Corfu Channel, and the Principle of Prevention
Chapter Sixteen
Syllabus topic 1, "Environmental Federalism and International Order"
Pages 48 to 50 of 663
In one line
A case about naval mines in 1949 produced the general form of the Trail Smelter rule, and in 2010 the International Court of Justice named that sentence as the origin of the customary principle of prevention.
In exam wording: the principle of prevention is a customary rule requiring every State to use due diligence to ensure that activities within its jurisdiction and control do not cause damage to the environment of other States or of areas beyond national jurisdiction; its origin is the obligation stated in Corfu Channel not to allow knowingly one's territory to be used for acts contrary to the rights of other States.
Why this chapter follows Trail Smelter
Because Trail Smelter was about fumes, and one arbitral award about fumes is a thin foundation for a general principle. What made the rule general was that the Court stated it, in a case that had nothing to do with the environment at all.
The case
Facts. Corfu Channel (United Kingdom v. Albania), ICJ Reports 1949, p. 4. In October 1946 two British warships passing through the North Corfu Channel, in Albanian territorial waters, struck mines. Forty-four sailors were killed and both ships were damaged. The United Kingdom said Albania had laid the mines or had known of their laying and had said nothing.
Held. Albania was responsible. It could not be proved that Albania had laid the mines, and the Court did not find that it had. But the minefield could not have been laid without Albania's knowledge, and Albania gave no warning to approaching ships. The Court founded the obligation on every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.
Why it matters here. That sentence is not about mines. It is about territory. In Pulp Mills on the River Uruguay the Court said in terms that the principle of prevention, as a customary rule, has its origins in the due diligence that is required of a State in its territory, and it identified this Corfu Channel obligation as the source.
Broken down: what prevention requires
One: it is about conduct, not about outcome. A State does not guarantee that no harm will cross its border. It must take the measures a State in its position could reasonably take. The failure is a failure of diligence.
Two: knowledge matters. The Corfu Channel formula says "knowingly". A State cannot be at fault for what it could not have known. But knowledge includes what it ought to have known: a State that does not monitor cannot plead ignorance of what monitoring would have shown.
Three: the standard is variable. In its advisory opinion on activities in the Area, the Seabed Disputes Chamber said that due diligence is a variable concept: it may change over time as measures considered sufficiently diligent at one moment become less so in the light of new scientific knowledge, and it is more severe for riskier activities.
Corfu Channel, and the Principle of Prevention
Four: it has a procedural half. Prevention in practice means impact assessment, notification, consultation and monitoring. That is why Pulp Mills split the case into procedural and substantive obligations and found a breach of the first while rejecting the second.
The case that made prevention operational
Facts. Pulp Mills on the River Uruguay (Argentina v. Uruguay), ICJ Reports 2010, p. 14. Uruguay authorised two pulp mills on its bank of the River Uruguay, a river governed by a 1975 Statute between the two States which set up a joint commission, CARU, and required notification and consultation before works liable to affect the river. Argentina complained that Uruguay had informed neither CARU nor Argentina, and that the mills were polluting the river.
Held. Uruguay breached its procedural obligations by failing to inform CARU and to notify Argentina through it before authorising the works, and a declaration of that breach was itself appropriate satisfaction. Argentina failed to prove any substantive breach: the evidence did not show that the operating mill had harmed the river. The Court held that the principle of prevention is a customary rule with its origins in the due diligence required of a State in its territory, and that a transboundary environmental impact assessment is now required by general international law where a proposed industrial activity risks significant transboundary harm.
Why it matters here. It is the case that turned impact assessment from a treaty requirement into a rule of general international law, and it is the clearest demonstration that the procedural duties can be breached even where nothing has been polluted.
Worked example
State A plans a fertiliser plant eight kilometres upstream of its border with State B. There is no treaty between them.
- Does State A owe any duty? Yes. The customary principle of prevention applies whether or not there is a treaty.
- What must it do first? Assess. Pulp Mills requires a transboundary environmental impact assessment where there is a risk of significant transboundary harm.
- Then? Notify State B and consult in good faith. Notification without a genuine willingness to discuss is not consultation, which is the lesson of Lake Lanoux.
- May State B veto the plant? No. Lake Lanoux holds that there is no requirement of prior agreement unless a treaty imposes one.
- If State A builds without assessing and no harm results? It has still breached the procedural obligation, and a declaration to that effect may be the whole remedy. That is exactly what happened in Pulp Mills.
Corfu Channel, and the Principle of Prevention
What it does NOT mean
Prevention is not a prohibition on harm. It is a duty to take care. A State that assesses, notifies, consults and regulates properly and is still unlucky has not breached it.
It does not require the neighbour's consent. Consultation is not consent, and the distinction is the single most frequently examined point in this part of the subject.
It is not confined to neighbours. Stockholm Principle 21 extends the duty to areas beyond the limits of national jurisdiction, which is what makes it usable for the high seas, the atmosphere and the climate.
Quick revision
- Corfu Channel, ICJ Reports 1949, p. 4: every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.
- Pulp Mills, ICJ Reports 2010, p. 14: prevention is customary, its origin is due diligence, and transboundary impact assessment is required by general international law.
- Prevention is an obligation of conduct; the standard is due diligence and it varies with the risk.
- The procedural half is assess, notify, consult, monitor.
- Consultation is not consent.
Test yourself
1. What did Corfu Channel actually decide, and what is it cited for here? It decided that Albania was responsible for failing to warn of a minefield in its waters. It is cited for the general obligation not to allow knowingly one's territory to be used for acts contrary to the rights of other States, which the Court later called the origin of prevention.
2. Uruguay was found in breach but paid nothing. Why? The breach was of the procedural obligations to inform and notify. No substantive harm was proved, and the Court held that a declaration of the procedural breach was itself appropriate satisfaction.
3. Is prevention breached whenever transboundary harm occurs? No. It is an obligation of conduct. The question is whether the State exercised due diligence, and the standard rises with the risk and with scientific knowledge.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.