Precautionary Principle

Precautionary Principle in Environment Law

Martin, in 1997, writes that the “precautionary principle is an age-old concept. Unambiguous reference to precaution as a management guideline is found in the millennial oral tradition of Indigenous People of Eurasia, Africa, the Americas, Oceania, and Australia.”

“The precautionary principle refers to one or other principle of national or international law. Various precautionary principles -said Per Sandin- if I may use the plural, have been included in several international legal documents.1 Secondly, the phrase ‘the precautionary principle’ is used more broadly, referring to some principle that can be applied by decision-makers and policy-makers in general.”

And he adds: “One common claim in the secondary literature is that the precautionary principle first emerged in West German environmental law in the 1970s, under the name of Vorsorgeprinzip (…). It has been claimed that the “precautionary concept found its way into international law and policy as a result of German proposals made to the International North Sea Ministerial Conferences”.

D. Anton, J. Kohout and N. Pain, in “Nationalizing Environmental Protection in Australia: The International Dimensions”, wrote:

“The term “precautionary principle” has appeared with an increasing frequency in the academic literature and official documents of international environmental law. It denotes a general notion that it is desirable to prevent pollution and that States should act with care in making decisions that could adversely impact the environment.

Beyond this general notion, the precautionary principle holds that “substances or activities that may be harmful to the environment should be regulated even if conclusive scientific evidence of their harmfulness is not as yet available.” The legal ramifications of the principle involve shifting the burden of proof, from those supporting environmental regulation to those engaged in the activity being opposed, to establish that such activities would not adversely affect the environment.

The precautionary principle arises in the context of international environmental agreements because these agreements ordinarily respond to scientific evidence of an environmental problem. Unfortunately, scientific evidence is rarely, if ever, absolute. This places nation-states in a dilemma. On one hand, negotiators need sufficient and accurate data to understand complex environmental problems and to formulate effective solutions. On the other hand, if negotiators wait until perfect scientific evidence is available, the problem may have worsened or become irreversible.[83] The precautionary principle compels States to act in the face of scientific uncertainty to safeguard the environment.

The precautionary principle has potential for application in domestic law. It clearly demands a measure of care and foresight that require the integration of environmental concern into every aspect of governance. Before undertaking any decision that may be harmful to the environment, governmental authority must pause and consider the consequences. To ensure a fully informed decision, the principle necessitates coordination among all levels of government. It is readily apparent that this principle of international environmental law favors a centralized authority and a federal EPA is the most appropriate mechanism to ensure the precautionary approach to environmental regulation is carried out.”

A universal formulation of precautionary duties is in the Principle 15 of the 1992 Rio Declaration on Environment and Development:

“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.”

A related document may be more specific:

“States, in accordance with the provisions of the United Nations Convention on the Law of the Sea on protection and preservation of the marine environment, commit themselves, in accordance with their policies, priorities and resources, to prevent, reduce and control degradation of the marine environment so as to maintain and improve its life-support and productive capacities. To this end, it is necessary to:

(a) Apply preventive, precautionary and anticipatory approaches so as to avoid degradation of the marine environment, as well as to reduce the risk of long-term or irreversible adverse effects upon it.” [Agenda 21, Chapter 17, 17.22, in Report of the United Nations Conference on Environment and Development, Rio De Janeiro, June 3-14, 1992, U.N. Doc. A/CONF. 151/26 (Vol. II)].

In the 1994 Preagreement on the Application of Sanitary and Phytosanitary Measures:

“In cases where relevant scientific evidence is insufficient, a Member may provisionally
adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organizations as well as from sanitary or phytosanitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of
time.”

In the Cartagena Biosafety Protocol, which deals with living modified organisms:

“Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent of the potential adverse effects of a living modified organism on the conservation and sustainable use of biological diversity in the Party of import, taking also into account human risks to human health, shall not prevent that Party from taking a decision, as appropriate, with regard to the import of that living modified organism intended [for direct use as food or feed, or for processing] in order to avoid or minimize such potential
adverse effects.”

