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Precaution in International Law: Reflection on Its Composite Nature

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Chapter Summary

Recent decisions rendered by international courts and tribunals have prompted new interest in the legal profile of the precautionary principle. Among these decisions is the order on provisional measures rendered by the International Tribunal for the Law of the Sea in the mixed oxide (MOX) plant case and in particular the Separate Opinion of Judge Tom Mensah. The precautionary principle triggers new reflections on the "social contract". It proves that all attempts of social constructivism (that is, of management of society according to a final and pre-ordained plan) is destined to failure, or at least to serious questioning. The precautionary principle also requires one to rethink the interaction between law and effectiveness. There is a need to arbitrate between contradictory interests, and a third party such as a court or a tribunal, through the objectivisation of the content of the precautionary principle, can contribute to this important task.

Keywords: international courts; International Law; Law of the Sea; mixed oxide (MOX) plant case; social constructivism



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