Transnational Environmental Law
The precautionary principle: Evolution of the old paradigm
Barrister Abu Hena Mostofa Kamal
In recent years, a theory called the 'Precautionary Principle' aimed to guide human activities for the prevention of environmental hazards surfaced in the arena of transnational environmental law. The essence of the precautionary principle is: “If you have a reasonable doubt that something terrible might be going to happen to the environment, you have an obligation to prevent it even in the presence of deficient scientific evidence. It means the state has an obligation to avoid environmental damage by vigilant forward planning and blocking the flow of potentially harmful activities.” It should be noted that the precautionary principle was originally designed to prevent environmental hazard but it is now widely used where there exists imminent threat of harm to human, animal or plant health.
The contemporary precautionary principle was originated in German domestic law in the 1970s and 1980s and it is fast gaining ascendancy in Transnational Environmental Law since then. It was subsequently incorporated into a number of regional environmental agreements in Europe. Over the past two decades, it has been incorporated into approximately twenty international environmental treaties and agreements. It has been cited in more than sixty decisions of the European Union courts. Furthermore, Article 174 of the Treaty of European Community, added in 1993, makes the precautionary principle one of the guiding principles of EU environmental law. The principle though still evolving has gradually been assimilated into various transnational laws.
The 'precautionary principle' in some international treaties and agreements
Montreal Protocol on Substances that Deplete the Ozone Layer, 1987: 'Parties to this protocol... determined to protect the ozone layer by taking precautionary measures to control equitably total global emissions of substances that deplete it...'
Third North Sea Conference, 1990: 'The participants... will continue to apply the precautionary principle, that is to take action to avoid potentially damaging impacts of substances that are persistent, toxic, and liable to bioaccumulate even where there is no scientific evidence to prove a causal link between emissions and effects.'
Transboundary Watercourse Convention 1992: 'Action to avoid the potential transboundary impact of the release of hazardous substances shall not be postponed on the ground that scientific research has not fully proved a causal link between those substances, on the one hand ,and the potential transboundary impact , on the other hand.'
The Rio Declaration on Environment and Development, 1992: '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.'
Framework Convention on Climate Change, 1992: '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, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost.'
Treaty on European Union (Maastricht Treaty), 1992: 'Community policy on the environment... shall be based on the precautionary principle and on the principles that preventive actions should be taken, that the environmental damage should as a priority be rectified at source and that the polluter should pay.'
Cartagena Protocol on Biosafety, 2000: 'In accordance with the precautionary approach the objective of this Protocol is to contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health, and specifically focusing on transboundary movements.'
Stockholm Convention on Persistent Organic Pollutants (POPs) 2001: Precaution, including transparency and public participation, is operationalised throughout the treaty, with explicit references in the preamble, objective, provisions for adding POPs and determination of best available technologies. The objective states: 'Mindful of the Precautionary Approach as set forth in Principle 15 of the Rio Declaration on Environment and Development, the objective of this Convention is to protect human health and the environment from persistent organic pollutants.'
The precautionary principle is not really a new concept. According to the legal historians this concept was first evolved in Germany in the 1930s .In Germany this concept is called 'vorsorgeprinzip', which means “foresight principle” or 'precaution principle'. Apart from this, the concept of precautionary principle can find a source far back in legal history in 1854. In 1854, Central London faced worse kind of cholera out break. John Snow, a London physician, investigated the outbreak and on 7 September 1854, he recommended the removal of the 'Broad Street' water pump on the grounds that there was 'no... Cholera... except amongst persons, who were in the habit of drinking the water of the (Broad Street) water pump'. The Public authorities removed the pump handle the next day to prevent further infection from that contaminated water source. Dr. Snow tried to establish a chain of causation between the polluted water and cholera by producing epidemiological maps of disease and its possible causes. But his evidence was not regarded as 'proved beyond reasonable doubt'. “The story of John Snow and cholera” is regarded as a classic case of precautionary principle .Because it contains several of the key elements of precautionary principle i.e. scientific uncertainty, ignorance and policymaking (D. Gee, Financial Times (London), U.S. ed. 2, 16 December 1999, p. 14).
The modern precautionary principle is based on the common-sense notion that 'it is better to be safe than sorry' or 'prevention is better than cure' in regulating health and environmental risks under conditions of inherent uncertainty. In essence the Precautionary Principle means where an activity threatens wildlife, the environment, or human health, protective measures should be taken even in the absence of full scientific certainty. The precautionary principle has three core elements: (1) the threat of harm, (2) uncertainty, and (3) precautionary action. Therefore, the precautionary principle should be invoked when:
There is good reason to believe that detrimental effects may occur to human or to the environment;
The finest obtainable scientific advice cannot assess the risk adequately. This requirement does not exclude the needs for some scientific basis for predicting the possibility of harmful effects of an act.
Where acting promptly will diminish potential damage in the presence of 'reasonable grounds for concern'.
We should keep it in mind that there is no universally accepted definition of the precautionary principle. Therefore considerable debate always exists as to what the precautionary principle means, and how it can be implemented. However, in law, the precautionary principle has been defined as “where there is uncertainty as to the existence or extent of risks to human health, the institutions may take precautionary measures without having to wait until the reality and seriousness of those risks become fully apparent (Artegodan GmbH v. Commission, Case T-74/00, 2002 E.C.R. II-4945).”
Another standard legal definition can be found in Rio Declaration which states “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 certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation (principle 15, Rio Declaration-1992)”. This definition explicitly shifts the emphasis to the protection of the ecosystem in any circumstances where there would appear to be a clash between environmental protection and scientific uncertainty.
Furthermore, the Wingspread group provides more acceptable definition of this principle in 1998.The Wingspread group (an international group of scientists, government officials, lawyers, and environmental activists) defines the precautionary principle as “When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically. In this context the proponent of an activity, rather than the public, should bear the burden of proof. The process of applying the precautionary principle must be open, informed and democratic and must include potentially affected parties. It must also involve an examination of the full range of alternatives, including no action (Wingspread Statement on the Precautionary Principle, January 1998)."
According to Peter Montague, this definition of precautionary principle has four parts:
1. People have an obligation to take anticipatory action to prevent harm.
2. The burden of proof of harmlessness of a new technology, process, action, or chemical lies with the proponents, not with the general public.
3. Before using a new technology, process, or chemical, or starting a new activity, people have an obligation to examine 'a full range of alternatives' including the alternative of doing nothing.
4. Decisions applying the precautionary principle must be "open, informed, and democratic" and "must include affected parties."
Moreover, it is mentioned in Commission of the European Communities Report (Communication from the Commission on the Precautionary Principle/ Brussels, 02.02.2000 com (2000) 1), “Where action is deemed necessary, measures based on the precautionary principle should be, inter alia: 1. proportional to the chosen level of protection, 2. non-discriminatory in their application, 3. consistent with similar measures already taken, 4. based on an examination of the potential benefits and costs of action or lack of action (including, where appropriate and feasible, an economic cost/benefit analysis), 5. subject to review, in the light of new scientific data, and 6. capable of assigning responsibility for producing the scientific evidence necessary for a more comprehensive risk assessment.”
We should bear in mind that in order to achieve sustainable ecological development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation and 'lack of scientific certainty' should not be used as a ground for postponing measures to prevent ecological degradation (Bergen Ministerial Declaration on Sustainable Development in EC Region 1990 ,para 7 ,IPE (I/B/16-05-90)).
The author is an environmental activist and advocate Supreme Court, Bangladesh.