The Rise of Risk in International Law

Jacqueline Peel, Science and Risk Regulation in International Law 34 (2010) (“Risk . . . has become a central concern of advanced regulatory states over the last few decades.”); see generally Monika Ambrus et al., Risk and International Law, in Risk and the Regulation of Uncertainty in International Law 1, 5 (Monika Ambrus et al. eds., 2017) (discussing the “dialectical relation between law and uncertainty”); Ulrich Beck, Risk Society: Towards a New Modernity (1992).Hide

See, for example, Susannah Snider, Explore Five Hot Jobs for MBA Graduates, U.S. News (Mar. 20, 2017), https://perma.cc/KUL2-J7SN(opining that “an increasingly complicated, always-changing regulatory environment continues to boost demand for compliance officers”). Hide

This includes everything from health risks, see, for example, Gretchen Reynolds, Should a Simple Fitness Check Be Part of Your Checkup?, N.Y. Times (Nov. 30, 2016), https://www.nytimes.com/2016/11/30/well/move/should-a-simple-fitness-check-be-part-of-your-checkup.html,to the risk of being attacked by terrorists, see, for example, Paul Sullivan, Taking a Rational Look at the Risk of Threats, N.Y. Times (Nov. 20, 2015), https://www.nytimes.com/2015/11/21/your-money/taking-a-rational-look-at-the-risk-of-threats.html.Hide

Minority Report (Dreamworks Pictures 2002).Hide

Cf. Adam Liptak, Sent to Prison by a Software Program’s Secret Algorithms, N.Y. Times (May 1, 2017), https://www.nytimes.com/2017/05/01/us/politics/sent-to-prison-by-a-software-programs-secret-algorithms.html(discussing Supreme Court review of a case where at sentencing the judge considered a statistical report that purported to show that the defendant posed “a high risk of violence, high risk of recidivism, high pretrial risk”).Hide

Gerlinde Berger-Walliser & Paul Shrivastava, Beyond Compliance: Sustainable Development, Business, and Proactive Law, 46 Geo. J. Int’l L. 417, 438 (2015); see also George J. Siedel & Helena Haapio, Using Proactive Law for Competitive Advantage, 47 Am. Bus. L.J. 641, 656–67 (2010).Hide

U.N. Secretary-General, Secretary-General’s Remarks to the Security Council Open Debate on ‘Maintenance of International Peace and Security: Conflict Prevention and Sustaining Peace’ (Jan. 10, 2017), https://perma.cc/24ER-9GF9(discussing early warning). Hide

Cf. generally United Nations, Framework of Analysis for Atrocity Crimes: A Tool for Prevention (2014), https://perma.cc/9VM2-8UB4. Hide

Cf. Jose Luis Bermudez & Michael S. Pardo, Risk, Uncertainty, and ‘Super Risk’, 29 Notre Dame J.L. Ethics & Pub. Pol’y 471, 473 (2015) (“Decisions under risk involve circumstances in which the probabilities and costs associated with possible outcomes can be quantified; whereas decisions under uncertainty involve circumstances in which the probabilities and costs associated with possible outcomes are not amenable to quantification.”).Hide

See Arie Trouwborst, Prevention, Precaution, Logic and Law: The Relationship Between the Precautionary Principle and the Preventative Principle in International Law and Associated Questions, 2 Erasmus L. Rev. 105, 117 (2009). Cf. Glossary, in Understanding Risk: Informing Decisions in a Democratic Society 215–16 (Paul C. Stern & Harvey V. Fineberg eds., 1996) (defining risk).Hide

See Nicolas de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules 74–75 (2002).Hide

See René Ureña, Risk and Randomness in International Legal Argumentation, 21 Leiden J. Int’l L. 787, 790–91 (2008).Hide

See Rosie Cooney & Andrew T.F. Lang, Taking Uncertainty Seriously: Adaptive Governance and International Trade, 18 Eur. J. Int’l L. 523, 525 (2007).Hide

Both “known” and “unknown” risk are, however, different from risk in the sense of individualized reasonable suspicion, which I exclude. Reasonable suspicion—and similar such standards—does not turn on the likelihood of a hazard materializing, but rather on whether there is sufficient information to deem that a hazard has materialized (even if it later turns out that it has not). Hide

While Professor Nicholas Tsagourias has suggested conceptual differences between risk and threat, he acknowledges that the two are merging in some contexts. See Nicholas Tsagourias, Risk and the Use of Force, in Risk and the Regulation of Uncertainty in International Law, supra note 1, at 13, 15.Hide

Compare Matthew C. Waxman, Regulating Resort to Force: Form and Substance of the UN Charter Regime, 24 Eur. J. Int’l L. 151, 157 (2013) (explaining that those who reject “anticipatory self-defense” believe that the “legality of resort to force . . . should operate as an on-off switch, flipped by the manifestation of readily identifiable factual preconditions”), with id. at 158 (explaining that those who support anticipatory self-defense prefer something more akin to a balancing test, one that would include the probability of an anticipated attack materializing and the consequences thereof—in other words, a risk assessment). See also Noam Lubell, The Problem of Imminence in an Uncertain World, in The Oxford Handbook of the Use of Force in International Law, 1, 18–21 (Marc Weller ed., 2014). In a widely-cited paper regarding self-defense against non-state actors, former U.K. Legal Adviser Daniel Bethlehem included “the probability of an attack” among the relevant factors that might justify anticipatory action. Daniel Bethlehem, Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or Actual Armed Act by Nonstate Actors, 106 Am. J. Int’l L. 1, 6 (2012); see also Brian Egan, International Law, Legal Diplomacy and the Counter-ISIL Campaign, U.S. Dep’t of St. Off. Legal Adviser (Apr. 1, 2016), https://perma.cc/E5D4-295Q. Hide

See Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. Rep. 113, ¶ 204 (Apr. 20) [hereinafter Pulp Mills]; Certain Activities Carried Out By Nicaragua in the Border Area (Costa Rica v. Nicar.) and Construction of a Road in Costa Rica Along the San Juan River (Nicar. v. Costa Rica), Judgments, 2015 I.C.J. Rep. 665, ¶ 104 (Dec. 16) [hereinafter Costa Rica v. Nicar.]; Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber), Case No. 17, Advisory Opinion of Feb. 1, 2011, 11 ITLOS Rep. 10, ¶ 145 (Seabed Disputes Chamber). Hide

Trouwborst, Prevention, Precaution, Logic and Law, supra note 10, at 117.Hide

Timo Koivurova, Due Diligence, in Max Planck Encyclopedia of International Law ¶ 1 (2010), https://perma.cc/BP2E-A9TM. Hide

See id. at ¶ 2 (describing due diligence as focusing on “preventive measures expected of a State”). Hide

The precautionary approach, see, for example, U.N. Conference on Environment and Development, Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/26/Rev.1 (Vol. I), annex I (Aug. 12, 1992) [hereinafter Rio Declaration], is also ever more salient (or at least ever more discussed), although I count that as a form of prevention applicable under conditions of uncertainty. See Arie Trouwborst, Evolution and Status of the Precautionary Principle in International Law 39 (2002) [hereinafter Evolution and Status]; Jacqueline Peel, The Precautionary Principle in Practice: Environmental Decision-Making and Scientific Uncertainty 64 (2005). As Professor Arie Trouwborst has succinctly put it, “[i]f the environmental effects of a particular activity are known, measures to avoid them may be termed preventative. If such effects are uncertain, the same measures may also be labelled precautionary.” Trouwborst, Prevention, Precaution, Logic and Law, supra note 10, at 116. The lack of clarity regarding the precise contours of the precautionary approach, and its principal role (at least in my view) as a decision-making tool rather than an obligation or authorization, makes it however only an ancillary focus of this Article. Where I do address it, I use the terms “precaution” or “precautionary approach” rather than the term “precautionary principle,” although I mean what is often described in the literature as the latter. Cf. Jacqueline Peel, Precaution—A Matter of Principle, Approach or Process?, 5 Melb. J. Intl L. 483, 485 (2004).Hide

See, for example, Office of the High Commissioner for Human Rights, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Respect, Protect and Remedy’ Framework at 18–22, U.N. Doc. HR/PUB/11/04 (2011) [hereinafter Guiding Principles] (asserting the need for human rights due diligence and measures to mitigate risk). I recognize that businesses are not subjects of international law. That said, given the prominence of the U.N. Guiding Principles on Business and Human Rights, I include discussion of how those Principles are being understood and implemented. Cf. Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International Governance, 54 Int’l Org. 421, 422 (2000) (discussing the salience of certain non-binding commitments).Hide

See, for example, Tallinn Manual on the International Law Applicable to Cyber Warfare 27 (Michael N. Schmitt ed., 2013); Michael N. Schmitt, In Defense of Due Diligence in Cyberspace, 125 Yale L.J. Forum 68, 70 (2015) (“[E]xperts unanimously agreed that states shoulder a due diligence obligation with respect to both government and private cyber infrastructure on, and cyber activities emanating from, their territory.”); David E. Graham, Cyber Threats and the Law of War, 4 J. Nat’l Sec. L. & Pol’y 87, 93–94 (2010); Karine Bannelier-Christakis, Cyber Diligence: A Low-Intensity Due Diligence Principle for Low-Intensity Cyber Operations?, 14 Baltic Y.B. Int’l L. 1, 8 (2014) (“Does due diligence imply an obligation for States to monitor cyber activities on their territory? The answer to this question is positive because, as it will be seen later, due diligence implies not only an obligation to react but also to prevent. Vigilance and monitoring thus go hand in hand.”); Jeffrey T.G. Kelsey, Note, Hacking Into International Humanitarian Law: The Principles of Distinction and Neutrality in the Age of Cyber Warfare, 106 Mich. L. Rev. 1427, 1445 (2008) (arguing that “[t]he international community could adopt such a test to govern cyber warfare: the neutral state could satisfy its duty under IHL as long as it had applied the means at its disposal to detect and repel a belligerent’s incursions”); Beatrice A. Walton, Note, Duties Owed: Low-Intensity Cyber Attacks and Liability for Transboundary Torts in International Law, 126 Yale L. J. 1460, 1502 (2017) (“[W]here attribution to a state is impossible, but attribution to private entities operating within a state’s territory or via infrastructure located in a state is possible, an attack should only give rise to liability if the state failed to act diligently in preventing it. That is, the applicable standard of care imposed upon states in these cases should be due diligence.”); Katharina Ziolkowski, General Principles of International Law as Applicable in Cyberspace, in Peacetime Regime for State Activities in Cyberspace 135, 135, 169 (Katharina Ziolkowsi, ed., 2013) [hereinafter Peacetime Regime]; Daniel Ortner, Comment, Cybercrime and Punishment: The Russian Mafia and Russian Responsibility To Exercise Due Diligence To Prevent Trans-Boundary Cybercrime, 2015 B.Y.U. L. Rev. 177, 208 (2015) (“[T]he government should independently seek to measure and evaluate its progress by conducting impact assessments.”); see also Benedikt Pirker, Territorial Sovereignty and Integrity and the Challenges of Cyberspace, in Peacetime Regime, supra, at 189, 208 (asserting that there “may be a certain minimum standard of control over cyber activities that needs to be respected”). Cf. Joshua E. Kastenberg, Non-Intervention and Neutrality in Cyberspace: An Emerging Principle in the National Practice of International Law, 64 A.F. L. Rev. 43, 47, 56 (2009) (discussing a neutral state’s obligation of due diligence and what a belligerent might do if the neutral state fails to take action).Hide

See, for example, International Committee of the Red Cross, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 150 (2d ed. 2016) [hereinafter ICRC Revised Commentary] (advancing a new interpretation of Common Article 1 that states have “a general duty of due diligence to prevent and repress breaches of the Conventions by private persons over which a State exercises authority . . . This is an obligation of means, whose content depends on the specific circumstances, in particular the foreseeability of the violations and the State’s knowledge thereof, the gravity of the breach, the means reasonably available to the State and the degree of influence it exercises over the private persons.”).Hide

