New Zealand Journal of Environmental Law
Last Updated: 12 February 2023
The Precautionary Principle:
A Discussion of the Principle’s Meaning and Status in an Attempt to Further Define and Understand the Principle
Stephanie Joan Mead*
The precautionary principle is an important risk analysis concept playing an essential role in evaluating environmental risk and managing resources. Although recognition and acceptance of the precautionary principle has increased, uncertainty remains in determining a universal definition for the concept and reaching agreement on its status in environmental law. This article examines the meaning and status of the precautionary principle in an attempt to further define the principle and highlight the difficulties and criticisms surrounding the principle. Regardless of the various problems that hinder its current application, this article will assert that due to the inherent environmental importance of the principle it will continue to evolve and gain momentum as a fundamental concept for the protection and management of environmental resources.
The idea of precautionary measures being applied in law and environmental management is not a new approach.1 The old maxim “better safe than sorry” has
* BA LLB(Hons) LLM(Hons) (Auckland). This work is a condensed version of an International Environmental Law paper submitted as part of the completion of my LLM(Hons) submitted to the University of Auckland in June 2003. I wish to acknowledge the kind assistance and guidance given by Associate Professor Klaus Bosselmann from the faculty of law at the University of Auckland.
1 Trouwborst, A., Evolution and Status of the Precautionary Principle in International Law, International Environmental Law & Policy Series, Vol 62, Kluwer Law International, London (2002) 285.
often been abided by when dealing with changing technology or science that may affect our lives and the environment that surrounds us. The “precautionary principle” as it is often termed, takes this idea of precaution to a new level by applying precautionary measures wherever an action may cause harm, even if the possibility or extent of the exact harm is not proven.2
The precautionary principle is a term often applied in draft documents, papers, environmental and legal writings and more recently in the legislation and regulations of individual states as it gains status in their case law. However, strangely for a term so widely applied with such a strong following among nations, lawyers, environmentalists, scientists and academics alike, there is little agreed upon about this principle.
It has found its way into international recognition as it aims to “formalise the application of precaution to regulatory decision making”3 and yet, it still has no set definition. It is plagued by ambiguities and there are no set limits or rules as to its application. Debate still occurs over its placing with other precautionary strategies and how these precautionary scientific methods should actually be integrated into legal decision making. Its full impact on environmental law is still unknown as its status is yet to be formally recognised – on either ends of the spectrum it has been referred to as either a general policy or a legally enforceable rule.
While the above issues require extensive examination it appears that only one thing is agreed upon as being abundantly clear – “the precautionary principle will not go away. It is here to stay.”4 This paper will examine the precautionary principle looking at its history, meaning and status in an attempt to further define and understand the precautionary principle.
2. HISTORY OF THE PRECAUTIONARY PRINCIPLE
Precaution has always played an essential role in evaluating environmental risks and managing resources.5 While every action taken by people may pose benefits or carry out a certain purpose or function, these actions always involve positive and negative effects. While we may aim for a certain outcome, it is prudent to
take notice of the risks involved and to build precaution into the action, to minimise any risk or loss likely to occur while maximising the benefit. This is the basic thought pattern used by regulatory decision makers to receive the maximum benefit from their actions. Here the application of precaution is obviously implicit6 whereas the effect of the establishment of a clear precautionary principle makes it explicit. Overtime this idea of precaution has been bought into focus and formalised. This has the potential to “make environmental decision making more deliberate, transparent and coherent”.7
The origins of the precautionary principle evolved out of the “German democratic socialism of the 1930’s”.8 The idea arose at a time when a relationship was being constructed between the individual, the economy and the state to encourage the recognition that the improvement of a society was intrinsically linked to the improvement of the natural environment on which it depended.9 Here, the precautionary principle was first known as “Vorsorgeprinzip”10 which literally translates to “principle of prior care and worry”11; this idea of “prior care and worry” was being fostered by the law long before identification of these ideas as principles. Assessing care and worry is key to the law. As stated above, the lowering of the risks involved in our activities is commonly accepted throughout legal decision-making. However some argue that the concept of Vorsorgeprinzip is more then a strict translation and cannot be reduced to merely “foresight planning”.12 It is about the preservation of the entire balance between humans and their interactions with the environment. Its intervention powers gave it an underlying strength in the social planning of the economy, technology and morality13 of the times. The open ended defining of precaution and its broad influence has made it a concept both “feared and welcomed”14.
From its origin in Germany, the acceptance of precautionary thinking in matters effecting the environment has gradually evolved.15 Though it has been recognised as a valid approach since the 1970’s in domestic legal systems it was not until the early 1980’s that it was recognised in the international arena.16
Here its guiding qualities were recognised in environmental decision-making where lack of scientific uncertainty made it difficult for decision makers to implement management schemes. This was first deemed acceptable in the management of the marine environment and has since spread to other environmental issues recognised on a global scale. In international North Sea Ministerial Conferences17 Germany hinged proposals on the Vorsorgeprinzip principle and this principle was slowly integrated into international marine protection law and policy.
The concept was further invoked in the Oslo and Paris Commissions before entering global marine environmental schemes.18 The precautionary principle became acceptable in international policy discussions in relation to the marine environment. The “explicit formulation of the precautionary concept at the international level”19 was introduced into the Declaration of the Second International North Sea Conference on the Protection of the North Sea 1987 which stated that:
...in order to protect the North Sea from possible damaging effects of the most dangerous substances, a precautionary approach is necessary which may require action to control inputs of such substances even before a causal link has been established by absolute clear scientific evidence.20
The value of the precautionary principle was being increasingly recognised on the international forum but it was not until 1992 and its adoption in the Rio Declaration on Environment and Development (‘Rio Declaration’) at the United National Conference on Environment and Development (‘UNCED’) that the concept become “intrinsic to international environmental policy”.21 Here the precautionary principle was clearly shown in principle 15:
...in 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.22
To some, the inclusion of the precautionary principle in the Rio Declaration represented a turning point in precautionary thought. It had slowly achieved international acceptance as a valid concern in environmental management where decision makers deal with scientific uncertainty. Today, it is incorporated into “multilateral environmental agreements and declarations, and is also appearing in local laws and scattered judicial opinions”.23 Strangely however, even though the precautionary principle, in many versions, is often quoted throughout documents, its exact definition remains obscure.24 Its far reaching usage throughout environmental management without a united specific definition has “generated significant uncertainty and disagreement”25 regarding its definition, usage and status. This has lead to severe criticism of the concept and its continued infiltration into international law. On one side, environmentalists argue that the concept has provided a basis for “early international legal action to address human activity which is likely to have an adverse impact on the environment”.26 This is sharply contrasted by the view that the lack of certainty in the definition of the precautionary principle leaves it open to abuse and the possibility for over-regulation and a restrictive hold on management and development.27
Before these conflicts can be discussed further, now that the history of the concept has been established, it is important to consider if one can argue that a precautionary principle exists at all given the fact that the definition remains obscure. Some legal academics have argued that given the “important differences between various formulations of the precautionary principle it seems inappropriate to refer to “the” precautionary principle in the singular”.28 If this is actually the case then no set precautionary principle actually exists and it is reduced to a concept that has been recognised and edited into various forms in international documentation.
This uncertainty requires further discussion, as it is the basis for the argument that the precautionary principle does not exist and is merely the construction of a variety of international policy makers applying the general concept of precaution.
3. CAN THE PRECAUTIONARY PRINCIPLE BE DEFINED?
3.1 Problems in Defining the Precautionary Principle
The precautionary principle is plagued with uncertainties. Across the board there appears to be no set definition, with each application of the principle defining it using its own agreed wording. This in itself leads to uncertainty and weakens the application of the principle. Without a set definition we are forced to look at various declarations and how the precautionary principle is internally defined in trying to establish a set definition. This in itself is contentious. The wording of the principles is often so broad a clear understanding of the concept is problematic. This difficulty can be illustrated by reference to the United Nations General Assembly Resolution of the World Charter for Nature 1982.29 Here, in addressing “activities which are likely to pose a significant risk to nature”30 the Charter declares that “where potential adverse effects are not fully understood the activity should not proceed”. In interpreting the meaning of the precautionary principle from this definition one could reach the conclusion that the directive would be, if taken literally, “don’t do anything”.31 This is due to the uncertainty attached to the words “adverse effects ... not fully understood”. If taken literally, this would mean that unless we had an absolutely full understanding of the activity and all potential adverse effects, we should not continue in this activity. History has shown us even in areas where the action was considered completely safe that the adverse effects are never actually “fully understood” – often we are affected by adverse effects we had not even contemplated which is why they manage to have such dire consequences. This highlights the important difference between adverse consequences that we are aware of and acknowledge and those we are ignorant of until they actually surface. It is impossible for us to categorically say we are aware of and have contemplated all the effects. To do so would be an unrealistic expectation on our technology and scientific knowledge. It can be seen that the term “not fully understood” could easily include all our actions in it’s ambit leaving any state that followed such a directive unable to operate.
