Harm to the Global Commons on Trial: The Role of the Prevention Principle in International Climate Adjudication

TY - JOUR

T1 - Harm to the Global Commons on Trial: The Role of the Prevention Principle in International Climate Adjudication

AU - Duvic-Paoli, Leslie-Anne

AU - Gervasi, Mario

PY - 2022/12/16

Y1 - 2022/12/16

N2 - Although the climate crisis is the result of a failure to prevent environmental harm, the principle of prevention has thus far remained discrete in domestic climate litigation. Similarly, in the context of international climate adjudication, reliance on the prevention principle could seem limited by two main obstacles: its anchor in bilateralism and its normative indeterminacy. This article argues that, on the contrary, the prevention principle could serve important functions in international climate adjudication. First, it shows that climate change falls within the reach of the prevention principle, which aims to protect the environment per se as a community interest. Then it explores two argumentative scenarios that are based on different constructions of the prevention principle, conceived either as a customary duty or as a general principle of international law. In both cases, recourse to the prevention principle can offer numerous advantages, which vary depending on the objectives strategically pursued.

AB - Although the climate crisis is the result of a failure to prevent environmental harm, the principle of prevention has thus far remained discrete in domestic climate litigation. Similarly, in the context of international climate adjudication, reliance on the prevention principle could seem limited by two main obstacles: its anchor in bilateralism and its normative indeterminacy. This article argues that, on the contrary, the prevention principle could serve important functions in international climate adjudication. First, it shows that climate change falls within the reach of the prevention principle, which aims to protect the environment per se as a community interest. Then it explores two argumentative scenarios that are based on different constructions of the prevention principle, conceived either as a customary duty or as a general principle of international law. In both cases, recourse to the prevention principle can offer numerous advantages, which vary depending on the objectives strategically pursued.

M3 - Article

SN - 2050-0394

VL - 32

SP - 226

JO - Review of European, Comparative & International Environmental Law

JF - Review of European, Comparative & International Environmental Law

IS - 2

ER -