INTERNATIONAL LAW, Sixth edition

international environmental law 855
control of sources of harm, so that responsibility is engaged for breaches
of obligations specified in the particular instruments. 50
The test of due diligence is in fact the standard that is accepted generally
as the most appropriate one. 51 Article 194 of the Convention on
the Law of the Sea, 1982, for example, provides that states are to take ‘all
measures...thatarenecessary to prevent, reduce and control pollution
of the marine environment from any source, using for this purpose the
best practicable means at their disposal and in accordance with their capabilities’.
Accordingly, states in general are not automatically liable for
damage caused irrespective of all other factors.However,itisratherless
clear what is actually meant by due diligence. In specific cases, such as the
Convention on the Law of the Sea, 1982, for example, particular measures
are specified and references made to other relevant treaties. In other cases,
the issue remains rather more ambiguous. 52 The test of due diligence undoubtedly
imports an element of flexibility into the equation and must
be tested in the light of the circumstances of the case in question. States
will be required, for example, to take all necessary steps to prevent substantial
pollution and to demonstrate the kind of behaviour expected of
‘good government’, 53 while such behaviour would probably require the
establishment of systems of consultation and notification. 54 It is also important
to note that elements of remoteness and foreseeability are part
of the framework of the liability of states. The damage that occurs must
have been caused by the pollution under consideration. The tribunal in
50 See e.g. article 1 of the London Convention on the Prevention of Marine Pollution by
Dumping of Wastes, 1972; article 2 of the Convention on Long-Range Transboundary
Air Pollution, 1979; article 2 of the Vienna Convention for the Protection of the Ozone
Layer, 1985 and articles 139, 194 and 235 of the Convention on the Law of the Sea,
1982; articles 7 and 8 of the Convention for the Regulation of Antarctic Mineral Resources
Activities, 1988 and article 2 of the Convention on the Protection and Use of Transboundary
Watercourses and International Lakes, 1992. See also the Commentary by the International
Law Commission to article 7 of the Draft Articles on the Law of the Non-Navigational
Uses of International Watercourses, Report of the International Law Commission, 46th
Session, 1994, pp. 236 ff.
51 This is the view taken by the ILC in its Commentary on the Draft Articles on Prevention
of Transboundary Harm from Hazardous Activities, 2001, Report of the ILC on its 53rd
Session, A/56/10, p. 392. See also e.g. Handl, ‘State Liability’, pp. 539–40; Boyle, ‘Nuclear
Energy’, p. 272, and Birnie and Boyle, International Law and the Environment, pp. 112 ff.
52 See e.g. the Long-Range Transboundary Air Pollution Convention, 1979.
53 I.e. the standard of conduct expected from a government mindful of its international
obligations: see R. J. Dupuy, ‘International Liability for Transfrontier Pollution’, in Bothe,
Trends in Environmental Policy and Law, pp. 363, 369.
54 See Responsibility and Liability of States in Relation to Transfrontier Pollution, an OECD
Report by the Environment Committee, 1984, p. 4.