STATE RESPONSIBILITY AND CORPORATE ACCOUNTABILITY FOR ENVIRONMENTAL HARM: REFLECTIONS ON DUE DILIGENCE FROM AN ASIAN PERSPECTIVE
DOI :
https://doi.org/10.5102/1k7chh05Mots-clés :
State responsibility, corporate accountability, due diligence, environmental harm, corporate actors, International LawRésumé
The article examines the relationship between State responsibility and corporate accountability for environmental harm under international law, with particular emphasis on the evolving standard of due diligence. It addresses the accountability gap that arises when environmental harm is caused by corporate actors but cannot be directly attributed to State organs under the traditional doctrine of State responsibility. This issue is particularly significant in the Asian context, where many developing countries face the challenge of balancing economic development and investment attraction with sustainable environmental protection. The article aims to analyse how international legal frameworks on State responsibility conceptualise States’ obligations to regulate, prevent, and respond to environmental damage caused by private corporate activities. From this perspective, the paper begins by examining State responsibility for corporate-related environmental harm under international law, focusing on State obligations to prevent, regulate, and remedy environmental harm, as well as State responsibility for environmental harm caused by corporate and other non-State actors. It then analyses due diligence as a bridge between state responsibility and corporate accountability. Finally, it considers the implications of due diligence for corporate accountability in the Asian context. T The article concludes that due diligence may help reduce accountability gaps in cases where environmental harm is generated by corporate activity but facilitated by weak regulation, inadequate supervision, or ineffective enforcement.Références
REFERENCES
Advisory Opinion on Obligations of States in Respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025)
Barnidge R, ‘The Due Diligence Principle Under International Law’ (2006) 8 International Community Law Review 81
Bonnitcha J and McCorquodale R, ‘The Concept of “Due Diligence” in the UN Guiding Principles on Business and Human Rights’ (2017) 28 The European Journal of International Law
Dam-de Jong D and Wolters S, ‘Through the Looking Glass: Corporate Actors and Environmental Harm beyond the ILC’ (2020) 10 Goettingen Journal of International 111
Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration) (16 June 1972) UN Doc A/CONF.48/14/Rev.1
Gailhofer P, ‘Functions and Objectives of Corporate Liability for Transboundary Environmental Harm’ in Peter Gailhofer, David Krebs, Alexander Proelss, Kirsten Schmalenbach, Roda Verheyen (eds), Corporate Liability for Transboundary Environmental Harm: An International and Transnational Perspective (Springer 2023)
Hessbruegge JA, ‘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
International Law Association (ILA), ‘International Law Association (ILA) Study Group on Due Diligence in International Law, First Report’ (2014) First Report <https://www.ila-hq.org/en_GB/documents/first-report-washington-dc-2014> accessed 15 May 2026
International Law Association (ILA), ‘International Law Association (ILA) Study Group on Due Diligence in International Law, Second Report’ (2016) <https://www.ila-hq.org/en_GB/documents/draft-study-group-report-johannesburg-2016> accessed 15 May 2026
International Law Commission (ILC), ‘Articles on Responsibility of States for Internationally Wrongful Acts (2001) UN Doc A/56/10, Ch IV.E.1’ (2001)
International Law Commission (ILC), ‘Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, with Commentaries’ (2001) II(2) Yearbook of the International Law Commission 146
Knox, JH, ‘Constructing the Human Right to a Healthy Environment’ (2020) 16 Annual Review of Law and Social Science 79
Knox, JH, ‘Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment’ (Human Rights Council 2012) Preliminary Report A/HRC/22/43 <https://www.ohchr.org/sites/default/files/Documents/HRBodies/HRCouncil/RegularSession/Session22/A-HRC-22-43_en.pdf> accessed 15 May 2026
Lewis B, ‘Environmental Rights or a Right to the Environment? Exploring the Nexus Between Human Rights and Environmental Protection’ (2012) 8 Macquarie Journal of International and Comparative Environmental Law 36
Malaihollo M, ‘Due Diligence in International Environmental Law and International Human Rights Law: A Comparative Legal Study of the Nationally Determined Contributions under the Paris Agreement and Positive Obligations under the European Convention on Human Rights’ (2021) 68 Netherlands International Law Review 121
McCorquodale R and Simons P, ‘Responsibility Beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law’ (2007) 70 Modern Law Review 523
McIntyre O, ‘The Current State of Development of the No Significant Harm Principle: How Far Have We Come?’ [2020] International Environmental Agreements: Politics, Law and Economics 601
Pisillo-Mazzeschi R, ‘The Due Diligence Rule and the Nature of the International Responsibility of States’ (1992) 35 German Yearbook of International Law 9
Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law (Advisory Opinion) (International Tribunal for the Law of the Sea, Case No 31, 21 May 2024)
Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (Advisory Opinion) (International Tribunal for the Law of the Sea, Case No 21, 2 April 2015) ITLOS Reports 2015
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) (Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, Case No 17, 1 February 2011) ITLOS Reports 2011
Rio Declaration on Environment and Development (14 June 1992) UN Doc A/CONF.151/26 (Vol I)
Roeben V and Guo J, ‘The Result-Oriented Due Diligence Obligation in the ITLOS Climate Change Advisory Opinion: Developments and Implications’ [2026] Review of European Comparative & International Environmental Law 105
Rudall J, Responsibility for Environmental Damage Principles of International Environmental Law Series (Edward Elgar Publishing 2024)
Schmalenbach K, ‘States Responsibility and Liability for Transboundary Environmental Harm’ in Peter Gailhofer, David Krebs, Alexander Proelss, Kirsten Schmalenbach, Roda Verheyen (eds), Corporate Liability for Transboundary Environmental Harm: An International and Transnational Perspective (Springer 2023)
UNGA Res 76/300, ‘The human right to a clean, healthy and sustainable environment’ (28 July 2022) UN Doc A/RES/76/300
Cases
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
Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14
Case Concerning the Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v Spain) [1970] ICJ Rep 3
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) (Judgment) [2015] ICJ Rep 665
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) (Judgment) [2015] ICJ Rep 665
Corfu Channel (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4
Gabčíkovo–Nagymaros Project (Hungary v Slovakia) (Judgment) [1997] ICJ Rep 7
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14
The Case of the SS Lotus (France v Turkey) [1927] PCIJ (ser A) No 10
The South China Sea Arbitration (Philippines v China) (Award) (Permanent Court of Arbitration, Case No 2013-19, 12 July 2016)
Trail Smelter Case (United States v Canada), Awards of Arbitral Tribunal [1941] 3 Reports of International Arbitral Awards
Wipperman Case (United States v Venezuela) [1887] 3 Moore International Arbitrations 2655
International Conventions
Convention on Environmental Impact Assessment in a Transboundary Context (adopted 25 February 1991, entered into force 10 September 1997) 1989 UNTS 309
Convention on the Protection and Use of Transboundary Watercourses and International Lakes (adopted 17 March 1992, entered into force 6 October 1996) 1936 UNTS 269
Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December 1997, entered into force 16 February 2005) 2303 UNTS 162
Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) TIAS 16-1104
United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3
United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107
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