The Court declared the customary nature of the obligation to prevent transboundary environmental damage (para. 129). The Court then clarified that this principle imposes obligations that are similar to the general obligation to prevent violations of human rights and is not restricted to inter-State relations (para. 133). The Court did not however, provide any reasoning on a state practice and opinio juris basis.
The precautionary principle
With reference to the Rio Declaration, the Court defined the precautionary principle as one requiring measures to be adopted in cases where there is no scientific certainty as to the environmental impact of an activity (paras. 180-181).
Obligation to cooperate
The Court affirmed the customary character of the obligation to moj database cooperate (para. 184) and recalled that as per the ICJ’s jurisprudence, this obligation is indispensable for the protection of the environment. The obligation includes the specific duties on previous and timely notification, together with consultation and negotiation in good faith with potentially affected States (paras. 186-205).
Procedural obligations to ensure the rights to life and personal integrity in the context of the protection of the environment
The Court characterised these procedural obligations as deriving from the human rights of: access to information (paras. 213-225); public participation (paras. 226-232); and access to justice (paras. 233-240), all in connection with the general obligation of States to protect the environment.
In conclusion, the Court’s first approach to “jurisdiction” in Article 1.1 of the American Convention, although timely, requires further elucidation. Currently, the question remains whether the exceptional criteria of extraterritorial application recognized at 73 to 81 of the A/O govern the application of the negative obligation to prevent transboundary damage, now part of Article 26 of the American Convention, or whether the extraterritoriality threshold has in fact been collated with the human rights obligation to prevent transboundary damage. Importantly, subsequent case-law, including the one concerning the requesting State, would offer further guidance on the concrete content and scope of this very pertinent A/O.