1 Obligations of prevention in international law
(a) Obligations of prevention in the framework of State responsibility for internationally wrongful acts
Obligations of prevention or obligations to prevent the occurrence of a given event in the framework of State responsibility for internationally wrongful acts correspond to obligations of result. This is the reason why their breach occurs at the moment when the event occurs and may constitute a continuing breach to which, inter alia, an obligation of cessation corresponds.
In the ILC work concerning the responsibility of States for internationally wrongful acts, neither the distinction made on first reading between obligations of conduct and obligations of result2 nor draft article 23 concerning obligations of prevention3 were retained on second reading. In fact, these provisions do not really belong to secondary rules regarding State responsibility because they concern the scope and meaning of primary rules.4
Certain elements of draft article 23 adopted on first reading are however taken up in the commentary to ARSIWA article 12 on the existence of a breach of an international obligation, which in referring to the character of the obligation indirectly reflects the distinction between obligations of conduct and obligations of result.5 Moreover, article 14(3), establishing that ‘the breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation’, takes up the essential idea of draft article 23 on the ‘breach of an international obligation to prevent a given event’, and especially draft article 26 adopted on first reading which concerned the ‘moment and duration of the breach of an international obligation to prevent a given event’.6
References(p. 523) Concerning the examples of obligations of prevention, it must be emphasized that in the field of the law of diplomatic relations, the special obligation of the receiving State to take all appropriate measures to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity, does not correspond to the obligations of prevention envisaged in article 14(3). Accordingly the interpretation given to article 22(2) of the Vienna Convention on Diplomatic Relations7 in the commentary to draft article 23 adopted on first reading8 was with good reason criticized during the Second Reading of the text. The breach of such an obligation, the importance of which was highlighted by the International Court in the Tehran Hostages case,9 exists even if the event to be prevented, (that is, the ‘intrusion, damage or disturbance) has not yet occurred and may never occur’.10
The obligation to prevent transboundary damage caused by air pollution contained in the Trail Smelter case is a relevant example of an obligation of prevention addressed by ARSIWA article 14(3),11 as is article 5 of the Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, according to which ‘a neutral Power must not allow any of the acts referred to in Articles 2 to 4 to occur on its territory’;12 it includes for example the obligation to prevent the movement of troops or convoys of either munitions of war or supplies across the territory of a neutral Power.
Article 14(3) focuses on the temporal dimension of the breach of the obligation of prevention of a given event. It is a due diligence obligation, requiring States to take all reasonable or necessary measures to avoid the occurrence of a given act, which is not a guarantee that the event will not occur. Thus the breach of an obligation of prevention occurs only if the event occurs. Moreover, the breach may constitute a continuing wrongful act, on condition that the breach only continues if the State is bound by the obligation for the period throughout which the event continues and remains not in conformity with the State’s international obligations.13
Finally, article 3 of the resolution of the Institut de Droit international on ‘Responsibility and Liability under International Law for Environmental Damage’14 may be quoted, insofar as it maintains that ‘when due diligence is utilized as a test for engaging responsibility it is appropriate that it be measured in accordance with objective standards relating to the conduct to be expected from a good government and detached from subjectivity’, a matter which was not addressed by the ILC.
(b) Obligations of prevention in the framework of activities not prohibited by international law
Contrary to the obligations of prevention in the framework of State responsibility for internationally wrongful acts under ARSIWA article 14(3), where the nature of such obligations of result as primary or secondary rules of international law is not entirely clear, the obligations to take measures of prevention in the field of activities not prohibited by References(p. 524) international law are without doubt primary rules of international law,15 imposing an obligation of conduct.16
These obligations have developed in particular in the field of environmental law,17 on the basis of the principle of the use of territory without causing harm to others (sic utere tuo ut alienum non laedas).18 Since they are obligations of conduct, the breach of obligations to take measures of prevention for the protection of the environment may also occur in the absence of any damage to the environment. If the two regimes of prevention discussed here may overlap, then the second regime should seek to identify the concrete measures which States have to take in order to protect the environment and public health, independently from the occurrence of damage to the environment but also when such harm occurs.