The report of the Eleventh Meeting of the Standing Committee on Tuna and Billfish [May 28-
June 6, 1998, Honolulu, in Appendix 1 (Record of Discussion of the Workshop on Precautionary
Limit Reference Points) at 67] explains the “precautionary approach” in the context of the 1995 Straddling and Migratory Stocks Agreement, as follows:

The precautionary approach, in summary, embodies six main elements:

caution (to be applied widely, to protect resources and preserve the environment); more caution required when uncertainty; absence of adequate information no reason for failing to take measures;
information and analysis (obtain and share best available information; need to deal with risk and uncertainty);
reference points (use of limit and target reference points for conservation and management objectives respectively; develop plans as LRPs [limit reference points] are approached or TRPs [target reference points] exceeded);
non-target species, associated or dependent species and their environment (assess impacts of fishing; ensure conservation of species and protection of habitat);
new or exploratory fisheries (early adoption of cautious measures or PRPs, remaining in effect until fishery impacts assessed; gradual development;
set provisional reference points); and
natural phenomena (adopt conservation and management measures to ensure fishing does not exacerbate the situation).

The 1990 British White Paper entitled “This Common Inheritance: Britain’s Environmental Strategy” offered a guide, in this area, to all British governmental activities:

“We must analyze the possible benefits and costs both of action and of inaction. Where there are significant risks of damage to the environment, the Government will be prepared to take precautionary action to limit the use of potentially dangerous pollutants, even where scientific knowledge is not conclusive, if the balance of the likely costs and benefits justifies it. This precautionary principle applies particularly where there are good grounds for judging either that action taken promptly at comparatively low cost may avoid more costly damage later, or that irreversible effects may follow if action is delayed.”

Precautionary Principle and the Treaties of the European Union

Description of Precautionary Principle provided by the European Union Commission: The concept of the precautionary principle was first set out in a Commission communication adopted in February 2000 on recourse to the precautionary principle, in which it defined this concept and envisaged how it would be applied. This text complements the White Paper on Food Safety (January 2000) and the agreement concluded in February 2000 in Montreal on theCartagena Protocol on Biosafety. In this document, the Commission sets out the specific cases where this principle is applicable:

• where the scientific data are insufficient, inconclusive or uncertain;

• where a preliminary scientific evaluation shows that potentially dangerous effects for the environment and human, animal or plant health can reasonably be feared.

In both cases, the risks are incompatible with the high level of protection sought by the European Union. The Communication also sets out the three rules which need to be followed for the precautionary principle to be observed:

• a complete scientific evaluation carried out by an independent authority in order to determine the degree of scientific uncertainty;

• an assessment of the potential risks and the consequences of inaction;

• the participation, under conditions of maximum transparency, of all the interested parties in the study of possible measures.

The Commission would also like to point out that the measures resulting from recourse to the precautionary principle may take the form of a decision to act or not to act, depending on the level of risk considered “acceptable”. The Union had applied this precautionary principle in the area of genetically modified organisms (GMOs), for instance, with the adoption of a moratorium on their commercialisation between 1999 and 2004.

Precautionary Principle

Embracing mainstream international law, this section on precautionary principle explores the context, history and effect of the area of the law covered here.

Precautionary Principle and the Treaties of the European Union

• where the scientific data are insufficient, inconclusive or uncertain;

• where a preliminary scientific evaluation shows that potentially dangerous effects for the environment and human, animal or plant health can reasonably be feared.

• a complete scientific evaluation carried out by an independent authority in order to determine the degree of scientific uncertainty;

• an assessment of the potential risks and the consequences of inaction;

• the participation, under conditions of maximum transparency, of all the interested parties in the study of possible measures.

