Due Diligence in Antarctic Environmental Protection

Dr Caroline Foster

Due diligence is fast-becoming an established part of international environmental law.  But what might it mean in the Antarctic setting?  In 2010 Professor Rüdiger Wolfrum (Judge of the International Tribunal for the Law of the Sea from 1996 to 2017) expressed the view that the environmental protection obligations requiring State control of private activity under the Environmental Protocol to the Antarctic Treaty are not just obligations of due diligence but rather may be fuller obligations requiring assessment of the suitability and efficiency of the measures taken.  Almost 10 years later, it is time to revisit this question.  Is or should more than due diligence be required of States under the Environmental Protocol?  This paper addresses these questions in light of international legal developments since 2010, reviewing decisions in the International Court of Justice as well as under the United Nations Convention on the Law of the Sea.


Dr Caroline Foster is Associate Professor at the Faculty of Law, University of Auckland, New Zealand. Caroline’s most recent monograph on international environmental disputes, scheduled for publication by Oxford University Press in 2020, focusses on “interstitial rubrics” in the sense of concepts brought into play in international courts and tribunals to help define the balance of legal interests between the parties implicit in the applicable legal rules.  Her prior work  Science, Proof and Precaution in International Courts and Tribunals: Expert Evidence, Burden of Proof and Finality (Cambridge University Press, 2011) was cited by Judges Simma and Al-Khasawneh in the International Court of Justice in the Case Concerning Pulp Mills (Argentina v Uruguay).

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