Similarly the 1992 Rio Declaration is hindered by uncertainty in its definition. It has been highly criticised for addressing “would be regulators with a triple negative”,32 i.e. “not having “full scientific certainty” is not a reason not to postpone “cost-effective measures to prevent environmental degradation”. 33
Again, as in the resolution above, “full scientific certainty” is criticised as a “red herring”.34 The effect of this literal interpretation of “do nothing” without “full scientific certainty” has been viewed as an unfortunate and unintended definition resulting from the broadness of the words used. No one is serious about applying the definition in that restrictive form. However the controversy continues in how we then choose to redefine what constitutes “full scientific certainty” to allow us room to move. This varies throughout jurisdictions depending on the values placed on what is an acceptable level of knowledge before scientific certainty has been reached. Due to this principle 15 of the Rio Declaration has been criticised as a definition of the precautionary principle that “offers us nothing helpful” in our quest to define the principles true meaning.35
This uncertainty in the definition of the precautionary principle and the lack of consensus on its meaning has been caused in part by the “language of international diplomacy”.36 The inherent difficulty in defining principles that are to be applied across different jurisdictions is in reaching agreements between all the parties that are involved. It is no easy task to encourage separate states to discuss these issues and accept the concepts or ideas of others when it may have a binding effect on their home jurisdiction. States can be cynical and reluctant to follow the suggestions of others and it is rare that a full consensus can be met without many compromises.
Often the negotiators of these multilateral agreements are in the difficult position of leaving concepts broadly defined to satisfy states that cannot agree on the specifics of a concept and yet creating a definition which is narrow enough that it will hold some value in its application. In these instances “some degree of vagueness is less a vice than an art form, a pre-requisite of governing consent to move forward”.37 By using these broader terms with uncertain meaning negotiators are able to create a “seminal moral commitment”38 between states at international law. While some are critical of how these documents are drafted, this is largely a question of how states actually speak to one another.39
The inherent problem in using the broadest terms in order to reach agreement between states however is that it opens the concept up to abuse in its interpretation and the uncertainty of the definition can lead to an arbitrary application of the precautionary principle. When the precautionary principle is outlined in international law it becomes a tool used by states in implementing the principle
into their law. The more open the meaning “the larger the room for contentious and self-serving interpretations.”40
As its recognition in international law increases, the lack of shared meaning of the precautionary principle continues to frustrate those struggling to apply it; there is still no clear consensus on its meaning. Though the definitions highlight to us that each precautionary principle shares the common idea that “scientific certainty is not required before taking preventive measures”41 this still fails to answer “the critical question of how much precaution to apply in a given circumstance”.42 Different versions of the precautionary principle vary in the level of the threat necessary to trigger the application of the precautionary principle from “threats of serious or irreversible damage” to “possible risks” - a discrepancy of enormous policy importance”.43 These differences may be illustrated by comparing two well-known definitions of the precautionary principle found in the Rio Declaration in 199244 and the Wingspread Statement in 1998.45
The words of the Rio Declaration apply to “threats of serious and irreversible damage”46 in contrast to the Wingspread Statement which refers to an activity that “raises threats of harms to human health or the environment”47 which could “presumably apply to any risk”.48 In contrast to the Rio Declaration which can be interpreted as requiring the risk of environmental degradation the Wingspread Statement has a broader, far reaching application. They also conflict in whether there is a positive duty to act or not under the precautionary principle with the Wingspread Statement establishing a positive duty by stating “precautionary measures should be taken”, whereas the Rio Declaration imposes no positive duty to act.49
The difference in the definitions of the precautionary principle that are available at international law causes serious concern as the combined effect of applying these numerous definitions suggests the application of the precautionary principle can result in “inconsistent regulatory outcomes” throughout international law.50
Regardless of the variety of definitions available for the precautionary principle no single formulation of the principle appears to be adequate to create an applicable decision making rule.51 Recognising this problem, the European Union during a European Commission in 2000 tried to address this by clarifying the meaning of the precautionary principle. While no set definition was agreed upon, progress was made in agreeing that the precautionary principle “applies only to risk management ...and is triggered only by risks identified by scientific risk assessment”.52 The European Union also cemented the value of “cost analysis” in the application of the precautionary principle. This has been hotly contested by many advocates of the precautionary principle who see the cost consideration as an unnecessary incorporation that will hinder the principle’s effectiveness in environmental protection. Such strong debate over a fundamental part of the precautionary principle’s application illustrates clearly the “unsettled meaning of the precautionary principle”.53
Even though the European Union made an important contribution to the clarification of the precautionary principle there is still no concrete guidance as to when and how it does or does not apply. Without these limitations being clearly laid out in accepted guidelines in international law there is criticism that the precautionary principle may be wrongly applied and will create a vacuum that will restrict technological advances as no advances can be made without the possible sacrifice of some scientific risks.54
The lack of a unified definition can lead to the problem of an arbitrary application of the precautionary principle. In examining case law, it can be seen that the precautionary principle is being increasingly recognised and considered in international law. While this is establishing some explanation as to when and where the principle is being applied, very few decisions actually aid in providing “any analysis of why the precautionary principle applies...and why the precautionary principle requires the result reached in that specific case”.55 It appears the precautionary principle is being applied merely as a weight to tip the scale in favour of a course for greater protection of the environment rather then providing an examination of the actual concept itself.56 This record of case law suggests if not illustrates the “resilient arbitrariness in the application and requirements of the precautionary principle”.57
Another cause of this lack of clarity is that in the defining and application of the precautionary principle the links between the principle and its founding concept of Vorsorgeprinzip appear severed. The spirit of the original concept required not only “foresight” but also “fore-caring” which has not been carried forward in subsequent interpretations of the precautionary principle.58 To define the precautionary principle as determining what risks are acceptable goes against the heart of the original Vorsorgeprinzip concept that seeks to use careful planning in the first instance to avoid the risks.59 The hope was with the stimulation of an interest in environmentally friendly strategies the protection of the environment would became second nature in the development of technology and the making of regulatory decision makers and would not be seen as a threatening obstacle to fight against or overcome. The current precautionary principle needs to be reconnected with its foundations in order to develop in a more harmonious way with scientific and technological development.
Analysis shows the precautionary principle has also found itself isolated from other environmental management, and risk management theories. Rather than working co-operatively in a joint framework its lack of clarity stems from “the failure of the precautionary principle literature...to make much connection with the impressive bodies of work on decisions under uncertainty, cost-benefit analysis, and risk management”.60 To successfully define and implement the precautionary principle, its interrelationships with other risk management strategies must be fostered and the knowledge from these other principles applied.
3.2 Does the Precautionary Principle Even Exist?
In asking if the precautionary principle can be defined, it is a matter of degree. While it cannot be said that the precautionary principle does not exist, the exact shape and form of the principle is still uncertain. At this current time the precautionary principle does not exist as a single principle. It has no one definition, no set guidelines as to when it will be applicable and no universally recognised power of enforcement. In this way the existence of a sole precautionary principle, as in “the” precautionary principle, cannot be said to exist. However, the concept, which is commonly referred to as “the” precautionary principle, is strongly recognised throughout international environmental law as having a definite place in risk management.61
While one set precautionary principle may not exist in isolation, the body of law and implementation of the precautionary principle or approach cannot be ignored. We struggle with a series of uncertain definitions in an effort to create one overarching principle. Some academics such as Stone62 argue that this is impossible for anyone to “enunciate a principle that is at once both universally applicable across all risks and more useful than ‘take care’”.63 However the truth of this criticism depends on the level of detail given in the defining of the precautionary principle and whether it is accompanied by guidelines or supplementary discussion for its application in a wide variety of cases. While the creation of one sole precautionary principle may be criticised as too hopeful, to rid our selves of the precautionary principle due to its troublesome application would be to deny the positive results that the application of the principle can bring. This denies the current status and strength that the precautionary principle has already achieved in its recognition in international law and cannot be seen to be in the interest of anybody.