See, for example, S.C. Res. 2094, ¶¶ 11, 15 (Mar. 7, 2013) (requiring states to “prevent the provision of financial services . . . that could contribute to the DPRK’s nuclear or ballistic missile programmes” and not to provide financial support for trade with the DPRK “where such financial support could contribute” to the DPRK’s prohibited programmes or activities); S.C. Res. 2270, ¶¶ 8, 17, 27, 35, 36 (Mar. 2, 2016); S.C. Res. 1929, ¶ 13 (June 9, 2010).Hide

Compare Cass R. Sunstein, Laws of Fear: Beyond the Precautionary Principle (2005), with Dan M. Kahan et al., Fear of Democracy: A Cultural Evaluation of Sunstein on Risk, 119 Harv. L. Rev. 1071 (2006) (book review).Hide

In this Article, I use the terms “prevention,” “preventive principle” and “preventative principle” interchangeably. Hide

For instance, an interesting recent volume on risk in international law addresses a number of topics separately. See Ambrus et al., supra note 1.Hide

See Michael N. Schmitt, In Defense of Due Diligence in Cyberspace, 125 Yale L.J.F. 68 (2015). Perhaps the most robust study of due diligence was that conducted by the International Law Association, which formed a study group on the subject that produced two thorough reports: Study Group on Due Diligence in International Law, 76 Int'l L. Ass'n Rep. Conf. 947 (2014) [hereinafter ILA Study Group, First Report]; and Study Group on Due Diligence in International Law, 77 Int'l L. Ass'n Rep. Conf. 1062 (2016) [hereinafter ILA Study Group, Second Report]. Joanna Kulesza’s recent monograph on due diligence is a useful source regarding the ILC’s work, see Joanna Kulesza, Due Diligence in International Law (2016), and Monica Hakimi’s work on state responsibility for the acts of third parties is an excellent and important contribution, see Monica Hakimi, State Bystander Responsibility, 21 Eur. J. Int’l L. 341 (2010).Hide

See note 14, supra. This is not to say that there is a stark dichotomy here. Sometimes, a breach of an obligation to prevent a risk may give rise to an authorization on the part of another state to take action. I do not wish to engage debates regarding the relationship between obligations and rights.  Rather, my claim is more descriptive—I classify risk as obligation or authorization based on where the legal focus has tended to lie. Hide

See generally Pulp Mills, supra note 17, for distinction between procedural and substantive obligations. Cf. Stefan Talmon, Jus Cogens after Germany v. Italy: Substantive and Procedural Rules Distinguished, 25 Leiden J. Int’l L. 979, 984 (2012) (distinguishing procedural obligations from “procedural rules,” which do not address the lawfulness of the conduct at issue). Hide

Two examples are the placement of species on lists, such as Appendix II of the Convention on International Trade in Endangered Species, Appendix II art. (2)(a), Mar. 3, 1973, 27 U.S.T. 1087 [hereinafter CITES], and the identification of specific wastes by the Bamako Convention on the Ban of Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Africa, art. 2, Jan. 29, 1991, 30 I.L.M. 773. Hide

Cf. Consejo de Desarrollo Economico de Mexicali, AC v. United States, 438 F. Supp. 2d 1207, 1233 (D. Nev. 2006) (“Nothing in NEPA’s language suggests Congress intended NEPA to apply outside United States territory.”), vacated 482 F.3d 1157 (9th Cir. 2007).Hide

Ilias Plakokefalos, Prevention Obligations in International Environmental Law, 2 (Amsterdam Ctr. for Int’l. L., Working Paper No. 2013-12, 2013), https://perma.cc/4N2D-FP99;see also Costa Rica v. Nicar., supra note 17, at 23, ¶¶ 4, 53–57 (separate opinion by Cançado Trindade, J.) (discussing developments that “bring to the fore the relevance of the preventive dimension in contemporary international law”). While precaution is also much discussed, its current status is somewhat uncertain. Cf. Alexander Gillespie, The Precautionary Principle in the Twenty-First Century: A Case Study of Noise Pollution in the Ocean, 22 Int’l J. of Marine & Coastal L. 61, 70 (2007) (“[O]utside of the explicit adoption of the [precautionary] principle in some international texts, it has no general application.”); Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), ¶ 123, WTO Doc. WT/DS26/AB/R (Jan. 16, 1998) (“The precautionary principle is regarded by some as having crystallized into a general principle of customary international environmental law. Whether it has been widely accepted by Members as a principle of general or customary international law appears less than clear.”) (emphasis added). Hide

See, for example, Comm. on the Elimination of Discrimination Against Women, General Recommendation No. 19: Violence Against Women, ¶ 24(a), U.N. Doc. A/47/38 (1993) (“States parties should take appropriate and effective measures to overcome all forms of gender-based violence, whether by public or private act.”) (emphasis added); Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, art. 7(b), June 9, 1994, 33 I.L.M. 1534 (“[A]pply due diligence . . . .”). Hide

See, for example, Tsagourias, supra note 15, at 13.Hide

See Ureña, supra note 12, at 817 (citing sources).Hide

Cf. Nico Krisch & Benedict Kingsbury, Introduction: Global Governance and Global Administrative Law in the International Legal Order, 17 Eur. J. Int’l Law 1, 1 (2006) (describing the global administrative space as one where “administrative functions are performed in often complex interplays between officials and institutions on different levels,” including the international level). On global governance generally, see the useful repository of papers at N.Y.U.’s Institute for International Law and Justice, www.iilj.org[https://perma.cc/Y2SW-82X4].Hide

Precaution, or the “precautionary approach,” is a term that is notoriously difficult to define. Many, however, cite the Rio Declaration as setting it forth in classical form. That declaration, in its Principle 15, states that “[i]n order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” Rio Declaration, supra note 21. See generally supra note 21 and accompanying text.Hide

See Stefan Talmon, The Security Council as World Legislature, 99 Am. J. Int’l L. 175, 175 (2005) (“As has recently been noted, the Security Council has entered its legislative phase.”).Hide

These individuals or entities are commonly identified in an annex adopted as part of a Security Council resolution or in specific listing proposals that are then agreed upon by all Council members operating in the format of a Security Council sanctions committee.Hide

S.C. Res. 2216, ¶ 14 (Apr. 14, 2015). Hide

S.C. Res. 2253, ¶ 2(c) (Dec. 17, 2015).Hide

We have begun to see self-judging assessments of whether individuals or entities should be subject to asset freezes or travel bans (in the sense that the freeze or the ban would apply to individuals or entities a state believes has engaged in sanctionable conduct, rather than to individuals or entities that have been identified by the Council). For instance, Resolution 2270 applied the DPRK asset freeze to entities a particular state deems associated with the DPRK WMD or missile programs. S.C. Res. 2270, supra note 25, at ¶ 32. And in Resolution 2178, the Council applied a travel ban to those about whom a state has credible information that provides reasonable grounds to believe he or she is seeking to enter their territory for the purpose of committing terrorist acts. S.C. Res. 2178, ¶ 8 (Sep. 23, 2014). Although these are important and novel developments in their own right, such approaches are not risk-based in the sense used by this Article insofar as they turn on a state’s understanding of the present state of affairs (that is, turning on questions such as whether a person is associated with a weapons program and what a person’s current intention may be), rather than a prediction regarding the future.Hide

At a more general level, of course, sanctions are meant to be preventative.Hide

There are some historical precedents for a risk-based approach, such as a travel ban on those “likely” to further or encourage Southern Rhodesian actions. See S.C. Res. 253, ¶ 5(b) (May 29, 1968). But, they are few and far between.Hide

I do not here describe Resolution 1695, which was somewhat unusual in structure. S.C. Res. 1695 (Jul. 15, 2006). Hide

S.C. Res. 1874, ¶ 18 (June 12, 2009); see also id. at ¶ 20 (applying the same standard to trade credits); id. at ¶ 28 (applying the same standard for training).Hide

S.C. Res. 2094, supra note 25, at ¶ 11. It also made binding an earlier non-binding provision regarding trade credits. Id. at ¶ 15. It further included a number of hortatory provisions regarding the prohibition of banking relationships, id. at ¶ 12, and the opening of representative offices, id. at ¶ 13, if the state had information that provided reasonable grounds to believe that these activities could contribute to the DPRK’s prohibited activities. Unlike other ‘reasonable grounds’ type provisions, these were risk-based in that the question was not whether there was sufficient information to conclude that certain facts were true at the present, but whether there was a sufficient predicate to make a probability (risk) assessment.Hide

S.C. Res. 2270, supra note 25, at ¶ 8 (regarding items that could contribute to development of operational capabilities of DPRK armed forces); id. at ¶ 27 (regarding items that could contribute to WMD or missile programs). The resolution also requires states to close representative offices, subsidiaries or banking accounts in the DPRK if the state has credible information that provides reasonable grounds to believe these financial services could contribute to the DPRK’s prohibited activities. Id. at ¶ 35; see also id. at ¶ 17 (requiring states to prohibit training of DPRK nationals that could contribute to proliferation sensitive activities); id. at ¶ 36 (prohibiting public or private financial support that could contribute to prohibited activities).Hide

Id. at ¶ 8. There is an exception to this catch-all if the state further determines that the item would be exclusively for livelihood purposes. Id. An even more recent resolution, Resolution 2321, picked up on the precedent set by Resolution 2270 and provided for the imposition of certain measures unless the State determines that there is no risk. S.C. Res. 2321, ¶ 11 (Nov. 30, 2016) (emphasis added). That is, states are required to suspend scientific and technical cooperation involving persons sponsored by or representing the DPRK unless “the State engaging in scientific or technical cooperation determines that the particular activity will not contribute to the DPRK’s proliferation sensitive nuclear activities or ballistic missile-related programmes.” Id. at ¶ 11(b) (emphasis added). Hide

S.C. Res. 1929, supra note 25, at ¶ 13.Hide

Id. at ¶ 21; see also id., at ¶¶ 23, 24.Hide

The exact import of this provision is not entirely clear—it could mean that states must make determinations (a procedural obligation) or the making of such a determination could trigger the obligation to prohibit the transaction (a substantive obligation) or some combination thereof.Hide

S.C. Res. 1373, ¶ 1(a) (Sept. 28, 2001).Hide

S.C. Res. 2253, supra note 43, at ¶ 2(a). The Security Council took a similar approach in Resolution 2178 on Foreign Terrorist Fighters, imposing not only a criminalization obligation, but also a prevention obligation. S.C. Res. 2178, supra note 44, at ¶ 5.Hide

Cf. Section V.A, infra.Hide

Cf. Scott Sheeran & Catherine Kent, Protection of Civilians, Responsibility to Protect, and Humanitarian Intervention: Conceptual and Normative Interactions, in Protection of Civilians 29, 56 (Haidi Willmot et al. eds., 2016) (“[W]hile mandates provide a right to use force, whether they imply an obligation as such is unclear.”); Siobhan Wills, International Responsibility for Ensuring the Protection of Civilians, in Protection of Civilians, supra, at 224, 228–31. The U.N.’s human rights due diligence policy is an example of risk giving rise to an obligation in a related area.Hide

See U.N. Secretary-General, Rep. of the Panel on United Nations Peace Operations, ¶ 62, U.N. Doc. A/55/305-S/2000/809 (Aug. 21, 2000); see also S.C. Pres. Statement 1999/6 (Feb. 12, 1999).Hide

Sheeran & Kent, supra note 59, at 42 (“A critical development in U.N. peacekeeping since the late 1990s has been the inclusion of the use of force to protect civilians as a mission task.”). The first peacekeeping mission to have such a mandate was the U.N. Mission in Sierra Leone in 1999. As of 2016, fourteen missions had such a mandate. Id. at 44.Hide

