www.pcmb.ca/PDF/EIS/IGC-WMAC(NS)-WMAC(NWT)-FJMC%20submission%20to%20BLM%20March%2012%202019.pdfGoogle Scholar
The M/T ‘San Pedro Pio’ Case (Switzerland v. Nigeria). (2019). ITLOS Case no 27.Google Scholar
Trail Smelter Arbitration (United States v. Canada) (1938 and 1941). III UNRIAA 1905-1982.Google Scholar
Treaty of Washington. U.S.-U.K. May 8, 1871. Washington.Google Scholar
Van Reenen, W. (1981). Rules of Reference in the new Convention on the Law of the Sea, in particular in connection with the pollution of the sea by oil from tankers. Netherlands Yearbook of International Law, 12, 3–44. doi: 10.1017/S0167676800002865CrossRefGoogle Scholar
Vienna Convention on the Law of Treaties. May 23, 1969, 1155 UNTS 321.Google Scholar
Yotova, R. (2016). The principles of due diligence and prevention in international environmental law. The Cambridge Law Journal, 75(3), 445–448. doi: 10.1017/S0008197316000672CrossRefGoogle Scholar