Instead analysis of the precautionary principle as it currently stands can draw together the many interpretations and identify a common thread or thought running through the precautionary concept. In doing this it may be possible to highlight the key parts of the precautionary principle and perhaps create one definitive principle in the future. While a set definition may be difficult for states to agree upon, the aim should be to “lay a foundation for clarifying what properties of the unfolding challenges might warrant what sorts of cautious responses”.64 As more thought and debate occurs surrounding the precautionary principle it is hoped that a shared discussion will occur between states, with the inclusion of environmentalists, scientists and legal academics. If the precautionary principle can be closely aligned with other environmental risk strategies and if the concept can be given a fresh angle as a principle to maintain during development of new strategies (rather then a test to fight against once the strategies are developed) a new precautionary principle will have emerged.
By identifying the links and common ideas between the current definitions of the precautionary principle we can see that the principle itself is not beyond basic definition. Furthermore new definitions of the precautionary principle such as in the Earth Charter may already have improved the future and the implementation of a definable precautionary principle.
4. DEFINING THE PRECAUTIONARY PRINCIPLE
4.1 Drawing Together its Many Interpretations to Find a “Common Thread”
While much criticism is heaped on the precautionary principle for its lack of clear definition, the debate as to how to “define” the precautionary principle often overshadows the equally important question of “why” the doctrine figures prominently in today’s international community”.65 Even though there is no consensus on the surface of it, the international community recognises the precautionary principle “as a theory that must be addressed in domestic and international environmental policies”.66
Accepting that a united definition has not been found, in examining the precautionary principle in its various applications in international law a fundamental question remains the same – “what behaviour does the principle promote?”67 With this clearly identified, our understanding of the precautionary principle and how to implement it are enriched far greater then by the deriving of a short definition. In reconciling the interpretations of the precautionary principle, although the wording may change, one basic premise stands out and this can be seen as the core of the precautionary principle:
... Specifically it requires that where a causal link cannot be shown between the activity or substance introduced and a potential harm, extreme caution must be taken before allowing such an activity.68
While the wording changes all approaches show that even if the risk cannot be proven to exist, care should be taken due to the potential of a risk being possible.
In developing this into a recognisable precautionary principle several difficulties need to be addressed. One problem that has been commonly overlooked is the need for policy makers to recognise and account for the “strong differences of, and attitude towards, risks”.69 Unless this is done the principle cannot be uniformly interpreted throughout the world, as states and individuals responsible for applying the principle will have different opinions as to the risk involved and the effect of that risk on the environment.
In defining the precautionary principle it must be taken into account that in addition to people reacting to risks differently, risks themselves can be
“objectively different”.70 Throughout different jurisdictions the way risk is evaluated depends on the values of that jurisdiction. In many instances this is affected by how much value the state places on the data of scientists or environmentalists, or depends upon whether the data is even available and how it has been derived. It is possible that states are more likely to be influenced by data derived from their own experts regarding their own location which may not truly reflect the environmental reality on a global scale. Although variation occurs throughout jurisdictions, generally the actions of each state leans toward caution. The above problem will be helped by the sharing of data and information between states and the consideration of precaution on a more global level.
Some of the motivation for the precautionary principle can be strengthened by “investment in generating information, such as by-product labelling, transparency of institutions”, “right to know” and “duty to warn” statutes.71 While this is a strong start toward a united definition, sharing of information between countries will not effect the interpretation of these risks and “will not reduce and reconcile conflicting evaluations of the un-eliminated risks”.72 It is difficult to achieve a global view as the perspective of each state is affected by its national and cultural values and “attitudes towards science, sovereignty and capitalism”.73 In identifying what we consider ‘a risk which has effects that are not fully understood’ we must consider that whilst some countries may feel that a risk is acceptable, others will feel that it is too uncertain. This is best explained by the following quote from the Bergen Declaration that shows that “one person’s ‘unacceptable consequence’ is another’s ‘regrettable necessity’”.74
Keeping these considerations in mind, the definition of the precautionary principle must be “rooted in respect for others, and in the benefits of co- operation”75 if there is to be hope that a definition would be accepted and uniformly applied across all jurisdictions. This is important when dealing with environmental issues on a global scale. To unite the viewpoints across states to allow for uniform application, care must be taken in “improving the legitimacy and consent-building capacities of global institutions”.76
4.2 Elements of the Precautionary Principle
In studying the various definitions recognised for the precautionary principle, four basic elements can be identified “regardless of the formulation”.77 The first element requires a “threat of harm”.78 In keeping with the definition found in the Rio Declaration, this threat can be either known or credible. In satisfying this element no actual scientific proof is required. The exact nature of the threat cannot be defined further as the gravity of the threat varies between definitions from ‘any perceived harm’ to those which include “specific language that the harm is serious or irreversible, or both”79 as in the Rio Declaration. While no proof or evidence is required of the certainty of the harm occurring, it is likely that “vague notions and groundless fears”80 would not be accepted as evidence of harm and would more likely be considered mere speculation.
The second element shows that the precautionary principle applies in situations were there is a “lack of scientific certainty or evidence”.81 This acts as a positive reminder that where knowledge is incomplete or scientific evidence is not certain as to the effect of a risk, this situation must be treated with precaution. This idea is extended in the third element that the principle will apply where the “cause and effect relationship”82 is not yet proven. The fourth element of the principle states that there is a “necessity or duty to act”.83 This is demonstrated by the fact that the precautionary principle is invoked by interested parties to protect environmental welfare and management without the need for a proven link between cause and effect.
4.3 The Six Basic Concepts of the Precautionary Principle
Though our understanding of the precautionary principle is generally limited by attempting to reach a uniform definition, a better understanding can be reached by identifying and discussing the “six basic concepts now enshrined in the precautionary principle”.84
The first of these is “preventative anticipation”.85 The nature of the precautionary theory shows it is preventative in nature. Rather then allowing the damage to occur, the precautionary principle anticipates whether there are any risks involved and if so demands that such risks must be carefully addressed before the action is allowed to be carried out. By taking action in advance of any exact scientific evidence, the precautionary principle emphasises its interest in avoiding any possible damage occurring on the grounds that “further delay will prove ultimately most costly to society and nature, and in the longer term, selfish and unfair to future generations”.86
The fact that no scientific proof is needed to link the risk of harm to the environment with the contemplated action shows that the “margin of tolerance”87 for environmental harm is very low. In safeguarding the environment and its resources a strict application of the precautionary principle means that the margin “should not even be approached, let alone breached”.88 The safeguarding effect of the precautionary principle is often credited with “widening the assimilative capacity of natural systems”89 by deliberately rejecting resource use where the use is possible but undesirable.
