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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: 154
January 30, 2010

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Reviewing the views

Climate change and precautionary principle

Fayazuddin Ahmad

Climate change is considered as a global risk whose consequences can prove to be catastrophic. The precautionary principle is regarded as a tool against the possible catastrophic impacts of climate change. In the era of globalization where everyone can relate everything to everything else, risks can be characterized by modernization, or else development as their cause and damage as their side effect. Global risks e.g. climate change are not limited to certain time and place.

The development of human society is still based upon the exploitation of earth's natural resources aiming to sustain more sophisticated and comfortable ways of living and even greater numbers of people. In the name of economic and social development humanity is unreasonably using the planets' natural resources without taking into account neither the possible harm that may be caused to nature nor its capacity to replace the exhausted resources for the shake of future generations.

(This figure from the 2001 IPCC Report reveals the impact of socioeconomic development to the environment and human beings and it also introduces adaptation and mitigation as a way through which the negative impacts of climate change can be constrained)

According to the United Nations Framework on Climate Change (1992 article 1 & 2), as climate change is defined “a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods”. The impacts of climate change are not limited to environmental degradation as for example the increase of the earth's temperature due to the production of greenhouse gases that influence the chemical synthesis of the atmosphere, ice melting, sea-level rise, animal extinction, deforestation and other human activities directly related to the exploitation of the natural ecosystem. Climate change can lead to increase of the global percentages of impoverishment. However, during the last years, there has been growing awareness about the possible impacts of climate change in our lives.

(This figure from the 2001 IPCC Report reveals the impact of socioeconomic development to the environment and human beings and it also introduces adaptation and mitigation as a way through which the negative impacts of climate change can be constrained)

While scientists and experts to risk management are trying to analyze the nature and impacts of every risk in relation to what the society perceives as such, politics and international law have provided us with a counterbalance to the negative impacts of climate change: sustainable development. Nevertheless no international treaties, such as the Convention on Biodiversity or the Rio/ Copenhagen Declaration, aiming to encounter certain problems of climate change, can define sustainable development as a direct legal obligation of the states.

When cost-benefit analysis cannot provide us with clear mitigation measures against a threat, the precautionary principle allows us to take action when scientific uncertainty about the implications of a risk exists. In the case of risk assessment the precautionary principle emerges as a counterbalance to the decision-making process that is based on the sound science. The precautionary principle is not a legally binding principle. Yet, its inclusion in numerous Conventions and in the New Delhi Declaration (2002) reveals the trend and universal support for its adoption and implementation and its appreciation as part of customary international law and in particular as one of the principles of the emerging international environmental law.

The precautionary principle does not have a universally accepted definition and its interpretation and implementation is based on the context of the treaty where it can be found. Yet, its interpretation is mainly based on the Rio Declaration (1992:15th principle) where it is stated that “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”. The Convention on Climate Change (1992) and the Preamble of the Convention on Biodiversity can also provide us with the basic elements of the principle.

The Johannesburg Summit reveals the development of the notion of the precautionary principle since 1992 and provides us with the best analytical framework for its interpretation. Based on its definition as the 15th principle of the Rio Declaration, the Plan of Implementation of the World Summit on Sustainable Development (2002) states that as a means of implementation of the treaty the states-members will “improve policy and decision-making at all levels through, inter alia, improved collaboration between natural and social scientists, and between scientists and policy makers, including through urgent actions at all levels to(…)promote and improve science-based decision-making and reaffirm the precautionary approach”. As obvious in the case of chemicals and hazardous waste, the triggering of the precautionary principle can take place when significant adverse effects to human health and the environment that need to be reduced are concerned.

However, it is rather important that in the case of the Johannesburg Summit in both section of means of implementation and section of changing unsustainable patterns of consumption and production, precaution is not replacing the science based-decision making processes but it complements them. The precautionary principle operates as a supplementary process aiming to fill the gap whenever full scientific certainty about the cause and possible impacts of an environmental risk is unavailable and when those impacts cannot be neglected. Additionally, lack of scientific knowledge cannot justify any delay in any action aiming to the protection of the environment from any further damage. In the case though, where scientific uncertainty about the cause and effects of a threat does not exist, then preventative measures take place. The difference between precaution and prevention is that while preventative measures can be both precautionary and non-precautionary, precautionary measures can only be preventative.

In addition, climate change is not an issue whose solution lies only in one state's action. International cooperation is a prerequisite for efficiently addressing climate change. Each state should adopt the most suitable policy for both achieving its own developmental goals and combating climate change. However, for international cooperation to take place, both the developed and the developing countries have to be equally prepared. Yet, at the present time, most of the developing countries do not have the capacity to adapt to climate change even if several developing countries have incorporated the precautionary principle to their domestic legal systems as a legal tool.

Even if the USA and Japan succeeded in the constitution of the term precautionary approach rather than precautionary principle and even if the adoption of the precautionary principle did not include the biodiversity conservation, during the negotiations of the WSSD, the clarification of the scope of the principle in terms of its supplementary role and the clarification of its utility and need in terms of the protection for example of the human health against chemicals and hazardous waste was revealed. The provision for the aid of the developing countries is a rather innovative provision since for the first time the role of the developing countries in sustainable development was recognized and their own needs were taken into account for their adaptation to climate change.

Indeed, the impacts of climate change cannot and shall not be effectively addressed unless a bottom-up approach is adopted, where the people themselves understand, recognize and adapt their every-day lives to the new environmental demands. The precautionary principle is considered as a policy tool. The emerging interaction and cooperation between the scientific, social, and political level of our society is aiming more and more to the adaptation in a more environmental-friendly way of living, where the link between social accountability and participatory democracy in terms of the adoption of the precautionary principle for the protection of the environment in the decision-making process, grows stronger and stronger. Indeed, the answer to climate change does not only lie to the enforcement of the precautionary principle. It also lies to the implementation of the other six principles of international law relating to sustainable development according to the New Delhi Declaration.

The prediction of all the results of a global risk is infeasible and scientific knowledge has proven several times to be inadequate. As a result, international cooperation, through the signature and ratification of international treaties and conventions has lead to the establishment of the precautionary principle. This principle, along with other principles of international law, is now and thereafter used as the means against any possible impact of global risks that can harm severely and/or irreversibly either the environment or humanity itself.


The author is an Advocate and Legal Researcher.



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