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The certain activities case: what implications for the no-harm rule?


Brent, KA, The certain activities case: what implications for the no-harm rule?, Asia Pacific Journal of Environmental Law, 20 pp. 28-56. ISSN 1385-2140 (2017) [Refereed Article]

Copyright Statement

Copyright 2017 The Author. Journal compilation Copyright 2017 Edward Elgar Publishing Ltd.

DOI: doi:10.4337/apjel.2017.01.02


The customary law duty to prevent significant transboundary harm and harm to the global commons (‘no-harm’ rule) has developed considerably since it was first enunciated in the 1938/1941 Trail Smelter arbitration. This article reflects on this development and analyses what implications the 2015 Certain Activities case has for existing understandings of the no-harm rule. The International Court of Justice (ICJ)'s judgment provides greater clarity concerning procedural obligations flowing from the no-harm rule by establishing a positive obligation to ascertain risk and a sequence in which procedural obligations arise. However, it raises questions concerning the nature of the substantive obligation under the no-harm rule. Specifically, whether breach of the substantive obligation is subject to establishing that an activity has resulted in significant transboundary harm. The ambiguity in the Certain Activities case highlights the need to further clarify and develop the content of the no-harm rule to better enable it to contribute to the governance of contemporary transboundary and global environmental problems.

Item Details

Item Type:Refereed Article
Keywords:no-harm rule, transboundary harm, prevention, due diligence
Research Division:Law and Legal Studies
Research Group:Environmental and resources law
Research Field:Environmental law
Objective Division:Environmental Policy, Climate Change and Natural Hazards
Objective Group:Understanding climate change
Objective Field:Understanding climate change not elsewhere classified
UTAS Author:Brent, KA (Dr Kerryn Brent)
ID Code:121208
Year Published:2017
Deposited By:Law
Deposited On:2017-09-15
Last Modified:2018-05-17

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