On 1 February 2016 Ms Leslie-Anne Duvic-Paoli defended her PhD thesis in International Law, entitled “The Prevention Principle in International Environmental Law”, at the Graduate Institute. The committee was presided by Professor Andrea Bianchi and included Adjunct Professor Professor Jorge Viñuales, thesis director, as well as Professor Catherine Redgwell, from the University of Oxford, and Professor Laurence Boisson de Chazournes, from the University of Geneva.

What is the purpose of your research?

It aims to provide a comprehensive assessment of the prevention principle in international environmental law. Following the old adagio “Prevention is better than cure”, the field operates on the basis that the protection of the environment is best ensured by preventing harm from actually occurring rather than by repairing the damages, and has therefore consecrated the prevention principle as its cornerstone.

How do you achieve this rather ambitious goal?

I follow a historical approach, taking the reader on a journey through international environmental law via the lens of the prevention principle – more than just looking at a norm, it looks at the context within which it operates and by which it is defined. The dissertation is based on the premise that the specificity of the prevention principle in international environmental law can be best understood when put in perspective with the traditional international law reparation approach.

And what are your major findings?

I find that while international environmental law has moved from a curative approach to an anticipatory perspective by consecrating prevention as its key obligation, the ex post and ex ante regimes also share some common ground in the idea of compliance control. Current trends reveal that the curative perspective, which had been partly put aside after the consecration of the prevention principle in the 1970s, is becoming an integral part of the international environmental legal framework; but inescapable divergences between the two logics remain. However, the preventive rationale can best extend towards a reparative approach when expressed in the form of non-compliance mechanisms, which facilitate the combination of the two logics in a synthesis that best serves environmental protection.

The study culminates in a proposal for the conceptualisation of prevention which highlight the principle’s definitional features, on the basis of (1) its rationale, as a norm concerned with risk anticipation; (2) its content, as a due diligence obligation dictating proactivity in the face of environmental risks; and (3) its spatial scope, as an obligation concerned with the protection of the environment per se and therefore applicable irrespective of the location of harm.

What made you chose this subject?

My interest in the topic stems from the realisation that the prevention principle in international environmental law, despite being the cornerstone of the field, tends to have been sidetracked by discussions on what are considered to be more topical issues, such as precaution or sustainable development. Admittedly, in light of the ever-increasing environmental degradation that our planet is facing, the role of prevention could appear minimal, if at all useful. However, the preventive rationale remains the driving force at the international level, by guiding environmental negotiations, and locally, by shaping decisions relating to projects which might have negative impacts on the environment. Therefore, I believe that it is essential to put prevention back at the centre of international environmental law by clarifying how prevention translates into specific obligations aiming to curb environmental risks.

One of the key aspects of prevention which sparked my interest was the fact that prevention is a complex, multi-faceted norm, which embraces different degrees of normativity and plays multiple roles in the law. Prevention disrupts the international legal framework, by questioning a traditional Westphalian system based on classical concepts of sovereignty, responsibility and sanction, and requiring innovative approaches to issues which do not operate within an inter-state structure.

There certainly are quite a few topical issues which your research might help undertand.

It can, inter alia, contribute to better understanding of the different legal dynamics at play in the drafting of environmental agreements such as the recently adopted Paris Agreement to the United Nations Framework Convention on Climate Change, which re-balances the all-preventive approach of the Convention by providing space for a curative outlook (in the form of “loss and damage”) and making space for a compliance control mechanism.

Similarly, as international environmental adjudication is growing, my research can help assess judicial decisions relative to environmental harm: by way of example, a recent judgement of the International Court of Justice in a case opposing Costa Rica and Nicaragua raised fundamental questions relative to the degree of care expected from a state to discharge its obligation of prevention.

What will you remember of your doctoral experience?

I have thoroughly enjoyed my doctoral journey at the Graduate Institute, where I had the privilege of interacting with an inspiring community of scholars. I particularly liked the emphasis put by the faculty on the importance of becoming a specialist in one’s own field while at the same time keeping a broad vision of general public international law. As a teaching assistant within the LLM programme, I had a very rewarding experience contributing to the newly established programme and interacting with a highly motivated group of international students.

What are you going to do now?

I have moved to the University of Cambridge, where I am currently a Philomathia Post-doctoral Research Associate. I am working in the Cambridge Centre for Environment, Energy and Natural Resource Governance, conducting research on the international legal dimensions of energy and building a network of academic institutions working in the field of international energy law to foster research on the law of energy transitions.

Full citation: Duvic-Paoli, Leslie-Anne. “The Prevention Principle in International Environmental Law.” PhD thesis (summa cum laude), Graduate Institute of International and Development Studies, 2016, 515 p.

Illustration: The river and road at the heart of the ICJ case “Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica)”. Ministerio de Obras Públicas y Transportes de la República de Costa Rica.