This includes cost effectiveness analysis which has been included in several definitions such as the Rio Declaration90 and is accepted by the European Union in the European Commission in 2000. They agreed that the precautionary principle incorporates proportionality and “should include an economic cost- benefit analysis where this is appropriate and possible”.91 As stated previously, this has been heavily criticised by those who state the incorporation of economic considerations into the precautionary principle weakens its powers.92 However, this concern must be balanced against the concern of states that a “degree of restraint”93 must be shown in applying the principle to avoid the prospect of undue costs resulting from the broad application of the principle. Unlike conventional cost benefit analysis used in the law, this system is affected by the
need to weigh our ignorance about the risks of harm against the likelihood of danger for future generations “if life support capacities are undermined when such risks could consciously be avoided”.94
The precautionary nature of the principle subjects behaviour to regulation before the harm is actually demonstrated.95 This is a departure from the “traditional, tort-orientated approach which precludes the presumption of harm as a result of an activity of another until a party can show damage and causation”.96 This means that the burden of proof is effectively reversed so that the onus of proof in environmental pollution cases is “placed upon the body proposing a possibly harmful activity to show that no harm will be caused”.97
This shift in the burden of proof by the precautionary principle is “largely due to its initial evolution as a pollution control doctrine”.98 In 1990, at the signing of the Bergen Declaration by 34 nations, (which was believed to be in preparation for the 1992 meeting of the UNCED in Rio99) the precautionary principle was discussed in light of sustainable development. The Bergen Declaration recognised that the precautionary principle would “aid in the prevention of environmental degradation through a shifting of the burden of proof”.100
While this appears straightforward and in some places can be satisfied by obtaining an environmental impact assessment,101 it can become problematic in situations where it may be impossible to provide the scientific proof of the “harmlessness of the environmentally sensitive activity”.102 The shifting of the burden of proof has been subject to criticism from numerous legal and environmental academics. One concern, as mentioned above, is the situation whereby the complete harmlessness of the activity cannot be proven. This, when coupled with strict liability from any harm resulting from the activity being carried out even where the burden has been satisfied, could “throttle invention”103 and curb the growth of potential technology which may be beneficial to human existence. It must be noted that the shift of the burden has had no positive effect on risk assessment – the causal links between activities and harms continue to
be uncertain with policy based largely on educated “guessing”.104 The reversal of the burden has also failed to address situations where the environment threatening activity is aimed at actually protecting the environment.105 An example of this is where microbial agents106 could be used in attempts to clean up an oil spill. This creates a conflict where a balance must be struck between “living with the status quo, the untreated hazard, as against the risks of the re-mediation agent getting loose and going awry”.107 This scenario has been contemplated by the clarifying of the rule to be an “environmental-slanted burden”108 where the burden is tilted to work “for, rather than against, the environment”109 so in application it would be favourable to the environmental cleanup. However, this theory provides little clarification if it cannot be proven that no harm will result from the use of microbial agents in cleaning up the oil spill.110
Even though the reversal of the burden of proof has faced criticism, it does provide a tough hurdle for parties to get over before their environmentally risky behaviour can be authorised. This encourages parties to consider that unless they can show the harmlessness of their activity they will not receive consent. The effect of this may be that parties are more careful in their choice of activities and may be forced to use less risky alternatives. Rather then stifling technological advancement this may change peoples perception of environmental precaution from a burden to be satisfied to a new way of developing technology. In satisfying the burden people may be encouraged to use new “imagination and creativity in technology, economic valuation, technological advances and unusual forms of ameliorative compensation”.111 These benefits and criticisms show how the shift in burden has been regarded as either a “dead-weight or a touchstone for the visionary”.112
The relevance of the shifting of the burden of proof is best explained by using a practical example to show how it would be applied, the effects of its application and the positive benefits that it will achieve. This scenario examines the application of the precautionary principle, focussing on the reversal of the burden of proof, to “agricultural biotechnology”113 and the release of genetically engineered (‘GE’) crops into the environment and food chain. Since the mid
1990’s GE crops have offered an “unprecedented change in the world’s food and agricultural systems”.114 The term GE crops refers to organisms that have been developed using the recombining of DNA to transfer genes between organisms and across the “reproductive and taxonomic boundaries,”115 (this is the distinction between GE and traditional selected breeding and hybridisation processes).
The consequences of the GE process have been a topic of hot debate among scientists, environmentalists, academics, and states since the conception of the original theories in the 1970’s.116 While there is no concrete data as to the effects of GE crops an increasing number of studies urge that the releasing of GE crops and their consumption could result in “unforeseen and potentially serious environmental and health effects”.117 Due to the “newness” of the technology and the limited historical data that is available on GE there is a great deal of uncertainty surrounding the hazards and benefits to the environment. As such, the precautionary principle provides the perfect test to determine how GE should be controlled or even prohibited.
While risk assessment has been carried out in the past, the true scientific essence is often skewered by political and economic concerns among states. The political commitments of states, and the potential economic benefits of GE crops means that previously commissioned research in this area has been narrowly focused and based on “several problematic and largely unchallenged assumptions”.118 These include the assumption that GE crops are not inherently different or more dangerous then normal agriculture and that the small scale trials that have been consented to will be representative of the effects of GE crops when released and applied on a larger scale. Other assumptions include that any unforeseen hazards can be adequately predicted and controlled and that GE crops are essential to feed the population and to provide for the economy.119 This demonstrates the need for a clearly regulated framework of risk assessment before GE crops can be readily accepted and released freely into the environment. The reversal of the burden of proof may provide the exact pressure for GE promoters to carry out thorough and efficient research on the effects of GE, as satisfying the burden would be a compulsory requirement for the consent to carry out their activities.
The practical implication of reversing the burden of proof would mean that the developers, exporters, and promoters of GE crops and other “potentially
hazardous technology”120 will have to demonstrate the harmlessness of their technology and satisfy the burden that there are no risks involved and no less harmful alternative to implement. Previously the onus was on the public to prove the harmfulness of the activity by either providing scientific proof of the potential risk (which was difficult without the exact detail of the scientific processes being used) or proof that the risk had actually occurred and environmental damage had been done. In this way the regulation of the activity came too late to prevent what may be irreversible harm to the environment.
Now the promoters of GE, who are in the best position to understand and test their technology, must demonstrate the safety of their technology by using risk assessment and data analysis. Unless the burden is satisfied the activity may be prohibited under the precautionary principle. This has provided a useful hurdle by forcing GE crops to stay in the “labs” until further information is known about their environmental implications.
However, in applying the reversal of the burden of proof to GE crops, several issues must be addressed. Care must be taken that comprehensive risk assessment actually takes place and that the “assumptions of safety” discussed earlier are removed so that promoters cannot simply assume that “lack of evidence of harm is evidence of lack of harm”.121 A framework must be implemented which ensures that if the promoters of GE satisfy the burden of proof they can be held liable for the “long-term, unprecedented and / or irreversible effects of the technologies they develop and employ.”122
These problems can be dealt with when examining the practical affect of applying the reversed burden of proof. At present, the promoters of GE crops have to conduct field trials and experiments to convince government regulators that their technology is safe to develop. While this provides a starting point, by applying the reversed burden of proof this would ensure that unless adequate evidence of the harmlessness of the activity is provided, it would not be released into the environment. In practical application this would mean that promoters of GE would have to show extensive testing of the safety of the technology.
This is a more substantial requirement then merely proving that their GE crops have had no adverse effects in field trials. To ensure thorough risk assessment this will involve comparative testing in the first instance to prove that there are “no less damaging alternatives,”123 once this is satisfied the safety of GE crops can then be addressed. An international framework of recognised acceptable risk assessment and comparative testing methods needs to be enforced so that any testing, in attempting to satisfy the burden of prove, recognises
uncertainty, alternatives, and uses a broad definition of harm when testing the benefits of the technology.
The application of the reversal of the burden of proof should include public disclosure and the independent review of testing procedures and results, to ensure accuracy and transparency in the decision making process by allowing for third party review of the data, rather then just the analysis of the actual results put forward. In demonstrating the harmlessness of their activity promoters of GE should also adopt measures to protect against and minimise the effect of adverse impacts on the environment. Though these are preventative rather then precautionary, they add in reducing the risk of the activity and show the ability of the promoters of GE to satisfy their liability for any resulting risk.124
Financial liability in the form of “assurance or performance bonds”125 will shift the burden of responsibility as well as the burden of proof onto the heads of promoters of GE and will provide incentive to take precautionary measures to avoid liability. This would work by promoters of GE posting a bond “equal to financial costs incurred if the worst-case situation were to materialise”126 and if no harm occurs within a specific time frame the money will be returned. The problem with this control is that it assumes the harm resulting from GE crops will be reversible and capable of monetary redress. It also suggests that the harm resulting from GE will become evident within a certain time frame – there is no evidence to support this suggestion. However, despite this, financial bonds will provide incentive for promoters of GE to act carefully and it shifts the costs of the risky activity onto the people whom financially benefit.
Therefore, if the reversal of the burden of proof is applied to the situation of GE crops this could result in the containment of GE technology until further detail of the risks involved can be established. Promoters of GE will have to satisfy the burden by supplying risk assessments of their technology and proof that there is no less harmful alternative available. The methods used in collating and interpreting the evidence must be to an internationally acceptable standard and the process of this must be transparent and made available for public and third party review to ensure the promoters of GE do, in fact, prove that no harm will result. If the promoters of GE manage to satisfy the burden of proof they will be subject to liability if harm does eventuate. In anticipation of this the promoters of GE in satisfying the burden must demonstrate the safety measures and containment procedures they have in place in anticipation of harm. Economic bonds may provide some limited monetary security if an activity is allowed and harm should eventuate. While the issues above need further definition, this provides a clear example of how reversing the burden of proof will lead to
benefits by a stricter risk assessment of activities and the containment of these technologies to minimise risk until the strict standard of “no harm” can be satisfied.