Resources

Barret, K., Abergel, E. (2000) Breeding familiarity: Environmental risk assessment for
genetically engineered crops in Canada, Science and Public Policy. 27: 2-12
CBD (2000) The Cartagena Protocol. Http://www.biodiv.org/doc/legal/cartagena-protocol-en-pdf
(accessed January 2006)
Cranor, C. (2003) How should society approach the real and potential risks posed by new
technologies?, Plant Physiology, 133: 3-9
Dovers, S.R., Norton, T.W. and Handmer, J.W. (1996) Uncertainty, ecology, sustainability and
policy. Biodiv. Conserv. 5; 1143-1167
Bodansky, Daniel (1994). The Precautionary Principle in US Environmental
Law. Interpreting the Precautionary Principle, eds.
Tim O’Riordan & James Cameron. London: Cameron May, 203–228.
Boehmer-Christiansen, Sonja (1994). The Precautionary Principle in Germany – Enabling Government. Interpreting the Precautionary Principle, eds. Tim O’Riordan & James Cameron. London: Cameron May, 31–60.
Cameron, James & Abouchar, Juli (1996). The Status of the Precautionary Principle in International Law. The Precautionary Principle and International Law: The Challenge of Implementation, eds. David Freestone & Ellen Hey. International Environmental
Law and Policy Series, 31. The Hague: Kluwer Law International, 29–52.
Cameron, James & Wade-Gery, Will (1995). Addressing Uncertainty: Law, policy and the development of the precautionary principle.
Environmental Policy in Search of New Instruments, ed. Bruno Dente. Dordrecht: Kluwer Academic, 95–142.
Carnap, Rudolf (1951). Logical Foundations of Probability. London: Routledge and Kegan Paul.
Dommen, Edward (1993). Introduction. Fair Principles for Sustainable Development: Essays on Environmental Policy and DevelopingCountries, ed. Edward Dommen. Aldershot: Edward Elgar

Ducrotoy, J. P., Elliott, M. (1997) Interrelations between science and policy-making: The north
Sea example. Marine Pollution Bulletin, 34: 686-701
EU (Commission of the European Communities) (2000) Communication on the Precautionary
Principle, https://europa.eu.int (accessed January 2006)
FAO: Food and Agricultural Organization/ World health organisation (1996) Biotechnology and
Food Safety, (Rome: FAO).
FAO: Food and Agricultural Organisation/ World health organisation (2000) Application of
substantial equivalence data collection and analysis. (Rome: FAO).
Foster, K. R., Vecchia, P., Repacholi, M. H. (2000) Science and the Precautionary Principle,
Science, 288: 979-981
Freestone, D. and Hey, E. (1996) Origins and development of the Precautionary Principle, in
Freestone, D. and E. Hey (ed.), The Precautionary Principle and international law.
Kluwer Law International, Netherlands, p. 3-15
Freestone, David & Hey Ellen (1996). Origins and Development of the
Precautionary Principle. The Precautionary Principle and International
Law: The Challenge of Implementation, eds. David Freestone
& Ellen Hey. International Environmental Law and Policy
Series, vol. 31. The Hague: Kluwer Law International, 3−15.
Graham, John D. (1999). Endocrine Disruptors and ‘the’ Precautionary
Principle. https://www.phpab.org/Editorials/ EndocrineGraham.htm
(accessed May 28, 2002).
Graham, John D. (2000). Perspectives on the Precautionary Principle.
Human and Ecological Risk Assessment, 6(3), 383–385.
Guendling, John E. (1974). Modal Verbs and the Grading of Obligations.
Modern Schoolman, 51, 117–138.
Haag, Daniel & Kaupenjohann, Martin (2001). Parameters, prediction,
post-normal science and the precautionary principle—a roadmap for modelling for decision-making. Ecological Modelling 144, 45–60.
Gasson, M. and Burke, D. (2001) Scientific perspectives on regulating the safety of genetically
modified foods, Nature Reviews 2: 217-222
Haslberger, A. G. (2003) Codex guidelines for GM foods include the analysis of unintended
effects, Nature Biotechnology, 21: 739-741
Helmuth, L. (2000) Both sides claim victory in trade pact, Science, 287: 782-783
Haigh, Nigel (1994). The Introduction of the Precautionary Principle
into the UK. Interpreting the Precautionary Principle, eds. Tim O’Riordan & James Cameron. London: Cameron May, 229–251.
Haller, Stephen (2000). A Prudential Argument for Precaution under Uncertainty and High Risk. Ethics and the Environment, 5(2), 175–189.
Harremo¨es, Paul et al. eds. (2002). The precautionary principle in
the 20th Century: Late Lessons from Early Warnings. London:
Earthscan.
Kaiser, Matthias (1997). The Precautionary Principle and Its Implications
for Science. Foundations of Science, 2, 201–205.
L¨ofstedt, Ragnar E.; Fischhoff, Baruch & Fischhoff, Ilya R. (2002).
Precautionary Principles: General Definitions and Specific Applications
to Genetically Modified Organisms. Journal of Policy
Analysis and Management, 21, No. 3, 381–407
Kitano, H. (2002) Systems biology: a brief overview, Science, 295: 12-15
Kriebel, D., et al. (2001) The Precautionary Principle in environmental science, Environmental
Health Perspectives, 109: 871-876
Levidow, L. (2003) Precautionary risk assessment of Bt maize: What uncertainties?, Journal of
Invertebrate Pathology, 83:113-117
Marchant, Gary E. (2001). The precautionary principle: an ‘unprincipled’ approach to biotechnology regulation. Journal of Risk Research, 4(2), 143–157.
Martin, Philippe H. (1997). If You Don’t Know How to Fix It, Please Stop Breaking It. Foundations of Science, 2, 263−292.
Morris, Julian, ed. (2000). Rethinking Risk and the Precautionary Principle. London: Butterworth-Heinemann.
Myers, Norman (1993). Biodiversity and the Precautionary Principle. Ambio, 22, No. 2–3, 74–79.
Raffensperger, Carolyn & Tickner, Joel, eds. (1999). Protecting Public Health and the Environment: Implementing the Precautionary Principle. Washington, D.C.: Island Press.
Sandin, Per (2002). Review of Morris (2000). Risk Management: An International Journal, 4(3), 75–76.
Tickner, Joel (2000). Precaution in Practice: A Framework for Implementing the Precautionary Principle. Unpublished dissertation, University of Massachusetts, Lowell.
Morris, J. (ed.) (2000) Rethinking risk and the Precautionary Principle (Oxford: ButterworthHeinemann).
Myhr, A.I. and Traavik, T. (1999) The precautionary principle applied to deliberate release of
genetically modified organisms (GMOs), Microbial Ecololgy in Health and Disease, 11:
65-74
Myhr, A.I. and Traavik, T. (2002) The Precautionary Principle: Scientific uncertainty and omitted
research in the context of GMO use and release, Journal of Agricultural and
Environmental Ethics, 15: 73-86
Myhr, A.I and Traavik, T (2003) Genetically modified crops: Precautionary science and conflicts
of interests, Journal of Agricultural and Environmental Ethics, 16: 227-247
OECD (Organisation for Economic Co-operation and Development) (1993a) Field releases of
transgenic plants 1986-1992: An analysis. (OECD, Paris)
OECD (Organisation for Economic Co-operation and Development) (1993b) Safety evaluation of
foods produced by modern biotechnology: Concepts and principles (OECD: Paris).
Raffensperger, C., Tickner, J. (ed.) (1999) Protecting public health and the environment:
Implementing the Precautionary Principle. Island Press, Washington DC
The Expert Panel of the Royal Society of Canada (2001) Elements of precaution,
Recommendations for the regulation of food biotechnology in Canada. www.rsc.ca
UNESCO COMEST (2005) Report of the Expert Group on the Precautionary Principle of the
World Commission on the Ethics of Scientific Knowledge And Technology (COMEST),
Paris: UNESCO COMEST
Wynne, B. (1992) Uncertainty and environmental learning: reconciving science and policy in the
preventive paradigm, Global Environmental Change, 2:111-127

