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‘Deconstructing the Precautionary Principle’

More recently, in the Pulp Mills case, the ICJ further confirmed this principle and spelled out its origins in the no harm principle.37 In the latter case, the Court also clarified the contours of the obligation of ‘due diligence’ that flows, for each State, from the prevention principle. Although the Court’s analysis relates to the provisions of the Statute of the River Uruguay, its reasoning suggests that the prevention principle requires (i) an obligation of conduct and, more particularly, of co-operation for the implementation and application of appropriate measures for the preservation of the environment,38 as well as (ii) the obligation to conduct an environmental impact assessment where the proposed activity is likely to have a significant adverse impact in a transboundary context, especially with respect to a shared resource. 39 This understanding has been taken up in the advisory opinion the Seabed Chamber of the International Tribunal on the Law of the Sea (‘ITLOS’) on the Responsibilities and Obligations of States sponsoring Persons and Entities with respect to Activities in the Area.40 The Seabed Chamber specifically refers to paragraph 187 of the Pulp Mills decision in order to characterise the obligation ‘to ensure’ arising from Article 139(1) of UNCLOS as an obligation ‘of conduct’ or ‘due diligence’. 41 This obligation is subsequently assimilated to the one arising from Article 194(2) of UNCLOS42 and, more importantly for present purposes, the meaning of ‘due diligence’ is further specified. Thus, according to the Seabed Chamber, the ‘due diligence’ obligation encompasses: (i) the obligation of States to adopt appropriate measures and ensure that they are reasonably enforced;43 (ii) the obligation (based both on the UNCLOS and on customary international law) to conduct an environmental impact assessment;44 and (iii) the obligation to apply the precautionary approach not only as a requirement of the applicable regulations of the Seabed Authority but also as a component of the ‘due diligence’ obligation and, possibly, of customary international law.4