The precautionary principle has the positive effect of preventing harm from occurring to the environment. This in turn is evolving the legal notion of ecological harm.127 The precautionary principle is widely recognised as supporting the preservation of environmental resources; protecting resources from harm and through their resulting preservation, providing for future management of ecological resources. This, in turn, “gives a practical emphasis to the thorny ethical concept of intrinsic natural rights”.128
This principle is still very new in its application and practice within the law but it is partly reflected in the ideas of principle 15 of the Rio Declaration which states the “concept of precaution ‘according to capabilities’”130 and the UN Framework Convention on Climate Change131 which states the notion of “common but differentiated responsibility”.132 This principle extends these notions by adding that precaution is “forward looking” but that there “ought to be a penalty for not being cautious or caring the past”.133 This is illustrated in the tight effect of the application of the precautionary principle in an effort to avoid any future repetition of the past abuse of the environment.
While the above interpretations are not necessarily formally recognised in international law they are highly compatible with a general definition of the precautionary principle. From the above analysis and attempt in defining the precautionary principle, it can be agreed that the basic effect of the precautionary principle is that it creates a duty for decision makers to act prudently. The precautionary principle will result in an activity being terminated “where there is sufficient evidence that it is likely to cause harm to the environment”.134 The lack of an established causal link cannot be used to allow the activity to continue. In this respect, principle 15 of the Rio Declaration provides a clear definition of the precautionary principle:
In order to protect the environment, the precautionary approach shall be widely applied by States according to their capability. Where there are threats of serious or irreversible damage, lack of full scientific certainly shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
However, problems still occur in the actual application of this definition due to the uncertainty of “full scientific uncertainty” and “cost effective” as mentioned above. While the interpretation of the precautionary principle is aided by the identification of the four main elements and the six underlying principles as discussed above, these uncertainties in the precautionary principle, when addressed in case law, will stretch the role of the courts.135 Adequate legislative guidance is still required to spell out the exact definition of the precautionary principle.
The problems in clearly defining the precautionary principle have resulted in states being divided in how to apply the precautionary principle. As a result of this the status of the principle is in “sharp debate”.136
5. STATUS OF THE PRECAUTIONARY PRINCIPLE
5.1 Precautionary “Principle” or Precautionary “Approach”?
The terms “precautionary principle” and “precautionary approach” are used throughout legal writing on precaution and while some choose to use the terms largely interchangeably, the terms “principle” and “approach” are perceived differently by legal and environmental academics.137 Throughout this paper the “precautionary principle” has been referred to in the attempt to analyse the various definitions given to the principle and in seeing if a uniform definition was possible. Now that it has been established as existing (albeit in a flawed sense), we must examine if it exists either as a “precautionary principle” or a “precautionary approach”.138 The result of this analysis will affect the status of precaution and the ability to enforce it at law.
Various treaties and agreements use a variety of terms including “precautionary principle”, “precautionary approach”, and “precautionary measures”. This can cause difficulties for “communication and dialogue on how
best to deal with scientific uncertainties and potential hazards”.139 Traditionally both terms have been tarnished by the view of “hard principle” and “soft approach”. This in turn has effected which word has been used depending on the desired flexibility in the application of the precaution. For example, in marine environmental management the term “precautionary approach” is commonly adopted as the fishing industry is nervous about the effect of using the term “principle” in the concern that the term “might unjustifiably be used as a weapon to substantially halt or even halt fishing”.140 The use of the term “approach” here has been defined as an “initial statement about ownership”141 rather than any “close analysis, or fundamental difference of outcome, arising from this choice of principle”.142
However, the use of the term “approach” in relation to fisheries also stemmed from the UNCED “which stressed the need for a “precautionary approach” to ocean development in its Rio Declaration”.143 Here the precautionary “approach” had subtle differences to the precautionary “principle” as previously set out in the Bergen Declaration.144 The Rio Declaration took into account differences in “local capabilities” and limited itself by considering “cost effectiveness”. However the term “precautionary principle” received “significant support”145 from the European Commission in 2000 which drafted a communication on the principle attempting to define it further.146
Some academics argue that although both terms have been developed separately as a precautionary principle / approach, the two actually co-exist together within the same concept – “the precautionary approach is multifaceted and broad in scope, and entails as its essence the precautionary principle”.147 The “basic essence”148of the precautionary principle is reflected in principle 15 of the Rio Declaration; this provides the “underlying concept of the general framework of the precautionary approach”149 which can be tailored to the individual area, such as ocean management.
This argument can be further explained by showing that the differentiation between each term refers primarily to the “degree of the impact of the measures
taken”150 in response to potentially environmentally harmful activities. The approach is seen to give more leeway and flexibility then the more stringent principle. This is supported by an examination of the ordinary meaning of each of the words. An “approach” is explained as a “way of considering or handling something”151 whereas a “principle” is the source of the action or a “general law or rule adopted or professed as a guide to action”.152 Therefore, although the two terms are interconnected, there are advantages in not using them interchangeably and in keeping the distinction between the “precautionary principle” which is a “universally applicable principle”153 and the “precautionary approach” which provides further detail as to implementation and will differ depending on which area of environmental management it is being applied in.154
The decision must be made as to whether we are dealing with an actual “principle” or “approach”. As discussed previously, the concept of precaution is being widely recognised in international law and it is being increasingly included in treaties, agreements and discussed in case law. While there were earlier instances where it was referred to as an approach, generally it is now being accepted that there is a clear enough concept that it can be referred to as an actual principle. This can be seen in the discussions of the European Commission in 2000 and more recently in the Earth Charter.155 The concept of precaution has reached the status of “precautionary principle”. With its increasing recognition and consideration, it becomes a stringent principle to be applied rather then part of a softer approach with a flexibility that could actually undermine its purpose. This is key to the status of the precautionary principle. If it is definable enough for international law to recognise it as a principle, it can become automatically enforceable.
5.2 Nature of a Principle compared to a Rule of Law
The precautionary principle is well recognised and has established itself as an international legal principle.156 In determining the status of the precautionary principle it is important to consider if it is still deemed a principle or has it actually evolved to achieve the status of a rule of law. In discussing this, it is
important to gain an understanding of the nature of a principle compared to a rule of law, and what authoritative value they both hold.
Legal regimes contain a mix of principles and rules. Ronald Dworkin states that the inclusion of both within the regime creates standards, they both “point to a particular decision about legal obligation in particular circumstances, but they differ in the character of the direction they give”.157 Their character and structure define whether concepts are actually principles or rules. The legal rule is more specific then the principle. It comes into play when a certain situation arises as defined in the rule, has definite requirements, and when these are not satisfied it enforces its own consequences that are clearly outlined within the rule. As stated by Dworkin “rules are held to apply in an all or nothing fashion”.158 In contrast, principles do not generally entail specific requirements nor do they set out consequences to be enforced automatically when they are not satisfied.159 Instead a principle tends to “argue in one direction but does not necessitate a particular decision”.160 Unlike rules that are put in place to be followed on the grounds of advancing desired outcomes, principles are followed as a requirement of “justice, fairness or some other dimension of morality”.161
When Dworkin’s theories are applied to the precautionary principle in particular it is agreed that unlike a rule of law the principle does not ask to be followed in an “all or nothing sense”. Due to this, academics have coined the phrase “norms of aspiration” in relation to principles, rather than “norms of obligation” which more adequately reflects a rule.162 The precautionary principle is vague in its terms and as a result it cannot be defined as a rule; some argue that it would not even constitute a principle. However, it is not vagueness in terms of inability to define the concept, but vagueness in terms of the enforcement and exact consequences of precaution, which in turn characterises the precautionary principle as a legal principle and not a legal rule.163
While it may be conceded that in its current state the precautionary principle is not yet a rule of law, it must be considered whether a legal principle can gain the same authority and status as a legal rule.164 Dworkin has answered this to the affirmative illustrating that where a legal rule was not available, legal principles are used to fill the gap in helping judges in their decision-making. In this way principles can be used as “background standards” against which to read and interpret legislation. Dworkin maintains that “the legal authority of binding
principles derives from the contribution it makes to the best moral justification for a society’s legal practices considered as a whole”.165
In contrast to this, positivists, while conceding that legal principles exist and are used, argue that their authority at law can only be explained as conventions contained in “the rule of recognition”.166 Under the rule of recognition, principles are similar to legal rules and derive authority from the behaviour of judges and legislators. However, in looking at international law it is clear that neither Dworkin nor the positivist’s findings are proven exclusively. In examining the European Court of Justice, the Court has applied the precautionary principle as a “normative standard”167 when looking at the health of consumers. The precautionary principle has also been treated as a “legal norm”168 in German environmental law.
