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The Law of Sustainable Development

Similarly, the ITLOS noted on two occasions that States must ‘act with prudence and caution’ 67 or that ‘prudence and caution’ require States to cooperate to protect the environment,68 and it has more recently embraced the precautionary approach in its Advisory Opinion on the Area:

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he Chamber observes that the precautionary approach has been incorporated into a growing number of international treaties and other instruments, many of which reflect the formulation of Principle 15 of the Rio Declaration. In the view of the Chamber, this has initiated a trend towards making this approach part of customary international law.69 At the European Union level, the Court of First Instance (‘CFI’) and the European Court of Justice (‘ECJ’) have clearly recognised the normative basis of the precautionary principle as a general principle of European law.70 These differences in the recognition of the concept of precaution can be explained, among other factors, by the explicit mention of the precautionary principle in the Treaty on the Functioning of the European Union71 and, beyond the EU framework, by the nature of the cases that different courts are likely to handle. Indeed, both the ECtHR and the ITLOS are, by their very mandate, likely to hear cases where compliance with certain environmental norms is a major issue, either in connection with the application of human right provisions with environmental content or of the UNCLOS provisions protecting the marine environment. By contrast, in international economic law, environmental protection is still perceived as a limitation to free trade and investment. This divide makes the position of the ICJ all the more important, as the guardian of general international law.