See, for example, S.C. Res. 2295, ¶ 19(c)(1) (June 29, 2016); S.C. Res. 2327, ¶ 7(a)(1) (Dec. 16, 2016); S.C. Res. 2301, ¶ 33(a)(i) (July 26, 2016).Hide

S.C. Res. 2295, supra note 62, at ¶ 19(c)(ii).Hide

S.C. Res. 2327, supra note 62, at ¶ 7(a)(ii); see also S.C. Res. 2301, supra note 62, at ¶ 33(a)(i) (“To protect . . . at risk communities, while mitigating risks to civilians posed by its military and police operations.”); S.C. Res. 2348, ¶ 34(i)(b) (Mar. 31, 2017) (“[I]dentify[ing] threats to civilians and implement[ing] existing prevention and response plans . . .”) (emphasis added).Hide

U.N. Office for the Coordination of Humanitarian Affairs, Framework for Drafting Comprehensive Protection of Civilians (POC) Strategies in UN Peacekeeping Operations, 1 (2011), https://perma.cc/M6VB-QEDX. Hide

U.N. Department of Peacekeeping Operations, Department of Field Support, The Protection of Civilians in United Nations Peacekeeping, ¶ 34 (Apr. 1, 2015), https://perma.cc/C73U-YHKX;see also Rep. of the Indep. High-Level Panel on U.N. Peace Operations, Uniting Our Strengths for Peace—Politics, Partnership and People, ¶ 37, U.N. Doc. A/70/95–S/2015/446 (June 17, 2015). Hide

S.C. Res. 1973, ¶ 4 (Mar. 17, 2011) (authorizing force “to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya”).Hide

U.N. Secretary-General, Identical Letters Dated Feb. 25, 2013 from the Secretary-General Addressed to the President of the General Assembly and to the President of the Security Council, annex I ¶ 2(a), U.N. Doc. A/67775–S/2013/110 (Mar. 5, 2013); id. at ¶ 14(f).Hide

S.C. Res. 1975, ¶ 6 (Mar. 30, 2011).Hide

Wills, supra note 59, at 230.Hide

S.C. Res. 2304, ¶ 10(c) (Aug. 12, 2016).Hide

See Koivurova, supra note 19, at ¶ 4 (“[A] State could be held responsible if it was manifestly negligent, i.e. failed to exercise due diligence in trying to prevent, redress or punish the damage to the alien.”). I call it “proto-prevention” since much of the focus was in fact ex post rather than ex ante.Hide

In part, this is the story of how due diligence in the context of state responsibility shifted from being a way to attribute conduct to a state to a primary norm of conduct. Cf. Koivurova, supra note 19, at ¶¶ 5–6.Hide

ILA Study Group, First Report, supra note 29, at 3 (“During the 19th and 20th centuries, due diligence had particular relevance in the context of the protection of aliens.”).Hide

As Justice Moore said in the S.S. Lotus Case, as early as 1927, “[i]t [was] well settled that a State [was] bound to use due diligence to prevent the commission within its dominions of criminal acts against another nation or its people.” The Case of the S.S. Lotus (Fr. v. Turk.), Judgment, 1927 P.C.I.J. (ser. A) No. 10, ¶ 269 (Sept. 7, 1927), https://perma.cc/A9JA-RQRP. Hide

As Dr. Robert Barnidge has put it, “[t]he Janes claim [which was based on failure to respond to murders of Americans] ‘may be considered as the prototype.’” Robert P. Barnidge, Jr., The Due Diligence Principle Under International Law, 8 Int’l Community L. Rev. 81, 93 (2006) (citing Janes v. United Mexican States (U.S. v. Mex.), 4 R.IA.A. 82 (1925)) (internal quotation marks omitted). Cf. id. at 94 (labeling this the “nonrepression” theory). See also Clyde Eagleton, Denial of Justice in International Law, 22 Am. J. Int’l L. 538, 540 (1928); F.V. García Amador (Special Rapporteur on State Responsibility), Rep. on International Responsibility, 173, 222, U.N. Doc. A/CN.4/96 (Jan. 20, 1956) (quoting the Sub-Committee report of the League of Nations Committee of Experts for the Progressive Codification of International Law) [hereinafter García Amador, First Rep.]. For instance, the Harvard Draft Convention on Responsibility of States for Damage Done in their Territory to the Person or Property of Foreigners stated that state responsibility may be incurred where the state failed to prevent injury and “local remedies have been exhausted without adequate redress.” Edwin M. Borchard, The Law of Responsibility of States for Damage Done in their Territory to the Person or Property of Foreigners, 23 Am. J. Int’l L. 131, 134 (1929).Hide

Kulesza, supra note 29, at 66. Many of the seminal cases of the U.S.-Mexico Claims Commission concerned this kind of “denial of justice.” Edwin M. Borchard, Important Decisions of the Mixed Claims Commission United States and Mexico, 21 Am. J. Int’l L. 516, 521 (1927). For a good example in another context, see Poggioli (It. v. Venez.), 10 R.I.A.A. 669 (1903), in which the umpire concluded that Venezuela was responsible where “the local government failed to take ordinary and necessary precautions and allowed the offenses complained of to go unpunished after becoming known.” Id. at 690. See also Kulesza, supra note 29, at 69 (discussing Poggioli and describing “the inaction of state bodies resulting in a gross denial of justice”).Hide

In this regard, I am not fully persuaded by the characterization by the International Law Association that the U.S.-Mexico Claims Commission articulated a set of objective factors to be taken into account in determining the content of the due diligence obligation. ILA Study Group, First Report, supra note 29, at 3.Hide

Thus, for instance, in Boyd v. United Mexican States (U.S.-Mex.), 4 Rep. of Int’l Arbitral Awards (1928), the U.S.-Mexico Commission relied in finding Mexico not liable on the fact that only minor crime had occurred before bandits shot and killed an American national, and no complaint of lack of protection had earlier been made to the Mexican government. Id. at 380. That is, under those circumstances, Mexico might not have known of the risk. By contrast, in Chapman v. United Mexican States (U.S.-Mex.), 4 Rep. of Int’l Arbitral Awards 632 (1930), a case where the Commission found Mexico liable, the Commission emphasized that the U.S. national who suffered harm had warned the Mexican government, but no Mexican official “had manifested more than a passing interest.” Id. at 633. Cf. Barnidge, supra note 76, at 96 (discussing a case where “Mexico had knowledge . . . [and how that] likely figured into the General Claims Commission’s calculus in reaching a finding of state responsibility”).Hide

Cf. Case Concerning the Corfu Channel (U.K. v. Alb.), Judgment, 1949 I.C.J. Rep. 4, 18–21 (Apr. 9).Hide

Gr. Brit. v. Morocco, 2 R.I.A.A. 620 (2006) [hereinafter British Claims in Morocco].Hide

See id. at 644 (the rule “offre en fait aux États, pour leurs ressortissants, le degré de sécurité auquel ils peuvent raisonnablement s’attendre” [the rule offers in fact to states, for their nationals abroad, the degree of security they could reasonably expect]); see also Riccardo Pisillo-Mazzeschi, The Due Diligence Rule and the Nature of the International Responsibility of States, 35 Ger. Y.B. Int’l L. 9, 27 (1992). Cf. Case Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment, 1980 I.C.J. Rep. 3, ¶¶ 65–66 (May 24) (comparing Iran’s response to what it had done some months before in a comparable situation). Hide

Pisillo-Mazzeschi, supra note 82, at 26 (citing Gr. Brit. v. Morocco, supra note 81).Hide

Frederick S. Dunn, The Protection of Nationals: a Study in the Application of International Law 1 (1932).Hide

García Amador, First Rep., supra note 76, at 204 (calling exhaustion “[o]ne of the principles most firmly laid down in international law”). This preoccupation was driven by the view that wrongful acts were seen to “damage interests which, in the final analysis, vest in the State exclusively.” Id. at 181.Hide

Thomas Willing Balch, The Alabama Arbitration 119 (1900). The U.K. asserted that it did not accept that these principles reflected international law, but for purposes of friendly resolution of the Alabama Claims, the Tribunal should proceed as if they did. Id. at 120.Hide

Id. at 130 (“[I]t omitted, notwithstanding the warnings and official representations made by the diplomatic agents of the United States during the construction of the said number ‘290,’ to take in due time any effective measures of prevention.”).Hide

U.S. v. Gr. Brit., 29 R.I.A.A. 125, 129 (2012).Hide

Both the Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land art. 5, Oct. 28, 1907, 36 Stat. 2310, 1 Bevans 654, and the Hague Convention (XIII) Respecting the Rights and Duties of Neutral Powers in Naval War art. 25, Oct. 18, 1907, 36 Stat. 2415, 1 Bevans 723, included due diligence obligations. See also Hague Convention (XIII), supra, at art. 8 (“A neutral Government is bound to employ the means at its disposal to prevent . . . the departure from its jurisdiction of any vessel intended to cruise, or to engage in hostile operations.”) (emphasis added); Ashley Deeks, ‘Unwilling or Unable’: Toward a Normative Framework for Extraterritorial Self-Defense, 52 Va. J. Int’l L. 483, 498 (2012).Hide

Robert W. Tucker, The Law of War and Neutrality at Sea 228 (1955).Hide

Id. at 220, 220 n.55 (noting that “a neutral state is not an insurer of fulfilment of its neutral duties” and arguing for the rights of a belligerent to take action in the event such duties are not fulfilled); id. at 226 & 226 n.68 (noting that the law “fails to indicate with precision the character and scope of the preventive obligation”); see also id. at 223 (discussing the situation where the neutral made appropriate efforts—but was unable ultimately—to suppress the threat posed by the vessel).Hide

Id. at 237–38, 237–39 n. 87.Hide

Kulesza, supra note 29, at 120.Hide

Cf. id. at 120 (discussing League of Nations work as “limited to damages done to foreigners”).Hide

Trail Smelter Case (U.S. v. Can.), 3 R.I.A.A. 1905 (2006).Hide

Roberto Ago (Chairman of the Sub-Committee on State Responsibility), Rep. on State Responsibility, [1963] 2 Y.B. Int’l L. Comm’n 253, UN Doc. A/CN.4/152 (Jan. 16, 1963).Hide

Barnidge, supra note 76, at 109.Hide

Military & Paramilitary Activities in & Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 115 (June 27). See generally Oona A. Hathaway et al., Ensuring Responsibility: Common Article 1 and State Responsibility for Non-State Actors, 51 Tex. L. Rev. 539, 549 (2017).Hide

Alexandre Kiss & Dinah Shelton, Strict Liability in International Environmental Law, in Law of the Sea, Environmental Law & Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah 1131, 1131 (Tafsir Malick Ndiaye & Rüdiger Wolfrum eds., 2007) (“The arbitral agreement itself recognized the responsibility of a State for the acts of non-State actors as well as those of the State or its organs.”).Hide

Trail Smelter, supra note 95, at 1963 (“[T]he real difficulty often arises rather when it comes to determine what . . . is deemed to constitute an injurious act.”).Hide

Id. at 1965. Cf. Stephen C. McCaffrey, Of Paradoxes, Precedents, & Progeny: The Trail Smelter Arbitration 65 Years Later, in Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration 34, 38 (Rebecca M. Bratspies & Russell A. Miller eds., 2006) (“The U.S. view seems to have been that if ‘fumigations’ sufficient to cause injury continued to occur in Washington, the United States would have grounds for complaint, no matter what remedial works had been installed by the company, and regardless of their effect.”).Hide