Therefore the nature of a principle is generally to supply a reason or method for dealing with a situation but it does not provide consequences or outline definite requirements. Although this is different from the legal rule, which provides these specific details within its character, these differences will not stop a principle from attaining the same authority as a legal rule. In applying this analysis to the precautionary principle this illustrates that although the precautionary principle is plagued by a vast array of different definitions and formulations these can all be combined to show a clear idea or general direction running through the concept. Due to this, the precautionary principle is not stopped from attaining the same authority as a legal rule even as a legal principle. The strength and importance of the precautionary principle as a legal principle is best illustrated by Winifred Lang who stated:
...whatever definition is chosen, whatever distinction one applies, nobody can deny that principles are important tools, but that their normatively in many cases remains a grey-zone phenomenon that policy-makers and lawyers have to live with.169
5.3 Progression from Principle to a Rule of Customary International Law?
When looking at the precautionary principle and its status in international law, academics are in hot debate. In addressing the vagueness or ambiguity of the precautionary principle some argue that the precautionary principle is merely a
“general guiding policy” that does not require implementation as a legal rule.170 If this is true the precautionary principle will be very subdued in nature if confined to a policy role. On the contrary some argue that the purpose of the precautionary principle will only be fully achieved if the precautionary principle evolves into a “legally binding rule”.171 Therefore the next issue that must be examined in determining the status of the precautionary principle is whether “as a rule of customary international law the precautionary principle has already been transformed from a “norm of aspiration” to a “norm of obligation””.172
While the exact extend to which the precautionary principle has become a “norm of obligation” within customary international law is debatable, there is strong argument that at the very least the precautionary principle is an “evolving norm of customary international law”.173 Some argue that even in its broadest sense it is already “crystallised into a norm of customary international law”.174 To analyse whether this shift has actually occurred it must first be considered how customary international law develops. Whether a principle has reached this status depends largely on how it is treated and recognised by the states that implement it.175 Generally a principle is accepted to have become part of international customary law when it is recognised as a principle of importance and is followed throughout various jurisdictions.176 This application of the principle in a uniform manner across jurisdictions generally reflects the notion that the application of the principle has become compulsory and it has been adopted under international law.177
In determining whether a principle has been adopted as general state practice the law of the state must be analysed. By looking at a country’s treaties, national court decisions, national legislation, legal opinions and diplomatic correspondence and the recognition of a principle, evidence can be amassed to support the contention that the principle is a part of customary international law.178 Treaties that a state has entered into and the obligations they have agreed upon also indicate the formation of customs. It must be noted here that treaties are only binding on the parties that enter into them and not on third parties and so they cannot technically form international law which will be binding on all parties. However the claim here is not that the treaties become binding on all
parties by virtual of the existence of the treaty itself, but that it is possible for the “generalisable provisions”179 inside the treaty to give rise to these rules that will then be binding across all states – “the custom is binding and not the treaty”.180 While it should never be assumed that the inclusion of a principle in a treaty means it will be binding across all parties this has occurred in the past, such as in the preamble of the Geneva Convention on the High Seas 1958.181
The International Court of Justice has held that treaties can be relevant evidence for a general principle of law. The test appears to be whether the principle, recorded in the treaty provision, has been applied universally i.e., has been replicated in the practice of states outside the treaty context or whether due to “fundamental discrepancies” between its application in various jurisdictions it has been prevented from being determined a rule of custom.182 Though the exact extent of their impact is debated, there does appear to be a strong notion that “multilateral treaties can, at minimum, assist in the so-called “crystallisation” of emerging rules of customary international law”.183
International courts and tribunals also play a key role in the adoption of principles into international law primarily due to the influence of their decisions and opinions.184
When looking specifically at the precautionary principle, a consistency can be seen across state practice and implementation. This “collective uniformity”185 is key in proving the precautionary principle to be a rule of customary law as although there are differences or broad definitions of the precautionary principle throughout jurisdictions, they all have the same “common thread” running through them. Without this there would be no group acceptance of the principle in any form and no general custom or rule could be derived. In establishing that there is collective uniformity it must be shown that the state practice is “extensive and representative” although it does not need to be universal for it to be adopted as a general rule at international level. It is commonly accepted that states can be legally bound by a customary rule without having “deliberately acquiesced in it”.186 The International Court of Justice confirms this.
5.4 Has the Precautionary Principle become a Rule of Customary International Law?
There is considerable evidence, when looking at the implementation of the precautionary principle in multilateral agreements that it has “crystallised” into a rule of customary law. The implementation of the precautionary principle by domestic and international courts also provides support that the precautionary principle is slowly being discovered as a rule or this may be a reflection of Dworkin’s theory that the principle will be used as a standard to read legislation against, as discussed earlier. While there is no singular definition applied, there is strong evidence for a “collective consistency”187 in the application of the precautionary principle suggesting that the precautionary principle has actually become a part of international law even if the exact details of the principle are yet to be determined.188
Some academics argue that determining whether the precautionary principle is a rule of customary international law using the above reasons has become a moot point due to the strong acceptance of principle 15 of the Rio Declaration which has been universally applied, without even considering if it constitutes a rule of law or not.189 In operating in this manner, we can bypass the difficulty faced with having no universal definition of the precautionary principle.
The precautionary principles change in status has reflected changes in international value and philosophy with the “evolution of a large body of international and national environmental law” and an increased concern for the care of the global environment.190 This shift in legal thought has been reflected in the development of the precautionary approach to a principle and now it stands on the edge of becoming a rule of customary law. The precautionary principle has developed from a general policy or guidance consideration into a “legal tool”191 to be used by environmental decision makers.
In looking at the status of the precautionary principle it does appear to have evolved “from a general policy reference to a legal instrument in every jurisdiction in which is has been adopted”.192 Although it was initially referred to as additional support for judicial decision making, courts have become bolder in their application, using the precautionary principle as a key factor in their decisions. Across Australia, New Zealand, India, Germany, France and Belgium, the precautionary principle has been adopted as an “obligatory legal rule”.193 Its
treatment at the domestic level194 is now being reflected in international law with recent international environmental agreements treating the precautionary principle as “a binding legal instrument”.195 The role of the precautionary principle has been shifted from the preamble of the documents into an “operational requirement in the main body of the treaty text”.196 This inclusion of the precautionary principle and its recognition in international law does suggest that it has been “crystallised into a binding norm of customary international law”.197
However, even though this has occurred, the question remains, given the current state of the precautionary law, should it have this new status? Many argue that the inherent problems in attempting to recognise the “one” precautionary principle in its current form will lead to difficulty. The concept can be considered too vague to create a clear legal requirement that should be binding upon states. The danger of this is that it will lead to “arbitrary and unpredictable decisions”198 and this in turn will make it difficult for courts to fulfil their obligation to ensure the reasonableness of their decisions.199
If the precautionary principle is given such strong status at the current time without further definition, much of the intricacies of the principle will be left for courts to interpret. The danger here is that in the absence of clear criteria but with the compulsory obligation to enforce the principle, the precautionary principle could potentially “be deployed as an outcome-determinative wild card at any time”.200 Any unusual outcomes are in danger of being justified as the result of the application of a compulsory norm of international law.
In situations where the decision is questioned judicial review has always been important in testing the validity of the decision. The availability of judicial review of regulatory agency decisions “is the necessary condition, psychologically, if not logically, of a system of administrative power which purports to be legitimate, or legally valid”.201 The problem here is that due to the “unlimited discretion provided by the ambiguity and indeterminacy of the precautionary principle”202 as previously discussed it may be impossible for courts to actually provide meaningful judicial review.
The absence of guidance on the application of the precautionary principle will also leave courts in the difficult position of having to impose the
precautionary principle but needing to interpret it’s scope and application in order to do so. This may require courts to go beyond their normal role of interpreting, applying and enforcing and place them in the position of defining the precautionary principle and its substance, which is really the role of the law- makers themselves.
Even if it is true that the precautionary principle has in fact crystallised into a rule it is in danger of fading back into a principle unless it is given the “teeth to be applied in the reality of a world environment subject to assaults on all sides”.203 In order to survive as a rule, at the very least, the generality and vagueness of it must be refined and it must be defined to avoid inconsistencies and uncertainties in its application.
