Shreyashi Tiwari, a final year student often spotted around the campus with a skateboard, oscillates between playing great tunes on her guitar and writing amazing blog posts, much like this one.

While the concepts of transboundary harm and sustainable development has been a part of international as well as national law regimes for almost a century now (1930s), the concept of precautionary principle is comparatively new as it found its voice in formal legal terms in the treaties entered into by the countries around  as late as the 1980s. It was neither always possible to know what environmental consequences may, at some future unknown date, flow from particular uses of environment and its resources, or from particular industrial, or agricultural processes being undertaken nor the ways in which these consequences would materialise. Though more than one interpretation exists, the most accepted definition of the term ‘precautionary principle’ has been provided under the Principle 15 of Rio Declaration which reads : “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.[1]’ Hence, precautionary principle falls within the ambit of one of the preventive measures that must be undertaken to tone down the damages and harm to the environment by the human actions in the background of conflict between development and environment protection whenever a conflict or a dispute arises with respect to the same. The origin of Precautionary Principle can be traced to the national regimes countries, the most evident amongst which is that of Germany dating back to the 1970s.[2] This idea had its origin in Brandt era of mid-1970s under the concept of Vorsorge prinzep, also referred to as the ‘Foresight Principle.’ The ‘foresight principle’ essentially talks about a risk prevention approach which involves the concept of good environment management through protective measures against specific environmental hazards in order to avoid or reduce environmental risks.[3]

Standing In International Law Regime

The Precautionary Principle is essentially rooted in traditional environmental agreements which call upon parties and the institutions which are created thereunder to act and to adopt decisions which are based on ‘scientific findings’ or methods[4] or ‘in the light of knowledge available at the time.[5] Established by the United Nations Convention on Environment and Development (UNCED) held in Rio De Janeiro in 1992 , signifies the approach with which the precautionary principle was to be introduced:-

In order to protect the environment, the precautionary approach all be widely applied by the 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 damage[6]

Thus, existence of a situation of uncertainty, in the face of a threat such that the said threat can cause grave harm, leads to the application of the principle of precaution.[7] In the 2001 MOX Case, it was said that in the absence of evidence showing a real risk of harm, precaution could not warrant a restraint of rights of U.K. to operate the plant, wherein the Court did not suspend the functioning of the plant.[8] Other international Courts have agreed with the custom wherein the party alleging a risk of serious environmental harm to adduce enough evidence to establish at least a prima facie case.[9]

Over the period of time, the precautionary principle has acquired the stature of customary international law[10] which has made it a binding principle or obligation under the international regime. Moreover, where there is threat of significant loss or reduction of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures in order to avoid or minimise such a threat.[11] Thus, internationally, this principle has been accepted over a wide range of conventions and through a wide range of cases.  All of these International Conventions and Agreements lay down the basic approach on which the precautionary principle functions which is: ‘action must be undertaken wherever there is an evidence to suggest that environmental damage is occurring, consequently, the activities must be allowed in case there exists no such scientific evidence to substantiate the claim.’

Apart from the Rio Declaration, the notable conventions that express the above mentioned principle includes the following:-

  • Article 3(3) 1992 Framework Convention on Climate Change
    The Parties should take precautionary measures to anticipate, prevent or minimise the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures

  • Preamble, 1992 Convention on Biological Diversity
    “….where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used for postponing measures to avoid or minimise such a threat
  • Article 11, 2000 Cartagena Protocol on Biosafety

Lack of scientific uncertainty 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 the risks to human health, shall not prevent the 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 minimise such potential adverse effects. If we scrutinise the various tabulated and accepted versions of the Precautionary Principle, we realise there exists a slight deviation when it comes to the exact definition of the term precautionary principle in each of these and all the other conventions which creates a problem when it comes to the accurate interpretation of the terminology.
However, the most important Convention which regulates this principle and is the most accepted is the Principle 15, Rio Conference as follows:-
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.