It is in this sense that the ILC, within its work on international liability for injurious consequences arising out of acts not prohibited by international law, adopted the draft Articles on Prevention of Transboundary Harm from Hazardous Activities.19 The scope of application of these draft articles is subject to several limitations. First, it applies only to transboundary situations. Second, it concerns only hazardous activities or substances not prohibited by international law, which must involve a known risk of damage.
Pursuant to article 3 of the draft, States must take measures to prevent transboundary damage, which clearly confirms that it concerns obligations of conduct. The appropriate measures to be taken must prevent the damage or reduce the risk of its occurrence as much as possible. As for the content of the obligations, the essential elements are the following:20 the State of origin must undertake a risk assessment of the pertinent activity through procedures including any environmental impact assessment (article 7 on risk assessment); and if the assessment in question reveals a risk of causing significant transboundary damage, there is an obligation to notify the risk and the assessment to the interested authorities (article 8 on notification and information). These rules are the only obligations envisaged in this project which seem to be clearly identifiable as customary international law.21 Another obligation which may be considered part of customary international law is the obligation of the State of origin to take into account the objections of the interested parties, which can be found in article 9 of the draft on consultations on preventive measures, References(p. 525) corresponding to the general obligation to negotiate in international law22 and to solve international disputes by peaceful means. In addition, the draft refers to a new tendency concerning information and participation of the public in the decision-making process, including access to judicial procedures, expressed in articles 13 and 15.23 This participation of the public, originally provided for in principle 10 of the Rio Declaration, can now be found in a certain number of international texts concerning environmental law.24
(c) Challenges and the insufficiencies of the regimes of prevention
Current human activities which lead to the multiplication and diversification of environmental risk cannot be managed in a completely satisfactory way through the existing regimes of prevention. Three central causes for this phenomenon can be identified: the intensification of activities having an impact on the environment; the increase of their qualitative and quantitative impact on the environment; and the absence of exact knowledge of the physical and technological phenomena of the environment. The extent of the damage, the speed of technological developments, and the intensity of the use of the environment all increase the probability of irreversible damages unacceptable to society.
The most efficient way to deal with these problems would be to prohibit certain activities which may have a prejudicial effect on the environment and public health. But despite the threat for future generations, in a great number of cases the prohibition of these activities is not acceptable for economic reasons. The point is to distinguish and find a balance between economic interests, scientific uncertainty and risk. The idea of precaution is aimed at managing scientific uncertainty. Thus, if numerous interacting natural phenomena are still insufficiently known and even escape human knowledge, at least partially, it follows from principle 15 of the Rio Declaration that ‘[w]here 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’.25
Precaution is thus a third facet which comes into play when there is no obligation of prevention and in the absence of known risk, the regime of measures of prevention is not applicable. The legal regime of precaution, as far as it exists, is aimed at adjusting the insuffi ciencies of the regimes of prevention. The diversity of these regimes in international law reflects a complex reality which entails a necessary flexibility. Thus the relationship between the regime of obligations of prevention in the law of State responsibility and that of obligations to take measures of prevention illustrates the possible transformation of secondary rules into primary rules, depending on their function. In the same vein, the boundary between lawful and unlawful activities is evolving. In fact, since scientific uncertainty is References(p. 526) a momentary situation which can evolve in one direction or the other, an activity may in the future turn out to be devoid of any significant risks, whereas an uncertain risk may in the future become certain.26 It is therefore necessary to keep in mind that these developments may justify a change in the legal regime of an activity, which may even lead to the prohibition of the activity itself.
1 Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2) 146–148. Noted by the General Assembly in GA Res 62/68, 6 December 2007.
2 See draft arts 20 and 21, in Report of the ILC, 29th Session, ILC Yearbook 1977, Vol II(2), 11–30.
3 Report of the ILC, 30th Session, ILC Yearbook 1978, Vol II(2), 81–87.
4 See J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, paras 81–92. For the ILC decision to eliminate all provisions on the issue: Report of the ILC, 51st Session, 1999, A/54/10, 59–61 (paras 14 5–172).
