Tu Globalista: Lo que sucede en el mundo.

The principle of prevention, has been understood as a customary rule of due diligence required by a State on its territory. This principle was first acknowledged by the International Court of Justice in its very first case between the UK and Albania over the Corfu Channel. Under this case, the Court found that there is «every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.» Such principle has been found to apply in international environmental law. Under this regime, the Court in the Pulp Mills case (Argentina v. Uruguay) found that a «State is thus obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State.» (Judgment, ICJ Reports 2010, pp55-56)

The principle of prevention can then be understood as a general obligation by a State to prevent activities in its territory that can cause harm to another State. In this sense, the two important elements are that the activities are made «knowingly» and the concept of the state. Knowingly can be by direct engagement, connivance, or acquiescence. The other issue is that of a state. This bears relevance to the recent case lodged by Nicaragua against Germany regarding the Occupied Palestine Territory.

It is interesting to see whether the export of armament from Germany to Israel, signifies a violation of a principle of international law. How could Germany be held responsible for violating international law? How the principle of prevention applies in this matter?

The principle of prevention seems to be a principle that is not a stand alone principle. Rather, it is a principle that is based on other obligations, for example, in the Corfu Channel case, the prevention principle was applied in relation to the obligation by Albania to allow the free navigation of UK vessels in times of peace. Under the Pulp Mills case, the prevention principle seems to be applicable in cases involving the avoidance of environmental harm.

Therefore, in the case of a possible violation of an international damage, what rule of international law is Germany probably violating?

In accordance with Nicaragua, Germany had violated the Convention on the Prevention and Punishment of the Crime of Genocide. From the title there is the word prevention, therefore, it seems to be apposite to apply the principle of prevention as found in international law.

What rule of the Genocide Convention in particular is probably violated? Nicaragua has claimed that Germany is in violation of Article III. The main obligation, however, is under Article I, the parties are prevented from engaging in actions that could lead to a genocide.

Now the issue is: which state is endangered by the acts committed by Germany? Is it Palestine? Or is it Nicaragua? The answer to this must lead to Nicaragua. The Genocide Convention can be understood as a treaty with erga omnes obligations to its signatories, at least. A violation of the treaty implies damage to all other contracting parties.

In this case, the prevention principle establishes a due diligence obligation to avoid actions that could endanger the rights of another state. This means that Germany, under the principle of prevention, is obliged to prevent activities in its territory that could lead to a violation of the Genocide Convention. Since Genocide is an obligation erga omnes.

It is an interesting argument that can have different ramifications.