Problems in Practical Application of the Precautionary Principle

Similar to all the other existing environmental principles, the rightful implementation of the the Precautionary Approach is also afflicted with a range of similar issues. The first issue which acts as an impediment in the implementation of this principle is there are two different versions of the principle when closely analysed i.e.., ‘weak’ and ‘strong’. When it comes to the weak form, the difference between the two being that while the former advocates taking of precaution in a manner which is modified by balancing the costs and benefits of taking such an action (present United Kingdom and European Community’s stand). The shortcoming with this approach lies in the difficulties and hindrances in assessing the costs and benefits of uncertain risks that may need to be extrapolated over a long period of time. Whereas the strong approach of the principle provides for prohibiting any such action which results in  significant or irreversible environmental harm, regardless of the cost doing so.[12] The point of criticism of this principle is that no matter the scientific research undertaken there will/ does not be a zero-risk activity. Thus, analysis on the basis of strong version could lead to prohibition on beneficial activities simply on the basis that the understanding of the risks were certain. This is in direct conflict with development of progressive technologies. The flip side of a strong interpretation assumes that that there is no cost in doing nothing; in some circumstances, it is argued, not doing something may actually be harmful than doing it. The second issue with the application of precautionary approach is its acute reliance on ‘scientific soundness’ of the evidence when assessing the impact of the risks undertaken.[13] This provides a certain prejudiced favour to science over other forms of knowledge or constructions of belief, and therefore a certain rationality and unresponsiveness shifts in the public opinion. The case in point being the Pfizer case[14] where though the wider scientific process was considered essential, yet it also provided that the approach where assessing risks and then agreeing responses to such risks (legally or politically) are completely separate. Thus, the matter being it is almost impossible to restrict advisory process to technical issues or that subjective values of scientists are irrelevant to decision-making.[15]  The third issue remains with the fact that the Precautionary Principle’s implementation does not exactly determine what kinds standards to be used. For example, the precautionary principle in the EC Treaty has failed to resolve the tension between environmental quality standards and process controls. Moreover, with the help of this provision, Germany (a member of EC) used precaution as it implied the use of best pollution abatement techniques ie., process controls. The fourth and the final issue with this principle is that it does not fit easily into the institutional and administrative framework.[16] . Instead of being seen as a policy, it is considered rather a response toto the public mistrust of ‘scientific objectivity’ and a recognition that there will be circumstances under which there will be a policy gap between that which a decision maker ‘knows’ about a risk (or can be told by science) and that with which the public are concerned.

Precautionary principle or rather the precautionary approach  is a practical tool of environment management that is interpreted and applied differently depending upon the context. The context hugely matters in this regard because depending upon whether the principle is being used as a ‘sword’ that is, to challenge a decision in relation to which the risks are alleged to be too great- or a ‘shield’ that is to protect a decision that attached too much weight to residual risks. Hence, the principle of precautionary approach though might be have different versions according to the various regimes it is followed in, yet two constant dynamics of the principle remains: a) existence of scientific basis to prove a claim and b) existence of potential harm or risk that will lead to environmental degradation.

 

[1]  WSSD Plan of Implementation, paras 22 and 103

[2] K. von Moltke, ‘The Vorsorgeprinzip in West German Environmental Policy’, in Twelfth Report (Royal Commission on Environmental Pollution, UK, HMSO, Cm 310, 1988), 57

[3] Boehmer- Christiansen (1994) ‘The Precautionary Principle in Germany: ‘enabling government’ in  T.O’Riordan and J. cameron (eds) Interpreting the Precautionary Principle, London: Earthscan

[4] 1946 International Whaling Convention Article V(2); 1972 Antarctic Seals Convention, Annex, para. 7(b);  1972 World Heritage Convention, Preamble; 1972 London Convention, Article XV(2); 1979 Bonn Convention, Article III(2) and XI(3)

[5] 1960 Radio Convention, Article 3(1)

[6] David Freestone, ‘The Road from Rio: International Law after the Earth Summit’, Journal of Environmental Law, Vol 6, 1994, p 193, at pp 210-215

[7]  IUCN Council, Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural Resource Management (2007).

[8] Kwiatkowska, B., 2003. The Ireland v United Kingdom (Mox Plant) Case: Applying the Doctrine of Treaty Parallelism. The International Journal of Marine and Coastal Law18(1), pp.1-58.

[9] Pfizaer Animal Health  v Council of the EU, II ECR (2002) 3305, paras 136-48, 164-73.; EC Measures concerning Meat and Meat Products WT/DS26/AB/R (1998) paras 97-109

[10]  Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, advisory opinion of February 2011

[11] Preamble, 1992 Convention on Biological Diversity

[12] C. Sunstein (2005) Laws of Fear: Beyond the Precautionary Principle, Cambridge: Cambridge University Press.

[13] Sustainable Development  Strategy of the Department for Environment, Food and Rural Affairs (DEFRA) (2002) Foundations of our Future

[14]  Cases T-13/99 Pfizer and T-70/99 Alpharma

[15] S. Jasanoff (1990) The Fifth Branch: Science Advisers as Policymakers, Cambridge Mass: Harvard University Press, p.231

[16]  Bell, Stuart; McGillivray Donald (2008) “Environmental Law, Oxford University Press, Edn. VII, Page No. 71

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