The role of international case law in implementing the obligation not to cause significant harm

Mara Tignino,Christian Bréthaut

doi:10.1007/s10784-020-09503-6

Abstract

The no-harm principle is at the heart of the several international conventions focusing on the uses, allocation, management and protection of transboundary water resources. However, in the framework of these agreements, the meaning of “no-harm” remains rather vague. Through an analysis of six emblematic cases brought before the International Court of Justice and arbitration tribunals, we elucidate the various facets of this principle. In doing so, the paper identifies four facets. The first is characterized by concerns related to the protection of territorial integrity rather than those related to the protection of the environment. The second facet focuses on the principle of equitable and reasonable use of water, which testifies to the willingness to anticipate possible harms and to define conditions for cooperation between neighbouring countries. The third facet explores the use of three instruments and emphasizes their importance to clarify the very nature of harm: the conduct of environmental impact assessment, the consultation of local populations and the insurance of minimum environmental flows. The fourth facet develops a preventive perspective on harm by unravelling the duty to take appropriate measures to prevent and mitigate risks deriving from the obligations of notification and consultation.

Highlights

The “no-harm” principle lies at the heart of universal, regional and basin agreements as well as judgements and awards adopted by international courts and tribunals
We ask the following questions: (1) How can case law analysis contribute to define the “no-harm” principle? (2) Based on the analysis of international case law, how does the understanding of harm evolve over time? (3) What variables are considered in this process of definition, at what moment and for what reasons?
The lack of scientific certainty on the causality link does not preclude to establish an award for the compensation of the damage. This contribution focused on the role of international case law in shaping the “no-harm” principle

Summary

Introduction

The “no-harm” principle lies at the heart of universal, regional and basin agreements as well as judgements and awards adopted by international courts and tribunals. The paper argues that the notion of harm should be understood as the result of an evolving and incremental process that depends on contextual factors To grasp such contested and evolving nature, our analysis builds on international case law and on the contribution of courts in refining the understanding of the “no-harm” principle in the light of concrete examples. International decisions help identify international customary principles This is the case of the obligation not to cause significant harm affirmed and developed by several jurisdictions, including the International Court of Justice (ICJ) and arbitration tribunals. In addition to this identification step, dispute settlement mechanisms clarify the content of international customary principles. The implementation of the “no-harm” rule appears to be a process developed little by little, as tribunals make decisions in individual cases, and as those decisions are tested by other tribunals, by publicists and international organizations, and by states themselves

An evolution of the no‐harm principle: the analysis of six emblematic cases

Exploring the evolution of the “no‐harm” principle based on case law analysis

Conclusions