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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 17
April 28, 2007

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Transnational Environmental Law
Precaution still pays off

This is the concluding part of a two parts story

Barrister Abu Hena Mostofa Kamal

Generally burden of proof lies with the person who is opposing an act, which means the person who wishes to oppose an act must prove that the alleged activity is causing ecological damage. But the Precautionary doctrine endorsed the view that proponents of a hazardous activity should prove that their activity is not causing undue harm to human health or ecosystems, the burden of proof only lies with the proponents, not with the common people. Requiring the polluter to pay for damage is a way of keeping the burden of proof and responsibility on the shoulders of the polluter. This is why many legal theorists suggests that market incentives like 'assurance bonds' should be taken from entrepreneurs before they commence their business in order to cope with the worst possible consequences of an activity or liability for damages. According to them, this will encourage companies to think about how to prevent future impacts. Such assurance bonds are already used in construction projects in Australia to mitigate future damage. Moreover, in December 2001, the European Commission adopted a proposed directive, which is similar to 'assurance bonds'. This directive requires electronics manufacturers to take financial responsibility for managing their products throughout their lifecycles, including the disposal stage of the products. (EC Dec. 2001).

Precautionary Principle demands some standard of proof but it need not be as high as scientists themselves might desire. A substantial evidence is enough where it is "less than a preponderance, but more than a scintilla”. In the case United Kingdom of Great Britain and Northern Ireland v. Commission of the European Communities (Case E-180/96, 5 May 1998) the European Court of Justice upholds a ban on the export of British beef into EU countries by saying that: "[In view of the seriousness of the risk [of Bovine Spongiform Encephalopathy] and the urgency of the situation, the Commission did not react in a manifestly inappropriate manner by imposing, on a temporary basis and pending the production of more detailed scientific information, a general ban on exports of bovine [products].”

Legal theorists often interpret the Precautionary Principle in two different ways. The strict or restrictive forms of the Precautionary Principle demands inaction when action might pose a threat .It means if action may cause damage, then inaction is more preferable. Literally this interpretation seeks absolute proof of safety before allowing new technologies to be adopted. For example, the World Charter for Nature (1982) states, "where potential adverse effects are not fully understood, the activities should not proceed." But this restrictive Precautionary approach may cause problem where scientific endeavour is involved. For instance: if Mr. Arian under takes a scientific investigation or invents anything which could lead to harm to environment or may cause sufferings to human, then that line of research should be stopped. This approach gives rise to two basic problems:

Firstly, almost all human actions generates a certain amount of risk and it is virtually impossible for us to avoid all kind of trivial or moderate risks involved in any scientific endeavour. Therefore, strict adherence to this approach would prevent virtually all-scientific research.

Secondly, inaction carries its own risks, which may be greater than the risks of action. These arguments are based on narrow assumptions. The precautionary doctrine does not asphyxiate innovative science rather supports science to a great extant. It demands larger analyses than narrowly conceived risk assessments. It requires us to ask the question 'whether a proposed activity is essential?' If the answer is 'yes' then it let us confront another question 'is there any alternative exists to meet the same goal?' This approach does not oppose the idea that people should evaluate a range of alternative options to mitigate ecological damage and promote more robust, diverse and adaptable technologies to reduce the costs of surprises and make best use of innovation.

In contrast, the liberal or active form of the principle promotes the idea that people should choose less perilous alternatives when they are available. In simple words, if damage is likely but not certain, the lack of absolute scientific certainty is no excuse for failing to mitigate the damage. When a potential risk is identified, the appropriate response is to search for less risky alternatives, and use them instead if practical. For example:

(a)The declaration on protection of the North Sea (1990) calls for action to be taken even if there is "no scientific evidence to prove a causal link between emissions [of wastes onto ocean waters] and effects"

(b) The Brent Spar was the massive oil storage facility for Brent Oil field located in the North Sea, where enormous amount of oil were pumped from drilling platforms and stored until it was loaded onto oil tankers. The Brent Spar was installed in 1976 and decommissioned in 1991. In 1995 Oil Company Shell wanted to get rid of the Brent Spar by sinking it in the Atlantic Ocean. The environmental group “Green peace” campaigned against this decision and occupied Brent Spar to prevent implementation of Shell's plan. They argued that Shell's action could cause irreversible damage to marine environment. This incident got huge public exposure. Many people boycotted Shell products and Shell had to lose millions of dollars. The publicity led the oil company to drop its plans. Soon after the Brent Spar incident of June 1995, there was a meeting of the parties to the Oslo and Paris Convention. At the meeting of the OSPAR Commission in June 1995, member states (with the exception of Norway and the United Kingdom) agreed to impose a moratorium on the disposal of decommissioned offshore installations at sea. At that meeting, the parties declared, "the disposal at sea of decommissioned offshore installations cannot be considered to be a sustainable practice which takes into account the precautionary approach".

(c)Newfoundland 'northern cod' stock was regarded as the largest cod stock in the world, which had been exploited by fishers since the 16th century. In the 1960s fishing intensity grew dramatically in this zone .As a result after 1968, fish production severely dropped below and with out evaluating an adequate amount of scientific evidence they held that over fishing is responsible for this. In the late 1970s, using UN Convention on the Law of the Sea, Canada extended its jurisdiction from 12 to 200 nautical miles with the aim to bring much of this stock under its control and imposed a moratorium. This Canadian initiative to set 'deliberately conservative' restrictions on catches with the intention of rebuilding the stock is considered as a good example of liberal precautionary measures.

Many jurist think that 'risk assessment' and 'precaution principle' is the same thing. But in reality, they represent vastly different approaches. Risk assessment tries to determine 'how much harm we will tolerate' and Precaution asks 'how much harm we can avoid'. Precaution doctrine promotes the idea that people should overtly recognize uncertainty because it's beyond their power to know everything. But they must act with foresight and diligence. Some critics further argue that risk assessment makes the precautionary doctrine superfluous. Because risk assessment is based on sound science and is protective by nature. But it is also not true. Though Precaution Principle is based on tentative evidence, it requires 'evaluating a broad range of alternatives' and 'monitoring initiated activities' as stringently as any proposed activity. Therefore the precautionary principle should not be 'pitted as an alternative to risk assessment but will sit above risk assessment.' Furthermore '…..the precautionary principle offers us a chance to move precautionary decisions upstream and establish a precautionary, public interest research agenda. By setting goals for, say, the kind of agriculture we want, we can develop seeds and technologies that are responsive to public need and ecologic principles and are less likely to pose threats. Not only will precaution as an overarching principle help set the research agenda; it will carry over into all aspects of society's interface with technology. From the research agenda and the conceptual phases of a technology through to judicial injunctions and court deference to scientific uncertainty, precaution must imbue our decision-making processes (Carolyn Raffensperger, in her essay 'Precaution: Belief, Regulatory System and Overarching Principle').'

The author is an environmental activist and advocate, Supreme Court, Bangladesh.



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