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Alternatives to State Responsibility in the Allocation of Transboundary Environmental Cost

Regarding, first, treaty law, there are more and more treaties incorporating references to precaution in its various forms.54 The first treaty regime that explicitly referred to the concept of precaution is the one established by the Vienna Convention for the Protection of the Ozone Layer of 1985,55 and further developed by its Montreal Protocol of 1987.56 From 1990 onwards, the number of treaties referring to precaution has increased. Such references may indeed be found not only in the preamble of the CBD,57 but also in the body of the UNFCCC, in particular Article 3.3, which provides that


he Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures. More recently, the concept of precaution has been incorporated in the text of many other multilateral environmental agreements (‘MEAs’), such as the 1995 Agreement on Straddling Fish Stocks (‘precautionary approach’),58 the 2000 Biosafety Protocol to the CBD (‘precautionary approach’),59 or the 2001 Stockholm Convention on Persistent Organic Pollutants (‘precaution concern/ precautionary approach’).60 Moreover, the concept of precaution has also featured, to varying degrees, in regional environmental treaties61 and even in treaties governing other matters