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Towards a New Paradigm of Inter-State Relations

This is the most accepted formulation in general discussions about the concept of precaution in international law. However, it raises some difficult issues, such as the determination of the concepts of ‘serious or irreversible damage’, ‘scientific uncertainty’ or the distinction between the ‘duties’ of States ‘according to their capabilities’. Faced with such uncertainty, one would have expected that international courts and tribunals clarify the contours of the concept of precaution. Yet, the case law on this question remains divided. Indeed a survey of the many decisions relevant to this question does not offer a clearer picture. While the Dispute Settlement Body of the WTO (‘DSB’) seems reluctant to admit the existence of a precautionary principle in general international law,64 other international courts such as the European Court of Human Rights (‘ECtHR’) or the International Tribunal for the Law of the Sea (‘ITLOS’) have given a more favourable reception to the principle. The position of the ICJ is somewhat between these two extremes. In the Pulp Mills case, Argentina argued that customary international law recognised the existence of a precautionary principle the effect of which was to shift the burden of proof to Uruguay. However, the ICJ did not follow Argentina’s position, and it only observed ‘that while a precautionary approach may be relevant in the interpretation and application of the provisions of the Statute, it does not follow that it operates as a reversal of the burden of proof’. 65 This view can be contrasted with that of the ECtHR in its recent jurisprudence. Reversing a long-standing