A key development during this period was the U.S. use of force in Cambodia. See generally Stephen C. Neff, The Rights & Duties of Neutrals: A General History 211–12 (2000) (discussing this as an example of the invocation of self-defense). Then-State Department Legal Adviser John Stevenson explained that the North Vietnamese had used Cambodian territory for attacks against South Vietnam and that while the Cambodian government had made some effort to suppress these attacks, they had failed to accomplish this end. Stevenson then said that where compensation for breach of a neutral’s duties would not be sufficient, “the injured belligerent has the right of self-help or, at a minimum, the right to exercise such self-help consistent with the right of self-defense.” John R. Stevenson, Legal Advisor, U.S. Dep’t of State, Statement to the N.Y.C. Bar Association on Legal Aspects of U.S. Military Action in Cambodia (May 28, 1970), https://perma.cc/W6N4-6UDS.In some sense, this could be considered a remedy for breach of a risk obligation.  But the focus was sufficiently squarely on when a state was authorized to take action, that I classify this as risk as authorization. Cf. supra note 30. Hide

D.W. Bowett, Self-Defense in International Law 90 (1958). As Bowett has remarked, “the essence of action in self-defence is that it should be a measure of protection, not punishment.” Id. at 99. Indeed, the view was taken that before seeking to take action to protect nationals, a state must exhaust local remedies. Kristen E. Eichensehr, Note, Defending Nationals Abroad: Assessing the Lawfulness of Forcible Hostage Rescues, 48 Va. J. Int’l L. 452, 472 (2008). Exhaustion requirements tend to deflect attention from what a state is expected to do ex ante and keep the focus on the circumstances under which another state is authorized to take action. See supra Section III(A).Hide

The first draft articles continued to focus on the question of local remedies (and hence authorization to bring claims). See F.V. García Amador (Special Rapporteur on State Responsibility), Second Rep. on International Responsibility, 105, UN Doc. A/CN.4/106 (Feb. 15, 1957); see also Roberto Ago (Special Rapporteur on State Responsibility), First Rep. on State Responsibility, 143, 145, [1969] 2 Y.B. Int’l L. Comm’n 125, U.N. Doc. A/CN.4/217 (May 7, 1969) (discussing the 1961 revised Harvard Draft Convention on Responsibility of States for Damage Done in their Territory to the Person or Property of Foreigners, which suggested that due diligence was only breached if the territorial state failed to apprehend the non-state actor who caused injury). Hide

Julio Barboza (Special Rapporteur on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law), Second Rep. on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law, 145, UN Doc. A/CN.4/402 (May 13, 1986). This understanding subsequently shifted. Id. at 146.Hide

García Amador, Second Rep., supra note 104, at 106.Hide

Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations 258 (2016); see also Ignatiev v. United States, 238 F.3d. 464 (D.C. Cir. 2001).Hide

Cf. ILA Study Group, First Report, supra note 29, at 6 (linking due diligence to investment law); George K. Foster, Recovering ‘Protection and Security’: The Treaty Standard’s Obscure Origins, Forgotten Meaning, and Key Current Significance, 45 Vand. J. Transnat’l. L. 1095, 1126 (2012) (linking this to the protection of aliens doctrine and discussing Mexico-U.S. Mixed Claims Commission cases).Hide

Foster, supra note 108, at 1097.Hide

Id. at 1133 (citing U.S. Dep’t of State, Pub. No. 6565, Commercial Treaty Program of the United States (1958)).Hide

Xue Hanqin, Transboundary Damage in International Law 3 (2003); Catherine Tinker, State Responsibility and the Precautionary Principle, in The Precautionary Principle and International Law: The Challenge of Implementation at 53, 54 (David Freestone & Ellen Hey eds., 1996) (discussing “the classic model, which poses a bilateral conflict between one state as actor and another state as victim, with significant physical harm occurring across national boundaries”); see also James Crawford, Brownlie’s Principles of Public International Law 581 (2012) (discussing the view that “only states may invoke the responsibility of other states, and only when specially affected by the breach”); Roberto Ago (Special Rapporteur on State Responsibility), Second Rep. on State Responsibility, [1970] 2 Y.B. Int’l L. Comm’n 177, 184, UN Doc. A/CN.4/233 (Apr. 20, 1970) (suggesting that a wrongful act gives rise to a right to reparation on the part of one specific state). Hide

Ago, Second Rep., supra note 111, at 178; see also Alan E. Boyle, State Responsibility and International Liability for Injurious Consequences of Acts Not Prohibited by International Law: A Necessary Distinction?, 39 Int’l & Comp. L.Q. 1, 3 (1990). Cf. 1013th Meeting on State Responsibility, [1969] 1 Y.B. Int’l L. Comm’n 114, U.N. Doc. A/CN.4/217 (noting the suggestion by some ILC members to address risk under the rubric of state responsibility, which Special Rapporteur Ago disclaimed in his first report).Hide

Mark A. Drumbl, Trail Smelter and the International Law Commission’s Work on State Responsibility for Internationally Wrongful Acts and State Liability, in Transboundary Harm in International Law, supra note 101, at 85, 87 (“State liability differs from state responsibility insofar as it covers situations in which no illegal or unlawful conduct has occurred, although the conduct has triggered harm.”); Sompong Sucharitkul, State Responsibility and International Liability under International Law, 18 Loy. L.A. Int'l & Comp. L.J. 821, 834 (1996) (“Injury or damage is not an element of state responsibility” but “under international liability, there is no breach of a primary obligation if no appreciable harm or injurious consequence results.”). The theory at the time was that knowing transboundary harm might engage state responsibility, and so too might a breach of a state’s due diligence obligations to prevent harm. Cf. Gunther Handl, Trail Smelter in Contemporary International Environmental Law: Its Relevance in the Nuclear Energy Context, in Transboundary Harm in International Law, supra note 101, at 125, 130, 132 (“Trail Smelter suggests that any such effects [significant transboundary effects] would constitute internationally prohibited conduct[,]” and lack of due diligence “bears on whether there has been a breach of a state’s obligation entailing responsibility for the transboundary harm occasioned.”). But an accident would not, see Report of the International Law Commission on the Work of its Forty-Fifth Session, U.N. Doc. A/40/10, reprinted in [1993] 2 Y.B. Int’l L. Comm’n 24 (part 2) (“The Special Rapporteur explained that activities involving risk were chiefly those which may cause transboundary harm due to accidents.”). Gunther Handl points in particular to situations where there is a “[s]tatistical probability that given the nature of the activity concerned, harm will occur, reasonable precautionary measures notwithstanding.” Gunther Handl, Liability as an Obligation Established by a Primary Rule of International Law, 16 Neth. Y.B. Int’l L. 49, 64 (1985).Hide

International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law, [1992] 2 Y.B. Int’l L. Comm’n 42, 51, U.N. Doc. A/47/10 (“Attention should be focused at this stage on drafting articles in respect of activities having a risk of causing transboundary harm.”). One of the justifications for discussing risk was that states had not consented to assume certain risks emanating from conduct on the territory of their neighbors—unlike nationals affirmatively choosing to reside on the territory of a state other than their state of nationality. See Report of the Working Group on International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law, [1978] 2 Y.B. Int’l L. Comm’n 151, U.N. Doc. A/CN.4/L.284 (“In the situations that fall within the present topic, there is no presumption of willingness to accept risks or harmful consequences because they are tolerated within the territory or control of the State in which those risks or harmful consequences arise.”) [hereinafter International Liability Working Group]; Kulesza, supra note 29, at 170 (“[T]here is no presumed consent of the state to take upon itself the risk of dangerous acts.”).Hide

Knowledge was not required. There was some discussion of whether the territorial state must have had “means of knowing” of the risk in order for the draft articles to apply. This proposal was primarily to shelter developing countries. Julio Barboza (Special Rapporteur on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law), Fourth Rep. on International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law, 262, U.N. Doc. A/CN.4/413 (Apr. 6, 1988) (A “means of knowing” test has as “its primary aim . . . to protect developing countries, which sometimes lack the means to be aware of everything that goes on within their territory”). But this concept was ultimately rejected. Id. at 263 (ultimately suggesting deletion of the test).Hide

The first draft articles identified the probability of harm as one of the relevant factors to balance in a proposed balancing test. Robert Q. Quentin-Baxter (Special Rapporteur on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law), Third Rep. on International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law, 64, § 6(1), U.N. Doc. A/CN.4/360 (June 23, 1982).Hide

Handl, supra note 113, at 50.Hide

Cf. International Law Commission, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities and Commentaries Thereto, U.N. Doc. A/56/10 (2001), reprinted in [2001] 2 Y.B. Int’l L. Comm’n 153 [hereinafter Draft Articles on Prevention of Transboundary Harm] (“The State of origin shall take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof.”).Hide

Robert Q. Quentin-Baxter (Special Rapporteur on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law), First Rep. on International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law, 250, U.N. Doc. A/CN.4/334 (June 24, 1980) (emphasis added); see also Robert Q. Quentin-Baxter (Special Rapporteur on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law), Fourth Rep. on International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law, 213, UN Doc. A/CN.4/373 (June 27, 1983).Hide

The threshold ultimately chosen was “significant” risk. Draft Articles on Prevention of Transboundary Harm, supra note 118, at 153 (“The State of origin shall take all appropriate measures to prevent significant transboundary harm . . . .”); id. at 152 (“The obligations of prevention imposed on States are thus not only reasonable but also sufficiently limited so as not to impose such obligations in respect of virtually any activity.”). Hide

Before “significant risk” was chosen, Barboza had suggested that the standard be “appreciable risk,” which he defined as “of some magnitude and that it must be either clearly visible or easy to deduce from the properties of the things or materials used.” Julio Barboza (Special Rapporteur on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law), Third Rep. on International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law, 56, U.N. Doc. A/CN.4/405 (Mar. 16, 1987). The ILC debated whether this standard, which connotes detectability, should be preferred to “significant,” which connotes the quantum of risk. International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law, [1989] 2 Y.B. Int’l L. Comm’n 83, 91–92, U.N. Doc. A/44/10 at 91–92. (The Special Rapporteur appeared to take the view that “appreciable” meant both detectable and significant. Julio Barboza (Special Rapporteur on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law), Sixth Rep. on International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law, 88, U.N. Doc. A/CN.4/428 (Mar. 15, 1990).) Hide

Documents of the Thirty-Ninth Session, [1987] 2 Y.B. Int’l L. Comm’n 44, U.N. Doc. A/CN.4/SER.A/1987. The draft Articles proposed by the Special Rapporteur in 1990 included an exemplary list of dangerous substances. Barboza, Sixth Rep., supra note 121, at 105. Cf. Julio Barboza (Special Rapporteur on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law), Eighth Rep. on International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law, 61, U.N. Doc. A/CN.4/443 (Apr. 15, 1992) (“The Commission and the Sixth Committee did not prove receptive to the inclusion of such a concept or, consequently, to the resulting amendments.”).Hide

Barboza, Fourth Rep., supra note 115, at 256 (“[T]he risk must be general. In other words, it need not relate to specific cases, since our point of reference is no longer the act but the activity.”). Questions were also raised regarding whether certain activities should give rise to strict liability even where appropriate preventive measures were taken (because of the magnitude of the likely harm). Gunther Handl, State Liability for Accidental Transnational Environmental Damage by Private Persons, 74 Am. J. Int’l L. 525, 541 (1980) (“[T]he crucial element in a state’s original liability for private activities turns out to be the transnational significance of the risk.”); Hanqin, supra note 111, at 302 (“[J]urists propose[d] that . . . strict liability should be imposed on States . . . when transboundary damage is caused by abnormally dangerous activities.”). Compare Barboza, Fourth Rep., supra note 115, at 254 (suggesting a standard of “highly likely to cause transboundary injury”) (emphasis added), and Report of the Commission to the General Assembly on the Work of the Fortieth Session, 1988 2 Y.B. Int’l L. Comm’n 14, A/CN.4/SER.A/1988 (“The Special Rapporteur admitted that the concept of risk as defined in draft article 2 (a) did not seem to cover properly activities with low risk but with the potential of great harm.”), with Julio Barboza (Special Rapporteur on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law), Fifth Rep. on International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law, 134, U.N. Doc. A/CN.4/423 (1989) (defining risk to include “both the low probability of very considerable [disastrous] transboundary harm and the high probability of minor appreciable harm”). Cf. Handl, Trail Smelter in Contemporary International Environmental Law, supra note 113, at 133 (“[T]he Tribunal’s decision does not directly cast a light on the status of threatened transboundary harms when the possible consequences are extremely serious but are low probability.”).Hide

