From Abundance to Indeterminacy: The Precautionary Principle and Its Two Camps of Custom
Transnational Environmental Law, 2014 Forthcoming
19 Pages Posted: 17 Jul 2014
Date Written: July 16, 2014
The question of what status the precautionary principle enjoys in international law has once again reared its head; most recently in the Indus Water Treaty dispute between India and Pakistan before the Permanent Court of Arbitration, where the claim for customary status was advanced by Pakistan only to be countered by India. This paper assesses the current state of play in respect to the precautionary principle and its status in international law. The paper does this by identifying what it terms the two camps of precaution, the custom camp and the no custom camp, which find themselves on opposing sides in the debate. The paper argues that the two camps are equally guilty of misunderstanding the precautionary principle and the nature of customary international law, though for different reasons. In doing so the paper relies on the concepts of ‘precaution spotting’ and what is elsewhere termed the ‘rule v. standard’ dialectic. These two concepts help us understand the different claims advanced by the two camps and alert us to the fact that customary international law is best understood if we come to accept that there are multiple ways of identifying customary international rules.
Keywords: Precautionary principle, international law, customary law, Indus Water Treaty
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