5.5 The Current Situation
In summary, although it appears that the precautionary principle is becoming entrenched in international law at a deeper level this suggestion appears problematic. The precautionary principle, due to the problems previously discussed, is argued to be in “disarray”.204 While there is some definition of the precautionary principle, the lack of specific language within the definition will continue to lead to problems in its application at this level. While the precautionary principle appears entrenched in customary international law,205 the truth may be that this cannot yet occur in any significant sense without addressing the issues mentioned earlier. It is more plausible to say that “use of some such term is becoming part of customary law through state practice”206 however “there is no customary expectation of what conduct it implies, a prerequisite to any obligatory performance”.207 More clarity is preferable at the international level before the precautionary principle can adequately fulfil the position of a binding customary norm in international law.
Another problem faced by the precautionary principle at this current time is its implementation. If implementation is fulfilled by the inclusion of the precautionary principle in multilateral agreements, international laws and domestic legislation, then the implementation of the precautionary principle has been a success. The principle is commonly referred to throughout the law and is recognised for its importance. However implementation requires more then just the mentioning of the precautionary principle and it’s inclusion in the decision
making process. To be fully implemented the precautionary process must actually be put into action and implemented within the jurisdictions over which the law applies. On the basis of this understanding, little implementation of the precautionary principle on an international level has occurred at all. Even though the principle is commonly referred to there is little proof of actual implementation. The Earth Charter may provide a turning point on this. Whilst the Charter has not been implemented, it provides a concrete definition of the precautionary principle that is not hampered by ambiguity. The use of the Earth Charter may lead to a new opportunity for “real” implementation of the precautionary principle and the fulfilment of its aims. This will be discussed further in looking at the future of the precautionary principle.
6. THE FUTURE OF THE PRECAUTIONARY PRINCIPLE
In discussing the meaning and status of the precautionary principle we have discovered many problems in its implementation in its current form. Though it is too unspecified to become a “legally binding decision making rule”208 it is often referred to as one. What can be done to address these issues?
One option would be to abandon the precautionary principle altogether. Regardless of the flaws in its application the precautionary principle has a long history in some shape or form in international law. Even though it challenges us to define it clearly before implementation and recognition can really be fulfilled, to abandon this principle because of this difficulty would be to disregard all the positive improvements the precautionary principle can bring to environmental management when effectively applied. The precautionary principle is too valuable to discard because of these problems without addressing them first. To do so would be to “throw the baby out with the bath water”. Rather than give up, policy makers should see these problems with the precautionary principle as an opportunity for further discussion and fine-tuning and the opportunity to face the issue of precaution head on and to create an “explicit legal framework for the application of precaution”.209
Another option would be to place an artificial limit on the precautionary principle by labelling it a policy. This would curb the dilemmas in trying to apply the precautionary principle as a compulsory rule or decision-making instrument. As such the precautionary principle would be narrowed in its application to that of a general objective. In this way the ambiguities of the principles definition would have less effect; definition will be a matter to consider
but no hard-lined definition would be required as there would be no direct application to a specific decision. However such a limit would be artificial and unsustainable.210 While it may be possible to curb its application this does not take into account the full effect of the precautionary principle or the power in the philosophy behind it. The precautionary principle is a theory that is hard to hold back. As a result of the inherent usefulness of the principle when properly applied in environmental management, there will always be the temptation to “push and give the principle greater decision making weight in specific circumstances”.211 Due to this pushing, any decisions made during this time will create a “one-way ratchet toward greater legislation.”212 We will be faced with the same issues as today as we have not addressed these issues but merely pushed them back.
The current application of the precautionary principle has meant that any interpretation or explanation of the ambiguities has been left for courts and policy makers to determine. One option here is to continue this process and to apply the precautionary principle in its current form in international law and hope that through case law and further policy the problems with the application of the principle will sort themselves out. If left long enough it is hopeful that some “consistent criteria”213 could be established for its application without any further intervention. However this is not a sufficient solution for a principle that will be affecting peoples’ lives and our environment. It cannot be left to chance or the slow development overtime if we want this principle to have a strong positive effect. While there are initial “teething problems” with the application of any rule of law we must be careful to avoid the risk of the precautionary principle being attached with any stigma or being taken advantage of due to the difficulty of its application.
This risks years of uncertainty or unfair regulatory decision-making or the abuse of the precautionary principle if the weaknesses in it are revealed and manipulated. Even if the development of the principle is left to its continued application there is no certainty that this will ever result in a clarification of the precautionary principle. If fundamental disputes arise today regarding its meaning given the wide variety of situations the principle could be applied in, there is no certainty that consensus can even be reached without further in-depth discussion.214 It is unrealistic to follow this option and hope for consensus. A true explanation of the principle will only be found through a deliberate effort to discuss the issues and further define the precautionary principle.
The above discussion leads us to question what is the clearest and most beneficial way forward in the future? It is inevitable that the precautionary principle will continue to gain status in international law and in time will be firmly established as a rule of law (if it has not already gained this status). To ensure that the proper application of the precautionary principle and maximum benefit is gained in environmental management, there must be an active effort to define the principle further. With clearer boundaries, guidelines and definitions, it will become a clear legal rule not plagued by the above problems. In particular, it would be useful to determine what factors in individual situations call for more or less risk. During this discussion it will be important to address the fact that different states have a different reaction to risk and a different viewpoint as to the severity of risk. These differences in evaluation must be taken into account in an effort to understand other states better and to achieve a system that different states will be satisfied with and happy to enforce.
In clarifying the precautionary principle in the future, the valuable connection between the precautionary principle at law and other risk and environmental strategies must be fostered, drawing on the knowledge of all forums for a discussion of uncertainty, cost analysis and risk management.215 By reconnecting the precautionary principle and using it in conjunction with these other strategies the overall goal of environmental protection will be better served. On this point, the precautionary principle should also be reconnected with its origin in the German concept of Vorsorgeprinzip by understanding that this embodies an idea of “careful planning to avoid risks in the first place, rather than trying to determine how much risk is acceptable”.216 In increasing peoples understanding of the importance of the principle this may lead to a change in technological innovations ensuring that they develop in harmony with the precautionary principle rather then fighting against it.
This is our best option however it will not be easy to reach consensus on the precautionary principle. There will be conflict over how factors should be weighed and valued considering that “these same issues have been debated without resolution in other contexts for decades”.217 Unless we address these issues head on in a “transparent and productive discourse”218 we will never reach a universal understanding of the precautionary principle.
In looking to the future of the precautionary principle and its ability to satisfy its goals, we must also look at surrounding measures that may be put in place to achieve the aim of precaution. These measures include imposing general duties
218 Merchant, supra note 3, at 1805.
on people to take “preventative, precautionary action in the face of uncertainty”.219 This would ensure that government and businesses are fulfilling the aims of the precautionary principle in the carrying out of their daily business. Such general rights could be established by general guidelines or by creating a positive, enforceable right to a clean and sustainable management of the environment.
The government could also set goals for the protection of the environment and the preservation of resources. These goals could encourage innovation in solving potential environmental risks without the need for causation to be established. The idea of harm prevention could also be taken further to encourage the continual refining of production by identifying the protection of the environment as a key goal. This could be encouraged by economic incentives and may lead to a reduction in environmental waste and an increase in economic competitiveness and innovation.220
By considering alternatives that could accompany the precautionary principle and by continually monitoring the decisions being made under the precautionary framework, environmental conditions could be continually improved and negative impacts anticipated before environmental degradation has occurred.
Therefore the precautionary principle will continue to evolve and crystallise into a customary norm in international environmental law. By continued discussion and refining of the principle in an effort to reach a consensus, the precautionary principle will become a powerful tool once it is accompanied by consistent criteria for its application. As previously stated, the Earth Charter may be a huge changing point for the precautionary principle. While not implemented, it provides a concrete definition of the precautionary principle and may be the beginning of a clearer implementation of the principle.
6.1 The Earth Charter
The Earth Charter is geared towards a “global environmental precaution”221 focusing on the idea of a global approach to environmental management. The principles within the charter operate as guidelines for states to operate under while recognising their duty to pass environmental resources onto future generations. The uncertainty of the quantity and quality of the environment that is needed to fulfil this obligation encourages all actions effecting the environment to be controlled by precautionary measures.222
219 Tickner, Myers & Myers, supra note 58, at 35. 220 Tickner, Myers & Myers, supra note 58, at 35. 221 Bosselmann, supra note 155 at 66.