Cf. Draft Articles on Prevention of Transboundary Harm, supra note 118, at 149–50 (noting that the idea of a list had been rejected but that the word “activity” had been retained, which had been understood to be somewhat categorical). The ESPOO convention, on the other hand, includes a list of specific activities in its Appendix 1, Convention on Environmental Impact Assessment in a Transboundary Context art. 1(3), Jan. 14, 1991, 30 I.L.M. 802 [hereinafter ESPOO Convention], and has procedures for identifying additional activities that should be subject by consent of the parties to the procedures of the convention, id. at art. 2(5). Hide

Compare Draft Articles on Prevention of Transboundary Harm, supra note 118, at 153 (draft article 3 is “in the nature of a statement of principle”), and id. at 155 (discussing different due diligence owed by states of differing levels of development), with id. at 157–66 (draft articles of a more procedural nature). Cf. Pemmaraju Sreenivasa Rao (Special Rapporteur on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law: Prevention of Transboundary Damage from Hazardous Activity), First Rep. on Prevention of Transboundary Damage from Hazardous Activities, 209–18, U.N. Doc. A/CN.4/487 (Mar. 18, 1998) (identifying precautions, which may also be procedural, polluter pays, which concerns liability not risk assessment, and equity, capacity, and good governance as the “substantive” principles underlying the enterprise).Hide

Quentin-Baxter, Third Rep., supra note 116, at 62–64. This is not surprising, since the core of the ILC’s early thinking on the subject had been that harm that might be caused by acts not prohibited by international law should generally be addressed by a balancing test. International Liability Working Group, supra note 114, at 151. The expectation was that states would agree on specific regimes to cover such activity. Quentin-Baxter, First Rep., supra note 119, at 250. Hide

Gunther Handl, The Principle of ‘Equitable Use’ As Applied to Internationally Shared Natural Resources: Its Role in Resolving Potential International Disputes Over Transfrontier Pollution, 14 Revue Belge de Droit Int’l 40, 56 (1978) (“In fact they [duties to negotiate] presuppose what might be called the ‘duty to make an environmental impact assessment.’”). Hide

As early as the Secretariat's study of 1984, the example of EIAs was discussed. Survey of State Practice Relevant to International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law, 12–13, U.N. Doc. A/CN.4/384 (Oct. 16, 1984). Some had, however, wished assessments to be undertaken in a more ‘objective’ manner. See, for example, Quentin-Baxter, Third Rep., supra note 116, at 63, § 3(6)(a) (suggesting joint fact-finding); Barboza, Third Rep., supra note 121, at 50 (asserting that where there are disagreements about risk, “the objective opinion of a third party is the only way out of the impasse”); Barboza, Fifth Rep., supra note 123, at 146–47. The ILC was not alone in coming to rely on environmental impact assessments or the like. See, for example, U.N. Convention on the Law of the Sea art. 206, Nov. 16, 1994, 1833 U.N.T.S. 397; ESPOO Convention, supra note 124, at art. 1(vi); id. at app. 2(d), 2(f) (discussing estimation and predictions). That said, the precise legal status of such procedural obligations under general international law remained uncertain, and the ICJ did not provide clear guidance on this point. See Erika L. Preiss, The International Obligation to Conduct an Environmental Impact Assessment: The ICJ Case Concerning the Gabcikovo-Nagymaros Project, 7 N.Y.U. Envtl. L.J. 307, 308 (1999) (“While the case presented the Court with an opportunity to establish clearly and advocate the many emerging doctrines of international environmental law, the majority of the Court declined to utilize it.”); Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (N.Z. v. Fr.), Judgment, 1995 IC.J. Rep. 288, 342, 344 (Sept. 22) (dissenting opinion of Weeramantry, J.). The ILC also focused considerable attention on a variety of other procedural obligations, such as notification rules, relying for instance on the seminal Lac Lanoux case in that regard. See Case Concerning Lac Lanoux (Spain v. Fr.), 12 R.I.A.A. 281, 308 (2006).Hide

Caroline E. Foster, Science and the Precautionary Principle in International Courts and Tribunals: Expert Evidence, Burden of Proof and Finality 7 (2011).Hide

Quentin-Baxter, First Rep., supra note 119, at 264.Hide

Case Concerning Barcelona Traction Light and Power Company, Limited (Belg. v. Spain), Judgment, 1970 I.C.J. Rep. 3, ¶ 33 (Feb. 5) (“In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.”); Crawford, supra note 111, at 583; Hanqin, supra note 111, at 238.Hide

Barboza, Sixth Rep., supra note 121, at 101–02.Hide

Thus, for instance, the Bilateral Investment Treaty (BIT) program began in the late 1970s and BITs differed from FCNs in that they generally permitted individuals to bring claims directly. Key provisions of BITs spoke to preventive actions that states should take with regard to the risk of violence. See Christoph Schreuer, Full Protection and Security, 1 J. Int’l Dispute Settlement 1, 2 (2010) (citing Eastern Sugar B.V. v. Czech Republic (Neth. v. Czech), S.C.C. Case 088/2004, Partial Award, at 42–43 (2007)). Hide

Draft Articles on Prevention of Transboundary Harm, supra note 118, at 151 (noting “physical consequences”); see also Rao First Rep., supra note 125, at 194 (“[r]ejecting suggestions to expand the scope to include economic and social activities”); Hanqin, supra note 111, at 5 (“Th[e] first definitional element . . . serves to exclude activities which may cause consequential damage across a border, but not of a ‘physical’ character.”).Hide

Draft Articles on Prevention of Transboundary Harm, supra note 118, at 150–51; see also Rao, First Rep., supra note 125, at 197.Hide

Cf. Rao, First Rep., supra note 125, at 182.Hide

Peel, Precaution, supra note 21, at 491 (“One way of conceptualising what might be meant by precaution as an approach . . . is to say that it authorises or permits regulators to take precautionary measures in certain circumstances, without dictating a particular response in all cases.”).Hide

Cf. Cass R. Sunstein, Beyond the Precautionary Principle, 151 U. Pa. L. Rev. 1003, 1028 (2003) (asserting that precaution is paralyzing because “it stands as an obstacle to regulation and nonregulation, and to everything in between”). But cf. John S. Applegate, The Taming of the Precautionary Principle, 27 Wm. & Mary Envtl. L. & Pol’y Rev. 13, 15 (2002) (arguing that strong versions of the precautionary principle “have been systematically tamed”).Hide

I distinguish authorization from the classical formulation of the precautionary principle (a potential third way of understanding the precautionary approach), which provides that lack of scientific certainty should not preclude certain decisions. See, for example, Rio Declaration, supra note 21. I also consider European litigation regarding mad cow disease, sometimes cited for the proposition that precaution acted as authorization, see Foster, supra note 129, at 24 (“EU institutions are empowered to take protective measures . . . .”) (emphasis added), not entirely apposite, since precaution entered the equation with respect to the court’s proportionality calculation regarding the specific restrictions imposed, see Case C-180/96, United Kingdom v. Comm’n of the European Cmtys., 1998 E.C.R. I-02265, ¶¶ 98–99, 103.Hide

Gabcikovo-Nagymaros Project (Hung.-Slovak.), Judgment, 1997 I.C.J. Rep. 7, ¶ 37 (Sept. 25). Hide

Id. at ¶ 54 (discussing the “objective existence of a ‘peril’”) (emphasis added).Hide

Agreement on the Application of Sanitary and Phytosanitary Measures art. 5.1, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 U.N.T.S. 3 [hereinafter SPS Agreement].Hide

E.C. Measures Concerning Meat and Meat Products (Hormones), Rep. of the Appellate Body, ¶ 16, U.N. Doc. WT/DS26/AB/R, (Jan. 16, 1998); see also id. at ¶ 29 (“‘Risk,’ for the purposes of the SPS Agreement, is the ‘potential’ for the harm or adverse effects . . . and, therefore, the mere possibility of risk arising suffices for the purposes of Articles 5.1 and 5.2.” (citing SPS Agreement, supra note 142)). But see id. at ¶ 43 (describing the U.S. view that precautionary principle “cannot create a risk assessment where there is none”).Hide

Id. at ¶¶ 124–25; see also Trouwborst, Evolution and Status, supra note 21, at 169 (“[T]he approach taken by the Appellate Body . . . appears to be somewhat inconsistent with its recognition that national governments may legitimately act in a cautious manner in the face of risk.”).Hide

Precaution as obligation is also evidenced for instance by the Fish Stocks Agreement, The U.N. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks art. 6(3)(b), 2167 U.N.T.S. 3 (entered into force Dec. 11, 2001); id. at Annex II(2); see also 1996 Protocol to the London Convention on the Prevention of Marine Pollution by Dumping of Waste and Other Matters arts. 3(1), 4(1), 36 I.L.M. 1 (entered into force Mar. 24, 2006). Hide

N.Z. v. Fr., 1995 I.C.J. Rep. 288.Hide

Id. at 342 (Weeramantry, J., dissenting). I do not find the argument that the precautionary approach entails a reversal of the burden of proof persuasive. Hide

Compare MOX Plant (Ir. v. U.K.), Case No. 10, Request for Provisional Measures and Statement of Case of Ireland of Nov. 9, 2011, ¶ 101, 4 ITLOS Pleadings 5, with MOX Plant, (Ir. v. U.K.), Case No. 10, Written Response of the United Kingdom of Nov. 15, 2011, ¶ 134, 4 ITLOS Pleadings 361. Cf. MOX Plant (Ir. v. U.K.), Case No. 10, Order of Dec. 3, 2001, ¶ 71, 5 ITLOS Rep. 95 (“Considering that Ireland argues that the precautionary principle places the burden on the United Kingdom to demonstrate that no harm would arise from discharges and other consequences of the operation of the MOX plant.”).Hide

MOX Plant (Ir. v. U.K.), Order of Dec. 3, 2001, ¶ 89, 5 ITLOS Rep. 95, 107–08. Likewise, in the Southern Bluefin Tuna Cases, the ITLOS applied provisional measures after hearing arguments that precaution served as obligation. See Southern Bluefin Tuna (N.Z. v. Japan; Austl. v. Japan), Case Nos. 3 & 4, Order of August 27, 1999, ¶¶ 80, 85, 3 ITLOS Rep. 280, 293–94.Hide

Peel, supra note 21, at 497.Hide

Land Reclamation in and around the Straits of Johor (Malay. v. Sing.), Case No. 12, Order of Oct. 8, 2003, ¶ 106, 7 ITLOS Rep. 10, 47.Hide

Consider, for instance, the Stockholm Convention on Persistent Organic Pollutants, which provides for listing of chemicals and stipulates that lack of scientific certainty shall not prevent a listing proposal from proceeding. Stockholm Convention on Persistent Organic Pollutants art. 8(7)(a), 2256 U.N.T.S. 119 (entered into force May 22, 2001). Hide

See Security Council Official Records, 1939th Mtg., U.N. Doc. S/PV.1939, ¶ 106 (July 9, 1976) (citing Judge Huber’s decision in Spanish Zone of Morocco Claims (Gr. Brit. v. Spain), 2 R.I.A.A. 615 (Perm. Ct. Arb. 1925)).Hide

Andrew W.R. Thomson, Doctrine of the Protection of National Abroad: Rise of the Non-Combatant Evacuation Operation, 11 Wash. U. Global Stud. L. Rev. 627, 630 (2012).Hide