5 Commentary to art 12, paras 11–12.
6 ARSIWA, art 14(3) is a fusion of art 24 on the ‘moment and duration of the breach of an international obligation by an act of the State not extending in time’ and art 25(1) on the ‘moment and duration of the breach of an international obligation by an act of the State extending in time’ and art 26. For the text of these articles see: Report of the ILC, 30th Session, ILC Yearbook 1978, Vol II(2), 81–97.
8 Report of the ILC, 30th Session, ILC Yearbook 1978, Vol II(2), 81–82 (para 3).
9 United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p 3, 30 (para 61).
10 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 86.
11 Trail Smelter (United States, Canada) (1941), 3 RIAA 1905; see also the Commentary to art 14, para 14.
13 Commentary to art 14, para 14.
15 On the distinction between the primary norms on liability and the secondary norms on international responsibility see C Dominicé, ‘International Responsibility and Liability: Comments on the Commission’s Approach’, in United Nations (ed), The International Law Commission Fifty Years After: An Evaluation (New York, United Nations, 2000), 30, 32–33.
16 On these types of obligations, see C-W Jenks, ‘Liability for Hazardous Activities in International Law’ (1966-I) 117 Recueil des cours 99; C Caubet, ‘Le droit international enquête d’une responsabilité pour les dommages résultant d’activités qu’il n’interdit pas’ (1983) 29 AFDI 99; K Zemanek, ‘La responsabilité des Etats pour faits internationalement illicites ainsi que pour faits internationalement licites’, in P Weil (ed), Responsabilité internationale (Parism, Pédone, 1987), 3.
17 See C Dominicé, ‘Le principe de prévention en droit international de l’environnement’ (1998–3) ZEuS 329.
18 See P-M Dupuy, La responsabilité des Etats pour les dommages d’origine technologique et industrielle (Paris, Pédone, 1976), 30–36.
19 Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2) 146–148. Noted by the General Assembly in GA Res 62/68, 8 January 2008.
20 Cf especially art 13 of the resolution of the Institut de Droit International on the Responsibility and Liability under International Law for Environmental Damage, Strasbourg Session, 1997.
21 See the numerous conventional references to these obligations as well as the State practice recalled in the commentary to the two articles in question, in Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2), 153–155 and 157–160.
22 See North Sea Continental Shelf cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v the Netherlands), Judgment, ICJ Reports 1969, p 3, 46–48 (paras 85–87).
23 See para 5 of the Commentary to both arts 13 and 15 of the draft Articles on Prevention of Transboundary Harm from Hazardous Activities, Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2) 165, 167–168. For an example in judicial practice of the different obligations including information and participation of the public and its access to judicial procedures, see in particular Tatar v Romania (App No 67021/01), ECHR, Judgment, 27 January 2009, paras 88 and 112–124.
24 See in particular the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 25 June 1998, 38 ILM 517.
25 United Nations Conference on Environment and Development: Rio Declaration on Environment and Development (1992) 31 ILM 874. See G Hafner, ‘Le contexte particulier de la responsabilité dans le droit international de l’environnement’, in P Weil, P-M Dupuy, and C Leben (eds), Droit International 5 (Paris, Pedone, 2001), 7, 31.
27 Hague Convention (VIII) relative to the Laying of Automatic Submarine Contact Mines, 18 October 1907, arts 3–4; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, 12 August 1949, arts 88, 127, 137.
28 Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration), (1972) 11 ILM 1416.
29 EF Gollier and N de Sadeleer, Le principe de précaution (Paris, PUF, 2008), 6ff; L González Vaqué, L Ehring, and C Jacquet, ‘Le principe de précaution dans la législation communautaire et nationale relative à la protection de la santé’ (1999–1) RMUE 79, 85.