Hierarchical Display of Precautionary principle

Production, Technology And Research > Research and intellectual property > Research > Research method
Environment > Environmental policy > Environmental protection
Social Questions > Health > Health policy > Organisation of health care > Public health > Health legislation
Environment > Environmental policy > Environmental policy > Environmental risk prevention

Precautionary principle

Concept of Precautionary principle

See the dictionary definition of Precautionary principle.

Characteristics of Precautionary principle

[rtbs name=”xxx-xxx”]

Resources

Translation of Precautionary principle

Thesaurus of Precautionary principle

Production, Technology And Research > Research and intellectual property > Research > Research method > Precautionary principle
Environment > Environmental policy > Environmental protection > Precautionary principle
Social Questions > Health > Health policy > Organisation of health care > Public health > Health legislation > Precautionary principle
Environment > Environmental policy > Environmental policy > Environmental risk prevention > Precautionary principle

Precautionary Principle

Precautionary Principle

Precautionary Principle in Environment Law

Precautionary Principle and the Treaties of the European Union

Precautionary Principle

Precautionary Principle and the Treaties of the European Union

Resources

See Also

Popular Treaties Topics

Further Reading

Hierarchical Display of Precautionary principle

Precautionary principle

Concept of Precautionary principle

Characteristics of Precautionary principle

Resources

Translation of Precautionary principle

Thesaurus of Precautionary principle

See also

Comments

Leave a Reply Cancel reply