Tom Ruys, The ‘Protection of Nationals’ Doctrine Revisited, 13 J. Conflict & Sec. L. 233, 244–45 (2008); see Adlai Stevenson, Letter Dated Apr. 29, 1965 from the Permanent Representative of the United States of America Addressed to the President of the Security Council, U.N. Doc. S/6310 (Apr. 29, 1965) (“American lives were in danger.”); U.N. SCOR, 2491st mtg. at 7, U.N. Doc. S/PV.2491 (Oct. 27, 1983) (“Those circumstances included danger to innocent United States nationals, the absence of a minimally responsible Government in Grenada and the danger posed to the OECS by the relatively awesome military might that those responsible for the murder of the Bishop Government how had their disposal.”); id. at 8 (“[I]t was fully reasonable for the United States to conclude that these madmen might decide at any moment to hold hostage the 1,000 American citizens on that island.”); U.N. SCOR, 44th Sess., 2899th mtg. at 31, U.N. Doc. S/PV.2899 (Dec. 20, 1989) (“designed to protect American lives”); id. at 32 (quoting President George H.W. Bush that Noriega had “created an imminent danger to the 35,000 American citizens in Panama”).Hide

John R. Dugard (Special Rapporteur on Diplomatic Protection), First Rep. on Diplomatic Protection, 218, U.N. Doc. A/CN.4/506 (Apr. 7, 2000).Hide

See Ruys, supra note 155, at 267.Hide

I choose this year somewhat arbitrarily but it was when the ILC completed its Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, see supra note 118.Hide

Compare with the sources listed in note 111, supra, which speak to the earlier “dyadic” approach to harm. There, harm was something that occurred to a single other or identified set of states, as opposed to something that could be claimed by any state.Hide

Rebecca M. Bratspies & Russell A. Miller, Introduction to Transboundary Harm in International Law, supra note 101, at 1, 8.Hide

Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Human Rights Impact Assessments—Resolving Key Methodological Questions, ¶ 26, U.N. Doc. A/HRC/4/74 (Feb. 5, 2007).Hide

Guiding Principles, supra note 22.Hide

See John Ruggie, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, § I, U.N. Doc. A/HRC/8/5 (Apr. 7, 2008).Hide

Guiding Principles, supra note 22, at 15–16.Hide

Id. at 18–19.Hide

Application of the Convention on the Prevention and Punishment of Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment, 2007 I.C.J. 43, 183 (Feb. 26) [hereinafter Genocide Convention case].Hide

The court stated that this obligation “arise[s] at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.” Id. at ¶ 431 (emphasis added).Hide

This is a change from earlier iterations of the commentary. See, for example, Carlo Focarelli, Common Article 1of the 1949 Geneva Conventions: A Soap Bubble?, 21 Eur. J. Int’l L. 125, 134 (2010); Oona A. Hathaway et al., supra note 98, at 28 (“These revised commentaries adopt a broader vision.”). It has occasioned considerable debate. Cf. Oona Hathaway & Zachary Manfredi, The State Department Adviser Signals a Middle Road on Common Article 1, Just Security (Apr. 12, 2016) https://perma.cc/HU42-ZYGK. Hide

See ICRC Revised Commentary, supra note 24, at 118; see also id. at 150. Hide

See Knut Dormann & Jose Serralvo, Common Article 1 to the Geneva Conventions and the Obligation to Prevent International Humanitarian Law Violations, 96 Int’l Rev. of the Red Cross 707, 729–30 (2014) (discussing action “where the risk of such violations can be reasonably foreseen”). Previously, in Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. Rep. 14, 104 ¶ 220 (June 27) [hereinafter Nicaragua], the ICJ had focused on a negative obligation not to assist in IHL violations. See id. (stating that the U.S. was “under an obligation not to encourage persons or groups engaged in the conflict in Nicaragua to act in violation of [IHL]”) (emphasis added). By the time of the Wall advisory opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. Rep. 136, 200 (July 9), the ICJ was speaking of a (not defined) positive prevention obligation (it said—quite opaquely—that “all the States parties to the [Geneva Conventions] are under an obligation . . . to ensure compliance by Israel with international humanitarian law”). Id. at 200, ¶ 159. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. Rep. 136, 200 ¶ 159 (July 9). But even that is not equivalent to an obligation to act where there is a risk of unlawful conduct. Hide

I do not engage here the question of the extraterritorial scope of human rights obligations. Compare Oona A. Hathaway et al., Human Rights Abroad: When Do Human Rights Treaty Obligations Apply Extraterritorially?, 43 Ariz. State L.J. 389, 390 (2011), with Digest of United States Practice in International Law 173 (CarrieLyn D. Guymon ed., 2014) (“The United States continues to believe that its interpretation—that the Covenant applies only to individuals that are both within the territory of a State Party and within its jurisdiction—is the most consistent with the Covenant’s language and negotiating history.”) (emphasis in original).Hide

Risk is also increasingly relevant to questions of jus in bello. Thus, for instance, while risk (in the sense of threat) has long been relevant under the Fourth Geneva Convention to interment decisions, Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 42(1), Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, risk was also made relevant—whether as a legal matter or as a policy matter—to detention of belligerents during the Obama Administration. Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force, Exec. Order No. 13,567, § 2, 76 Fed. Reg. 13,277 (Mar. 7, 2011).Hide

See Elena Chachko & Ashley Deeks, Who is on Board with “Unwilling or Unable”?, Lawfare (Oct. 10, 2016), https://perma.cc/RG33-D4GZ.But see Kevin Jon Heller, The Absence of Practice Supporting the “Unwilling or Unable” Test, Opinio Juris (Feb. 17, 2015), https://perma.cc/TNQ7-LZ7D. Hide

See, for example, Vincent-Joel Proulx, Babysitting Terrorists: Should States Be Strictly Liable for Failing to Prevent Transborder Attacks, 23 Berkeley J. Int’l L. 615, 652–53 (2005) (discussing strict liability with a due diligence defense).Hide

International Committee of the Red Cross, The Montreux Document on Pertinent International Legal Obligations and Good Practices for State Related to Operations of Private Military and Security Companies During Armed Conflict 11, ¶ 3 (2009) https://perma.cc/ZNK2-L9ZP[hereinafter Montreux Document]. Hide

The “unwilling or unable” test speaks to the question of whether the use of force is lawful on the territory of a particular state. The antecedent question of whether force may lawfully be used against a particular armed group turns on (among other factors) whether that armed group has attacked the state wishing to use force (or whether there is an imminent threat of such an attack).Hide

See Arms Trade Treaty, G.A. Res. 67/234 B arts. 7(1)(b)(i), 7(3), Apr. 2, 2013, https://perma.cc/48KT-H4XV.The Arms Trade Treaty explicitly goes beyond the doctrine of state responsibility. Alexandra Boivin, Complicity and Beyond: International Law and the Transfer of Small Arms and Light Weapons, 87 Int’l Rev. of the Red Cross 467, 469, 493 (2005). Hide

Montreux Document, supra note 175, at 11, ¶ 2 (suggesting that states when contracting should “tak[e] into account the inherent risk associated with the services to be performed”).Hide

See, for example, S.C. Res. 1857, ¶ 15 (Dec. 22, 2008); see also Final Rep. of the Group of Experts on the Democratic Republic of the Congo, ¶¶ 306, 308, U.N. Doc. S/2010/596 (Nov. 29, 2010) (discussing “red flag” locations). Cf. OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High Risk Areas, Annex I 18 (2d ed. 2013) (discussing specific-mineral-based risk analyses).Hide

See generally note 23, supra, collecting sources.Hide

Schmitt, In Defense of Due Diligence in Cyberspace, supra note 23, at 75.Hide

Walton, supra note 23, at 1472–73.Hide

Scott J. Shackelford et al., Unpacking the International Law on Cybersecurity Due Diligence: Lessons from the Public and Private Sectors, 17 Chi. J. Int’l L. 1, 22 (2016) (distinguishing Trail Smelter as it involved a “geographical constraint”).Hide

Matthew J. Sklerov, Solving the Dilemma of State Response to Cyberattacks: A Justification for the Use of Active Defenses Against States Who Neglect Their Duty to Prevent, 201 Mil. L. Rev. 1, 64 (2009) (“[It] demonstrates state recognition of both the need to criminalize cyberattacks, and the duty of states to prevent their territory from being used by non-state actors to conduct cyberattacks against other states.”).Hide

Id. at 9 (“[D]espite Chinese and Russian pledges to crackdown on their attackers, no one has been brought to justice for any of the attacks discussed.”).Hide

Ziolkowski, supra note 23, at 169; Ortner, supra note 23, at 208 (“[T]he government should independently seek to measure and evaluate its progress by conducting impact assessments.”); see also Benedikt Pirker, Territorial Sovereignty and Integrity and the Challenges of Cyberspace, in Peacetime Regime, supra note 23, at 189, 208 (asserting that there “may be a certain minimum standard of control over cyber activities that needs to be respected”). But see Tallinn Manual, supra note 23, at 44–45; Schmitt, In Defense of Due Diligence in Cyberspace, supra note 23 (“[T]here was no agreement as to whether the due diligence obligation applies when a state knows that such activities will be launched but they have not yet materialized.”). For an interesting recent development, see Kristen Eichensehr, Would the United States be Responsible for Private Hacking, Just Security (Oct. 17, 2017), https://perma.cc/QZD8-HR2B(discussing voluntary review by the U.S. government of proposed cyber actions and the consequences thereof). Hide

Jason Healey & Hannah Pitts, Applying International Environmental Legal Norms to Cyber Statecraft, 8 I/S: J.L. & Pol’y for Info. Soc’y 356, 376 (2012).Hide

Walton, supra note 23, at 1465 (suggesting “applying this liability approach to low-intensity state-sponsored cyber attack”).Hide

Nehal Bhuta & Stavros-Evdokimos Pantazopoulous, Autonomy and Uncertainty: Increasingly Autonomous Weapons Systems and the International Legal Regulation of Risk, in Autonomous Weapons Systems: Law, Ethics, Policy at 284, 291 (Nehal Bhuta et al. eds., 2016).Hide

Hanqin, supra note 111, at 167.Hide

Moreover, instruments requiring or purporting to require EIAs continue to proliferate. The 2008 Draft Articles on the Law of Transboundary Aquifers, like the Watercourses Convention, provides that states shall share “available technical data and information, including any environmental impact assessment,” where “planned activities . . . may affect a transboundary aquifer or aquifer system and thereby may have a significant adverse effect upon another State.” Draft Articles on the Law of Transboundary Aquifers, with Commentaries, U.N. Doc. A/63/10, at 65 (2008).Hide

See supra note 17. The ICJ has been somewhat unclear whether in its view the requirement of an EIA derives from states’ due diligence obligations or is free-standing. Compare Nicar. v. Costa Rica, 2015 I.C.J. Rep. 665, ¶¶ 18–22 (separate opinion of Owada, J.), and Nicar. v. Costa Rica, 2015 I.C.J. Rep. 665, ¶ 9 (separate opinion of Donoghue, J.), with Nicar. v. Costa Rica, 2015 I.C.J. Rep. 665, ¶ 9 (separate opinion of Dugard, J.). The Seabed Disputes Chamber has been much clearer. Responsibilities and Obligations of States, Advisory Opinion, supra, ¶ 145 (“It should be stressed that the obligation to conduct an environmental impact assessment is a . . . general obligation under customary international law.”).Hide

I take no position on the substantive question of whether environmental impact assessments are required by customary or general international law, and, if so, why. My point here is descriptive.Hide

Under corollary U.S. law, the first question an agency must address is whether the risk of affecting the environment is sufficient to require an environmental impact statement in the first place (if not, the federal agency issues a finding of no significant impact). See, for example, Sierra Club v. U.S. Dep’t of Transp., 753 F.2d 120, 126 (D.C. Cir. 1985).Hide

This kind of guidance is significant in light of the differences John Knox has identified at the domestic level regarding how states undertake EIAs. John H. Knox, Assessing the Candidates for a Global Treaty on Transboundary Environmental Impact Assessment, 12 N.Y.U. Envtl. L.J. 153, 156–57 (2003).Hide