30 Loi Barnier No 95-101, 2 February 1995, from which the current article L 110-1 of the Environmental Code derives. For a recent codification in Italy (art 301 of the Italian Environment Code) see L Butti, The Precautionary Principle in Environmental Law (Milan, Giuffrè, 2007), 24, 28. As to the application of this principle in US legislation and court practice see in particular N Ashford, ‘The Legacy of the Precautionary Principle in US Law: The Rise of Cost Benefit Analysis and Risk Assessment as Undermining Factors in Health, Safety and Environmental Protection’, in N de Sadeleer (ed), Implementation the Precautionary Principle: Approaches from the Nordic Countries, the EU and the United States (London, Earthscan, 2006), 352–378.
31 Art 5 of the Environmental Charter of 2004 concerns the principle of precaution.
33 ‘Our Common Future’, UNGA Doc A/42/427, 4 August 1987, Annex I.
35 Second International Conference on the Protection of the North Sea (London Declaration) 1987 (1988) 27 ILM 835, VII, XI.
36 Bergen Declaration on Sustainable Development in the ECE Region, 16 May 1990, A/CONF.151/ PC/10, reprinted in (1990) 1 Yearbook Int’l Envtl L 430 (para 7).
37 G Loibl, ‘The precautionary principle in international law’, in E Freytag, T Jakl, G Loibl, & M Wittmann (eds), The Role of Precaution in Chemicals Policy (Vienna, Favorita papers of the Diplomatic Academy of Vienna, 2002), 13, 14.
38 (1991) 30 ILM 773, art 4(3)(f ).
39 (1992) 31 ILM 1312, art 2(5)(a).
40 (1992) 1771 UNTS 107, art 3(3).
41 (1992) 1760 UNTS 79, preamble para 9.
42 1867 UNTS 493, art 5(7).
43 (1976) 15 ILM 290, art 4(3)(a).
44 (1993) 32 ILM 1069, art 2(2)(a).
45 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 1995 (1996) 34 ILM 1542, art 6.
46 4 December (2000) 2226 UNTS 257, preamble, arts 1, 10(6), 11(8).
47 (2001) 40 ILM 532, preamble, arts 1, 8(7) and 8(9), Annex C part V(B).
49 (1998) 37 ILM 56, art 174(2).
51 2007 OJ (C306) 1, art 191(2).
54 L Lucchini, ‘Le principe de précaution en droit international de l’environnement: ombres plus que lumières’ (1999) 45 AFDI 710, 716–721.
55 See also A Trouwborst, Precautionary Rights and Duties of States (Leiden, Martinus Nijhoff, 2006), 37–158 and L Boisson de Chazournes, ‘Precaution in International Law: Reflection on its Composite Nature’, in TM Ndiaye and R Wolfrum (eds), Law of the Sea, Environmental Law and Settlement of Disputes, Liber Amicorum Judge Thomas A Mensah (Leiden, Nijhoff, 2007), 21, 21–24.
58 See a discussion of the question, for example, in PW Birnie, AE Boyle, & C Redgwell, International Law and the Environment (Oxford, OUP, 2009), 158–159, 164.
59 See 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, ICJ Reports 1995, 288, 298 (para 34).
60 P Sands, Principles of International Environmental Law (2nd edn, Cambridge, CUP, 2003), 273.
61 J Cazala, ‘Principe de précaution et procédure devant le juge international’, in C Leben & J Verhoeven (eds), Le principe de précaution. Aspects de droit international et communautaire (Paris, Editions Panthéon-Assas, 2002), 151, 160–178.
62 J Verhoeven, ‘Principe de précaution, droit international et relations internationales : quelques remarques’ (2002) 3 AFRI 250, 258–260.
63 See eg L Boisson de Chazournes, ‘Precaution in International Law: Reflection on its Composite Nature’, in TM Ndiaye & R Wolfrum (eds) Law of the Sea, Environmental Law and Settlement of Disputes, Liber Amicorum Judge Thomas A Mensah (Leiden, Nijhoff, 2007), 21–34, 25.
64 See eg Principle 15, Rio Declaration on Environment and Development (1992) 31 ILM 874, or the 2000 Protocol of Cartagena, 2226 UNTS 257.
65 See the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), Paris, 22 September 1992, 32 ILM 1069.
66 L Lucchini, ‘Le principe de précaution en droit international de l’environnement: ombres plus que lumières’ (1999) 45 AFDI 710, 716–721.