222 Bosselmann, supra note 155, at 66.
The Earth Charter is a “fascinating instrument”223 in international law as it represents the broad consensus on a wide variety of global principles. Unlike other scenarios where the drafting of principles has been hindered by the language of international diplomacy, the Earth Charter appears unaffected. This has allowed for the further defining and explanation of many environmental principles and furthers our understanding by placing these principles, such as the precautionary principle, into context.224
While the precautionary principle is already clearly established in international law, the Earth Charter provides the clarity in definition required for its thorough application. The benefit of the precautionary principle being defined here means that consensus can be reached after having been considered on a global scale rather than the ad hoc development of the principle by following the explanations carved out in case law.
While the precautionary principle has been broadly defined in prior documents, the Earth Charter is unique in actually discussing the interaction of the concepts, which in turn improves our understanding of how the precautionary principle can be effectively implemented. Part of the reason that the Earth Charter has achieved such clarity on the precautionary principle is because it did not try to define it into a simple sentence. Rather it took the approach of applying broad concepts or guidelines so that the precautionary principle could be better understood and so that the guidelines could aid its implementation.
The inclusion of the precautionary principle in the Earth charter is clearly laid out and unencumbered by complicated language or broad terms that could lead to arbitrary application throughout jurisdictions. Principle 6 of the Earth Charter discusses the application of the precautionary approach. It states that to fulfil our commitment to the environment and future generations by the preservation of our natural resources we must understand that harm prevention provides the key to environmental protection.225 The principle reaffirms the use of a precautionary approach where knowledge is limited or uncertain.
Principle 6(a) of the Earth Charter states that positive action must be taken to avoid the “possibility of serious or irreversible environmental harm even when scientific knowledge is incomplete or inconclusive.”226 This provides for a clearer understanding of the precautionary principle. Previously the term “lack of full scientific certainty”227 was heavily criticised due to lack of clarity and the fact its literal interpretation created a situation that could never be satisfied. By replacing this with precaution where knowledge is “incomplete or inconclusive”
227 Rio Declaration, supra note 2, s15.
it creates an achievable standard. While scientific knowledge may never be actually “complete” in an area, it will be possible to establish whether knowledge is “inconclusive” by establishing a universal standard.
In principle 6(b) the Earth Charter clearly states that the reversal of the burden of proof has occurred and will be applied across all situations. This strengthens the impact of the precautionary principle. The precautionary principle has also been criticised for moving too far from its origins in Vorsorgeprinzip and not adequately addressing the fact precaution is needed to ensure the preservation of resources not only for the present generation but also for future generations. This concept is strongly supported in the Earth Charter as it is based in the concept of sustainable development. As such this problem has been addressed head on under principle 6(c) of the Earth Charter that ensures that the application of precaution will address the “cumulative, long-term, indirect, long distance, and global consequences of human activities”.228
However the most significant effect of the Earth Charter on our understanding of the precautionary principle is that it addresses the frustration with the precautionary principle that there is no universal agreed wording or meaning of the precautionary principle which has lead to confusion, criticisms and arbitrary application of the principle. As previously discussed the precautionary principle is hindered because policy makers have failed to recognise and account for the strong differences in peoples attitudes to and understanding of risks, throughout different jurisdictions. The Earth Charter addresses this issue head on by recognising what has previously been severely lacking – that we need to define these things on a global scale as we are dealing with global environmental issues. The Earth Charter has managed to satisfy the need for the precautionary principle to be “rooted in respect of others, and in the benefits of co-operation.”229 The Earth Charter has done this not only by developing within a process of “world-wide cross-cultural conversation about common goals and shared values”230 but also by actively requesting the open exchange and sharing of knowledge and ideas.231 Principle 8 of the Earth Charter recognises that ecological sustainability will only be achieved if nations develop “international scientific and technical co-operation”232. There is an emphasis on supporting developing countries and recognising that culture plays an integral part in how states contribute to environmental protection.233 This co-operation and sharing among
228 Earth Charter, supra note 225, Principle 6(c). 229 Stone, supra note 8, at 10799.
states is desperately needed to ensure a universal application of the precautionary principle and a strengthening of its status in international law.
Much of the problem surround the precautionary principle is based on the lack of clear definition, which leads to arbitrary application when different jurisdictions attempt to apply it. The Earth Charter paves the way for international discussion on the precautionary principle and the understanding that different states have different values in applying the principle. By addressing this, these issues can be discussed and we are closer then ever to a precautionary principle which has a unified application.
Previous attempts to provide global law in the area have been criticised for failing to recognise the different values different states place on risk management and the different viewpoints states come from in applying the principle. Again the Earth Charter is innovative in that it has a “trans-national, cross cultural approach”.234 This increases the credibility of the Earth Charter among its users and increases its chance of success as it recognises how national and cultural values must also be considered in environmental management. While no document could hope to fully solve this problem, as these difficulties will be inherent in any globally applied document, the Earth Charter has managed to represent a “significant sector”235 of global civil society, making it impossible for states to be dismissive of its leading role in this area.
The Earth Charter is a draft legal document and while the international community has no legal duty to follow it, it has already gained strong recognition though the endorsement of states and international organisations and the interest from legal and environmental academics. The Earth Charter has the ability to become a “soft law” document, as it is not legally binding. The use of the Earth Charter as a soft law document is growing in support as communities start to utilise it as a soft law “that provides an ethical foundation for the ongoing development of environmental and sustainable development law.”236 As it cannot be ratified and enforced like “hard law” treaties or international customs it has been criticised by positivists as having “no teeth” or minimal impact when it comes to the implementation of the precautionary principle. However, the support behind the Earth Charter has been gaining momentum and like Agenda 21, which has had significant political impact and recognition, the “political strength of “soft law” can hardly be underestimated”.237
The Earth Charter can follow in the footsteps of Agenda 21 in gaining international support. Soft law is often considered by states where due to the difference in opinion and the need for different states to agree, specific rules of
law cannot be drafted. Here the language of international diplomacy effectively means that broad statements will be drafted in an effort to reach a general agreement on the concept and its significance. The preference for soft law in these instances illustrates how this could lead to the “official recognition of the Earth Charter”.238
While the above process may not occur the Earth Charter may still become recognised at the level of international law. Like the precautionary principle itself that enjoyed growing support at a national level before it was internationally recognised, the Earth Charter could be promoted among domestic jurisdictions. Once it is endorsed at a domestic level and its significance is broadly recognised, states may enter negotiations to create multilateral agreements and treaties using the Earth Charter as a foundation.239
The most likely path to recognition for the Earth Charter is that it will be recognised for its uniqueness and innovative approach, as “never before have so many people in so many different countries, cultures and religions reached consensus on a central theme of humanity”.240 This directly addresses the previous problems in defining the precautionary principle, which relied on the decisions of individual states rather then recognising the need for addressing global environmental problems on a global forum.241 In this respect the Earth Charter provides an “exciting prospect”242 for a global law by consolidating the “values and beliefs at the root of all civilisational identities”.243
Due to the uniqueness of the Earth Charter in its creation and its clear explanation of the precautionary principle, the Earth Charter may provide the consensus between states and the unified understanding that is needed to further define the precautionary principle. If the inherent ambiguities in the precautionary principle can be solved by further discussion in the international forum, a document like the Earth Charter is likely to be the result as it creates a “new sense of global interdependence, and universal responsibility”.244 Here the precautionary principle is given the clarity it needs to allow it to be crystallised into customary international law.
While the precautionary principle is commonly recognised as an integral part of international law, its further definition and consideration in the Earth Charter may cement its position. While the Earth Charter is a “soft law” document, due to its innovative design and strong following throughout the world, there is
a strong likelihood that it provides the vehicle required for the implementation of its principles into an “international legally binding instrument on environment and development”.245 This in turn is likely to lead to the full understanding and implementation of the precautionary principle.
The precautionary principle has been plagued by criticism due to its broad wording and the ambiguity of its terms. Some academics are sceptical as to whether a singular precautionary principle even exists or whether it is possible to define it further then the broader maxims of “take care” and “better safe than sorry”. However as previously discussed, even though (in its current form) some wording is open to interpretation, there is a basic premise that stands out. This was clearly outlined in the Rio Declaration and most recently, the Earth Charter. The status of the precautionary principle has also increased as it is increasingly recognised and applied in international law.246 By the continued discussion and refining of the precautionary principle it will soon become a norm of customary international law. Regardless of the arguments over its current status, it can be agreed that support for the precautionary principle continues to gain momentum. Rather than collapsing due to its inadequacies, the principle will be refined and with the help of the Earth Charter and the introduction of these principles into international law the precautionary principle will achieve its goal as a legally enforceable rule for the protection and management of