1. Prevention in a nutshell
What is the principle of preventive approach?
This principle requires the states to prevent damage to the environment and to reduce, limit or control activities which might cause or risk such damage (“Sand, Principles of International Environmental Law”)
Preventative logic, which may be captured in the common-sense adagio that prevention is better than cure, has been a pervasive feature of environmental law and policy as it has formed the foundation of many international and national legal instruments aimed at environmental protection.
The preventative principle, however, is a predominantly environmental concept.
Curative measures may ...view middle of the document...
Accordingly, States find themselves bound by a due diligence requirement to prevent transboundary pollution. In other words, the State must have failed to show due diligence if it is to be held liable.
However, customary law does not specify what diligent conduct entails or what concrete measures States are required to take in order to fulfill their duties under Rio’s Principle 2.
Indeed, the obligation to prevent trans boundary harm is subject to a variety of interpretations as to what preventive actions may be required of a State, as well as what amount of damage is to be prevented.
Not defined in the UNFCCC
While the principle is not included as the principle within Article 3 of the UNFCCC, the principle of preventative action is encapsulated within the objective clause within Article 2, which requires the parties to prevent anthropocentric interference with the climate system.
The 1972 Stockholm Declaration
The principle constitutes a traditional and fundamental tenet of international environmental law and was enshrined in the 1972 Stockholm Declaration as the obligation of States ‘to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction’.
Obligations of the Prevention principle
- Not to cause significance damage to the environmental territorially
An obligation of prevention also emerges from the international responsibility not to cause significant damage to the environment territorially, but the preventive approach seeks to avoid harm irrespective of whether or not there is transboundary impact or international responsibility.
- Prior Assessment of potentially harmful activities
One obligation that flows from the concept of prevention is prior assessment of potentially harmful activities.
Preventive mechanisms also include monitoring, notification, and exchange of information, all of which are obligations in almost all recent environmental agreements.
Legal application of the principle
Reference the the MOX Plant Case:
- Conflict between Ireland and the UK
- Plant designed to recycle the plutonium- during processing of nuclear energy
- Ireland contested the project
- Ireland’s request: Access of information from UK about the plant
- Ireland+ UK= Parties to the
• United Nations Convention on the Law of the Sea (UNCLOS), and
• the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention)
- In 2001, Ireland applied to the International Tribunal for the Law of the Sea (ITLOS)
- As a result:
• the ITLOS prescribed a provisional...