67 M Fitzmaurice, Contemporary Issues in International Environmental Law (Northampton, Edward Elgar Publishing, 2009), 19.
68 P Martin-Bidou, ‘Le principe de précaution en droit international de l’environnement’ (1999) 3 RGDIP 631, 661. See also PW Birnie, AE Boyle & C Redgwell, International Law and the Environment (Oxford, OUP, 2009), 164.
70 P-M Dupuy, ‘Le principe de précaution, règle émergente du droit international général’, in C Leben & J Verhoeven (eds), Le principe de précaution. Aspects de droit international et communautaire (Paris, Editions Panthéon-Assas, 2002), 95, 108.
71 G-J Martin, ‘Apparition et définition du principe de précaution’ (2000) 239 Petites Affiches 7, 9.
72 P Sands, Principles of International Environmental Law (2nd edn, Cambridge, CUP, 2003), 279.
73 See, especially, A Trouwborst, Evolution and Status of the Precautionary Principle in International Law (The Hague, Kluwer Law International, 2002), 260–286.
74 J Dutheil de la Rochère, ‘Le principe de précaution dans la jurisprudence communautaire’, in C Leben & J Verhoeven (eds), Le principe de précaution. Aspects de droit international et communautaire (Paris, Editions Panthéon-Assas, 2002), 193, 195–201.
75 Cf P Sands, Principles of International Environmental Law (2nd edn, Cambridge, CUP, 2003), 273–279. See also Pulp Mills on the River Uruguay (Argentina v Uruguay), pending before the ICJ.
76 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, ICJ Reports 1995, p 288, 290–291 (para 6).
77 See P Sands, ‘L’affaire des Essais nucléaires II (Nouvelle-Zélande c. France): Contribution de l’instance au droit international de l’environnement’ (1997) 101 RGDIP 447, 470–473.
78 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, 41–42 (para 54). See M Fitzmaurice, Contemporary Issues in International Environmental Law (Northampton, Edward Elgar Publishing, 2009), 20ff.
79 Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan), Provisional Measures, ITLOS, Cases No 3–4, 27 August 1999, 117 ILR 148, 163–164 (paras 77–79). See M Fitzmaurice, Contemporary Issues in International Environmental Law (Northampton, Edward Elgar Publishing, 2009), 10ff.
80 See Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan), Provisional Measures, ITLOS, Cases No 3–4, 27 August 1999, 117 ILR 148, 179 (Separate Opinion of Judge Treves, para 8), 186–187 (Separate Opinion of Judge Shearer).
81 The MOX Plant Case (Ireland v United Kingdom), Provisional Measures, ITLOS, Case No 10, 3 December 2001, 126 ILR 259, 277 (para 84). See M Fitzmaurice, Contemporary Issues in International Environmental Law (Northampton, Edward Elgar Publishing, 2009), 10ff.
82 Tatar v Romania (App No 67021/01), ECHR, Judgment, 27 January 2009, paras 109 and 120.
84 EC—Hormones, WTO Appellate Body, EC Measures Concerning Meat and Meat Products (Hormones), WT/ DS48/AB/R, 16 January 1998, paras 121–124; See also EC—Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R, 29 September 2006, Panel Report (Part III), 339–341 (paras 7.88–7.89).
85 See M Iynedjian, ‘Le principe de précaution en droit international public’ (2000) 3 RDISPD 247, 255; G Marceau, ‘Le principe de précaution et les règles de l’Organisation mondiale du commerce (OMC)’, in C Leben & J Verhoeven (eds), Le principe de précaution. Aspects de droit international et communautaire (Paris, Editions Panthéon-Assas, 2002), 131, 134–136; J Cheyne, ‘Gateways to the Precautionary Principle in WTO Law’ (2007) 19 Journal of Environmental Law 155; C Magee, ‘Using Chevron as a Guide: Allowing for the Precautionary Principle in WTO Practices’ (2009) 21 Georgetown International Environmental Law Review 615.