Nicar. v. Costa Rica, supra note 17, at 720–21, ¶ 155. Cf. id. at 707, ¶ 105 (concluding that Nicaragua was not required to carry out an EIA).Hide

Foster, supra note 129, at 36 (describing the case as representing “a high-water mark in the co-operative settlement of international disputes involving scientific uncertainty”).Hide

Land Reclamation in and around the Straits of Johor, supra note 151, at ¶ 106.Hide

The South China Sea Arbitration (Phil. v. China), PCA Case No. 2013-19, Award of Jul. 12, 2016, ¶ 989 (Perm. Ct. Arb. 2016).Hide

Makane Moise Mbengue, The South China Sea Arbitration: Innovations in Marine Environmental Fact-Finding and Due Diligence Obligations, 110 A.J.I.L. Unbound 285, 286–87 (2016).Hide

By this I mean that specific risks are identified, which could be presented either by a category of activities or a specific act.Hide

Most trace these developments to the decision of the Inter-American Court of Human Rights in Velasquez Rodriguez v. Honduras, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 4 (July 29, 1988), although a case involving disappearances not domestic violence, in which the court held that “[t]he State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.” Id. at ¶ 174. For the relationship between subsequent jurisprudence on domestic violence and this case, see, for example, Patricia Tarre Moser, The Duty to Ensure Human Rights and Its Evolution in the Inter-American System: Comparing Maria Da Penha v. Brazil with Lenahan (Gonzales) v. United States, 21 J. Gender, Soc. Pol’y & L. 437, 437 (2012). The Committee on the Elimination of Discrimination Against Women (the CEDAW Committee) also relied on this logic in adopting its General Recommendation 19. Committee on the Elimination of Discrimination Against Women, General Recommendation No. 19: Violence Against Women, supra note 35, at ¶ 24(a). The U.S. has expressed some skepticism regarding the scope of due diligence obligations, see Lenahan v. United States, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 80/11 ¶ 3 (Aug. 17, 2011) (“The State moreover claims that the petitioners cite no provision of the American Declaration that imposes on the United States an affirmative duty, such as the exercise of due diligence.”), and I take no position on the merits of their view as my argument here is descriptive.Hide

Velasquez Rodriguez v. Honduras, supra note 202, at ¶ 175 (“This duty to prevent includes all those means of a legal, political, administrative and cultural nature that promote the protection of human rights and ensure that any violations are considered and treated as illegal acts.”). For instance, the CEDAW Committee specifically recommended certain forms of legislation, such as making available the equivalent of restraining orders. General Recommendation No. 19, supra note 35, at ¶ 24(t)(ii).Hide

Velasquez Rodriguez v. Honduras, supra note 202, at ¶ 176 (“The State is obligated to investigate every situation involving a violation of the rights protected by the Convention.”); Declaration on the Elimination of Violence against Women art. 4(c), U.N. Doc. A/RES/48/104 (Dec. 20, 1993) (“[P]revent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons.”); Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, supra note 35, at art. 7(b) (“[A]pply due diligence to prevent, investigate and impose penalties for violence against women”). Thus in the Maria da Pehna Maia Fernandes case, Maria da Penha Maia Fernandes v. Brazil, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 54/01, (Apr. 16, 2001), before the Inter-American Commission on Human Rights, the question was whether the state was responsible for having condoned domestic violence under circumstances where “for more than 15 years, it has failed to take the effective measures required to prosecute and punish the aggressor, despite repeated complaints.” Id. at ¶ 2; see also id. at ¶ 44 (“The Commission holds the view that the domestic judicial decisions in this case reveal inefficiency, negligence, and failure to act on the part of the Brazilian judicial authorities and unjustified delay in the prosecution of the accused.”).Hide

Yakin Ertürk (Special Rapporteur on Violence Against Women), The Due Diligence Standard as a Tool for the Elimination of Violence Against Women, 2, U.N. Doc. E/CN.4/2006/61 (Jan. 20, 2006). Hide

Moser, supra note 202, at 438.Hide

Eur. Consult. Ass’n, Recommendation Rec(2002)5 of the Committee of Ministers to Member States on the Protection of Women Against Violence app. ¶ 44, 794th Sess. (Apr. 30, 2002) (emphasis added).Hide

Id. at ¶ 58(b).Hide

Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence art. 5(2), Apr. 7, 2011, C.E.T.S. No. 210.Hide

Id. at art. 51(1). This is an emerging field at the domestic level. See generally, for example, Jacquelyn C. Campbell et al., Assessing Risk Factors for Intimate Partner Homicide, 250 Nat’l Inst. Just. J. 14 (2003).Hide

For very useful surveys of this jurisprudence, see generally Lee Hassselbacher, State Obligations Regarding Domestic Violence: The European Court of Human Rights, Due Diligence, and International Legal Minimums of Protection, 8 Nw. J. Int’l Hum. Rts. 190 (2009) and Benedetta Faedi Duramy, Judicial Developments in the Application of International Law to Domestic Violence, 21 Am. U. J. Gender Soc. Pol’y & L. 413 (2012).Hide

Opuz v. Turkey, 2009-III Eur. Ct. H.R. 107, 144. Hide

Cheryl Hanna, Health, Human Rights, and Violence Against Women and Girls: Broadly Redefining Affirmative State Duties after Opuz v. Turkey, 34 Hastings Int’l & Comp. L. Rev. 127, 145 (2011).Hide

In Bevacqua v. Bulgaria, Eur. Ct. H.R. App. No. 71127/01, ¶ 83 (2008), for instance, the European Court suggested that the preventive measures set forth in the Council of Europe’s recommendation might be required. (“[T]he Court considers that certain administrative and policing measures—among them, for example, those mentioned in Recommendation Rec(2002)5 . . . would have been called for.”). And in A.T. v. Hungary, CEDAW Comm., No. 2/2003, ¶ 2.1, U.N. Doc. CEDAW/C/32/D/2/2003 (2005), the Committee on the Elimination of Discrimination Against Women considered an allegation that Hungary had inadequate preventive measures because there were “no protection orders or restraining orders available under Hungarian law.” Hide

Lenahan v. United States, supra note 202, at ¶ 145 (noting “judicial recognition of risk”).Hide

Moser, supra note 202, at 439; see also Rashida Manjoo (Special Rapporteur on Violence Against Women), Rep. of the Special Rapporteur on Violence Against Women, Its Causes and Consequences, ¶¶ 70–71, U.N. Doc. A/HRC/23/49 (May 4, 2013) (suggesting that it might be useful to distinguish “systemic” due diligence from “individual” due diligence). This way of approaching due diligence stands in some contrast to the earlier jurisprudence of the European Court of Human Rights, which tended not to look deeply into how domestic authorities considered risk on the front end; see Osman v. U.K., Judgment, Eur. Ct. H.R. at ¶ 116 (Oct. 28, 1998) (explaining that the “obligation must [not] be interpreted in a way which . . . impose[s] an impossible or disproportionate burden on the authorities.”).Hide

See, for example, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Protect, Respect and Remedy: A Framework for Business and Human Rights ¶ 56, U.N. Doc. A/HRC/8/5 (Apr. 7, 2008) (“Comparable processes are typically already embedded in companies because in many countries they are legally required to have information and control systems in place to assess and manage financial and related risks.”); Mark B. Taylor et al., Due Diligence for Human Rights: A Risk Based Approach at 2 (Corporate Social Responsibility Initiative, Working Paper No. 53, 2009), https://perma.cc/ZT6W-YZEP;Olga Martin-Ortega, Human Rights Due Diligence for Corporations: From Voluntary Standards to Hard Law at Last?, 32 Neth. Q. of Hum. Rts. 44, 51 (2014) (“[Ruggie] translated the due diligence that companies were accustomed to performing in commercial relations and transactions into the sphere of human rights.”); Robert McCorquodale, Social Responsibility and International Human Rights Law, 87 J. Bus. of Ethics 385, 392 (2009) (“This concept of due diligence appears to be an integration of the human rights obligation . . . and the general business practice of due diligence.”); ILA Study Group, First Report, supra note 29, at 20 (“This appears to be an integration of the international human rights legal obligation of due diligence . . . and the general voluntary business practice of due diligence.”). Hide

Take due diligence in the context of the Foreign Corrupt Practice Act (FCPA). The Department of Justice and Securities Exchange Commission have indicated they will consider the existence and extent of compliance programs in deciding what cases to pursue. U.S. Department of Justice and Securities and Exchange Commission, A Resource Guide to the Foreign Corrupt Practices Act 56 (Nov. 14, 2012), https://perma.cc/7SJG-QXTR[hereinafter FCPA Resource Guide] (“DOJ and SEC also consider the adequacy of a company’s compliance program when deciding what, if any, action to take.”). Compliance programs are risk based. FCPA Resource Guide, supra, at 58 (“Assessment of risk is fundamental to developing a strong compliance program”). Indeed, under the U.S. Sentencing Guidelines, an effective compliance program is defined as one where the corporation “exercise[s] due diligence to prevent and detect criminal conduct.” U.S. Sentencing Guidelines Chapter 8 § 8B2.1(a)(1). Specifically, for a program to be deemed effective “the organization [is expected] periodically [to] assess the risk of criminal conduct.” Id. at § 8B2.1(c). And DOJ and SEC assert that “each compliance program should be tailored to an organization’s specific needs, risks, and challenges.” FCPA Resource Guide, supra, at 57. Hide

Martin-Ortega, supra note 217, at 56–57 (stating that it includes “the flexibility of the concept according to size and activity”).Hide

Taylor et al., supra note 217, at 2.Hide

Id. at 11–12.Hide

See, for example, Organisation for Economic Co-operation and Development, Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions, Annex II, § A(6) (Nov. 26, 2009); Organisation for Economic Co-operation and Development, Guidelines for Multinational Enterprises, at 47 (2011). Hide

Geoffrey Corn, War, Law, and Oft Overlooked Value of Process as a Precautionary Measure, 42 Pepp. L. Rev. 419, 455 (2015) (“[T]he scope of intelligence collection and analysis must be understood to include a continuing obligation to assess civilian considerations of the military operation in order to facilitate the commander’s assessment of civilian risk associated with targeting decisions.”); Gregory S. McNeal, Targeted Killing and Accountability, 102 Geo. L.J. 681, 745 (2014) (“Perhaps the simplest way to understand the mitigation process is to think of it as a series of tests based on risk.”). That precautions in attack involves risk assessment is not of course new, see, for example, Michael Bothe et al., New Rules for Victims of Armed Conflicts: Commentary on the Two 1997 Protocols Additional to the Geneva Conventions of 1949 363 (1982), but it has gained increased salience.Hide

See generally Naz K. Modirzadeh, Folk International Law: 9/11 Lawyering and the Transformation of the Law of Armed Conflict to Human Rights Policy and Human Rights Law to War Governance, 5 Harv. Nat’l Sec. J. 225 (2014).Hide

See Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities (May 22, 2013), https://perma.cc/N53N-NWJH. Hide

Foster, supra note 129, at 9 (discussing the “difficulty with keeping international standards up to date with scientific developments”); David A. Wirth, Examining Decision-Making Processes in International Environmental law, 79 Iowa L. Rev. 769, 792 (1994) (“Unfortunately, the fit between the law and many environmental problems is poor [because] [s]cientific knowledge . . . can change rapidly.”). Hide

Dinah Shelton, Righting Wrongs: Reparations in the Articles on State Responsibility, 96 Am. J. Int’l L. 833, 834 (2002).Hide

Id. at 854–55. Hide

Cf. Daniel C. Esty, Good Governance at the Supranational Scale: Globalizing Administrative Law, 115 Yale L.J. 1490, 1494 (2006) (analogizing views of international organization policy-making to “suspicions that accompanied the founding of the American administrative state”).Hide

See, for example, Proulx, supra note 174, at 644 (“The global effort against terrorism is an exercise in risk assessment.”).Hide

Cf. Eyal Benvenisti, Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders, 107 Am. J. Int’l L. 295, 317 (2013) (“[C]ontemporary circumstances . . . require the recognition of a fundamental legal obligation upon sovereigns to note the interests of others when making policy choices that directly affect them.”).Hide

Esty, supra note 229, at 1493.Hide

See, for example, Cooney & Lang, supra note 13, at 534. Hide

Jutta Brunée, International Environmental Law and Community Interests: Procedural Aspects 13, in Community Obligations in International Law (Eval Benvenisti & Georg Nolte eds., forthcoming 2017).Hide

See, for example, Articles of Association, International Code of Conduct for Private Security Service Providers’ Association art. 3.3.3, Int’l Code of Conduct Assc’n, https://perma.cc/Q8YZ-BMDJ(last visited Oct. 9, 2017); Voluntary Principles Initiative—Guidance on Certain Role [sic] and Responsibilities of NGOs, Voluntary Principles, https://perma.cc/EEP4-RJNE(last visited Oct. 9, 2017); see also Articles of Association, supra, at art. 11, (permitting ICOCA to certify companies); International Code of Conduct for Private Security Service Providers ¶ 6(d), Int’l Code of Conduct Assc’n, https://perma.cc/95CH-RVGJ(last visited Oct. 9, 2017) (discussing “deter[ing]” abuses); Voluntary Principles on Security and Human Rights, Voluntary Principles, https://perma.cc/8BXH-F5QU(last visited Oct. 9, 2017) (discussing “accurate, effective risk assessments”). Hide

Meeting of the Parties to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Compliance Committee, Report on the Seventh Meeting, Addendum, ¶ 28, UN Doc. ECE/MP.PP/C.1/2005/2/Add.3(Mar. 14, 2005); see also Rio Declaration, supra note 21, at 5, Principle 10 (“States shall facilitate and encourage public awareness and participation.”).Hide

Brunée, supra note 234, at 7; see also David Gartner, Beyond the Monopoly of States, 32 U. Pa. J. Int’l L. 595, 616–17 (2010) (“[T]here is an important literature on global administrative law, which focuses on the role of procedural requirements within international institutions as a means to improving [sic] responsiveness and accountability.”). Hide

Gartner, supra note 237, at 604; see also Kal Raustiala, Note, The ‘Participatory Revolution’ in International Environmental Law, 21 Harv. Envtl. L. Rev. 537, 539 (1997) (“NGO participation does not undermine but rather strengthens the regulatory powers of states and the state system. The benefits states accrue from NGO participation allow them to regulate ecologically harmful activities with greater efficiency, effectiveness, and legitimacy.”) (emphasis in original). Cf. Sierra Club v. Costle, 657 F.2d 298, 400–01 (D.C. Cir. 1981) (“[T]he very legitimacy of general policymaking performed by unelected administrators depends in no small part upon the openness, accessibility, and amenability of these officials to the needs and ideas of the public.”); The Idea of Risk Characterization, in Understanding Risk, supra note 10, at 24 (“The instrumental rationale for broad public participation is that it may decrease conflict and increase acceptance of or trust in decisions by government.”).Hide

Wirth, supra note 226, at 770 (“[P]ublic participation in defining, implementing, and applying international environmental law can facilitate the twin goals of accountability and efficacy.”); Raustiala, supra note 238, at 557 (“Th[e] growth in the complexity, scope, and regulatory nature of international environmental law has fostered the expansion of private sector participation . . . [including] [b]ecause non-state actors frequently possess better (and different) information than governments.”). Cf. Summary, in Understanding Risk, supra note 10, at 4 (“[A]lthough potentially more time-consuming and cumbersome in the near term, it is often wiser to err on the side of too-broad rather than too-narrow participation.”).Hide

Daniel M. Bodansky, The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?, 93 Am. J. Int’l L. 596, 606 (1999). For instance, NGOs can act as compliance monitors, which creates a legitimacy feedback loop. See Steve Charnovitz, Nongovernmental Organizations and International Law, 100 Am. J. Int’l L. 348, 355 (2006) (asserting that NGOs “supply the personnel and resources for managing compliance that states have become increasingly reluctant to provide”) (quoting Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements 250–51 (1995)).Hide

See, for example, Solon Barocas & Andrew D. Selbst, Big Data’s Disparate Impact, 104 Cal. L. Rev. 671 (2016).Hide

See, for example, Andrew Guthrie Ferguson, Big Data and Predictive Reasonable Suspicion, 136 U. Pa. L. Rev. 327 (2015).Hide

Cf. Annecoos Wiersema, Uncertainty, Precaution and Adaptive Management in Wildlife Trade, 36 Mich. J. Int’l L. 375, 418 (2015) (“[E]nough data can give rise to sufficient levels of certainty to inform decisions using modeling and extrapolations.”).Hide

Report of the Working Group on International Liability, supra note 114, at 150 (“A revolution in technology . . . has extended dramatically man’s power to control his environment, creating a corresponding need for the urgent development of legal norms.”).Hide

But cf. Judgment in the Risk Decision Process, in Understanding Risk, supra note 10, at 39 (“Individuals and groups that do not share the judgments and assumptions about the problem formulation that underlie a risk characterization may well see the information it provides as invalid, illegitimate, or not pertinent.”); Peel, The Precautionary Principle in Practice, supra note 21, at 65 (“[T]here may be a divergence in the way risks are perceived between ‘experts’ and the ‘lay public.’”); Vern R. Walker, The Myth of Science as a ‘Neutral Arbiter’ for Triggering Precautions, 26 B.C. Int’l & Comp. L. Rev. 197, 198 (2003) (making “a risk determination cannot be a matter of ‘pure science’”). Hide

Peel, The Precautionary Principle in Practice, supra note 21, at 48–50.Hide

Id. at 65.Hide

Wirth, supra note 226, at 770.Hide

See, for example, Draft Articles on Prevention of Transboundary Harm, supra note 118, at 158 (“The legal obligation to conduct an environmental impact assessment under national law was first developed in the United States.”); Neil Craik, The International Law of Environmental Impact Assessment: Process, Substance and Integration 23 (2008) (“EIA norms have not only spread horizontally to other states, but they have also spread vertically, influencing the development of EIA norms in international law and within international organizations.”); Charles M. Kersten, Note, Rethinking Transboundary Environmental Impact Assessment, 34 Yale. J. Int’l L. 173, 173 (2009) (“The theory of EIA emerged in the domestic context.”).Hide

Conflict Minerals Final Rule, 17 C.F.R. §§ 240, 249(b) (2012) (“The OECD’s ‘Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas’ satisfies our criteria and may be used as a framework for purposes of satisfying the final rule’s requirement that an issuer exercise due diligence in determining the source and chain of custody of its conflict minerals.”); see also Martin-Ortega, supra note 217, at 66.Hide

Cf. Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519, 546 (1978) (“[I]f courts continually review agency proceedings to determine whether the agency employed procedures which were, in the court's opinion, perfectly tailored to reach what the court perceives to be the ‘best’ or ‘correct’ result, judicial review would be totally unpredictable.”).Hide

National Environmental Policy Act of 1969, 42 U.S.C. § 4321 (1969). Hide

See, for example, Carla Mattix & Kathleen Becker, Scientific Uncertainty Under the National Environmental Policy Act, 54 Admin. L. Rev. 1125, 1133, 1142 (2002); Irene Weintraub, Note, NEPA and Uncertainty in Low Impact, High Risk Scenarios: Nuclear Energy as a Case Study, 37 Cardozo L. Rev. 1565, 1567–68 (2016) (“[C]ourts have continued to interpret NEPA’s requirements in areas of uncertainty in different ways.”); Michael Hill, Note, NEPA at the Limits of Risk Assessment: Whether to Discuss a Potential Terrorist Attack on a Nuclear Power Plant Under the National Environment Policy Act, 78 Fordham L. Rev. 3007, 3025–28 (2010). Indeed, the Council on Environmental Quality (CEQ) initially required federal agencies to take a “worst-case” approach, before subsequently revising its regulation in favor of analysis of “reasonably foreseeable significant adverse impacts.” Todd S. Aagaard, A Functional Approach to Risks and Uncertainties Under NEPA, 1 Mich. J. Envtl. & Admin. L. 87, 97 (2012); Charles F. Weiss, Note, Federal Agency Treatment of Uncertainty in Environmental Impact Assessments Under the CEQ’s Amended NEPA Regulation § 1502.22: Worst Case Analysis or Risk Threshold, 86 Mich. L. Rev. 777, 778 (1988). Compare 40 C.F.R. § 1502.22(b) (1979), with 40 C.F.R. § 1502.22(b).Hide

Robert McCorquodale, Corporate Social Responsibility and International Human Rights Law, 87 J. Bus. Ethics 385, 392 (2009).Hide

Cf. Foster, supra note 129, at 317.Hide

Some states may even take the view that scientific disputes are non-justiciable at international law. See Southern Bluefin Tuna (N. Z. v. Japan, Austl. v. Japan), 23 R.I.A.A. 1, 28 (2006) (“questions of scientific judgment . . . are not justiciable.”); see also James Gerard Devaney, Fact-Finding Before the International Court of Justice 74 (2016).Hide

Some have cited the South China Sea arbitration as a model. See, for example, Sophie Schiettekatte, Building the Bridge Between Science and Law at the International Court of Justice: From Ex Parte to Ex Curia Experts at 9 (forthcoming 2017) (manuscript at 9), https://perma.cc/5BDN-MJUG;Mbengue, supra note 200, at 287; see generally Foster, supra note 129, at 131 (asserting that there are a “diversity of procedures” now used by courts and tribunals to undertake scientific fact-finding). Hide

Arg. v. Uru., supra note 17, at ¶ 203.Hide

Id. at 86 ¶ 213; see also id. at ¶ 6 (Yusuf, J., concurring); Schiettekatte, supra note 257, at 7. Cf. Arg. v. Uru., supra note 17, at 111, ¶ 6 (Al-Khasawneh J. & Simma J., dissenting). For criticism of the ICJ for failing to articulate standards to guide EIAs, see Plakokefalos, supra note 34, at 14–15.Hide

Schiettekatte, supra note 257, at 3.Hide

Certain Activities and Construction of a Road (separate opinion of Dugard, J.), supra note 34, at ¶ 34 (“The fact-finding of the Court cannot be substantiated. To make matters worse the decision of the Court cannot be reconciled either with the reasoning on the obligation to conduct an environmental impact assessment employed by the Court in Construction of a Road or with the rules relating to environmental impact assessments expounded by the Court.”); see also Devaney, supra note 256, at 27 (“A number of commentators have argued that the Court has traditionally employed a number of different tactics in order to avoid engaging with complex factual and scientific determinations.”); Schiettekatte, supra note 257, at 8.Hide

Diane Desierto, Evidence but not Empiricism? Environmental Impact Assessments at the International Court of Justice in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica), EJIL Talk (Feb. 16, 2016), https://perma.cc/F5YN-JW2. Hide

Kersten, supra note 249, at 187.Hide

Kulesza, supra note 29, at 73.Hide

Bodansky, supra note 240, at 621 (“Assessing risk is a scientific task, but determining what to do in response requires value judgments about what levels of risk are acceptable.”). Cf. Tara Parker-Pope, Wrong About Risk? Blame Your Brain, N.Y. Times (Jan. 16, 2008), https://perma.cc/ZCT4-Q53G. Hide

See Foster, supra note 129, at 257.Hide

This includes whether individuals can bring an example of the forecast harm to mind (the availability heuristic), what Cass Sunstein calls probability neglect (overestimation of a harm because of how awful it would be if it materialized), see Cass R. Sunstein, Probability Neglect: Emotions, Worst Cases and Law, 112 Yale L.J. 61, 63 (2002), and loss aversion. See also Kahan et al., supra note 26, at 1077–78; Analysis, in Understanding Risk, supra note 10, at 112–13.Hide