Sandeep Menon Nandakumar ((BA LLB (Hons), NUALS, LLM (Cusat), LLM (Exeter, UK), Lecturer, School of Legal Studies, CUSAT)).
The precautionary principle is that principle which necessitates early measures to be taken so as to avoid environmental harm and health hazards even if the future is risk not so established scientifically. This principle can be found mentioned in environmental concepts as well as in the context of human rights, as for example, the United Nations Global Compact which lays down the principles (voluntary codes) that has to be followed by the business enterprises also stress the need for precautionary principle in their activities so as to prevent environmental damage and human right abuses. The need for a precautionary approach is mentioned in the Rio Declaration which states 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 ((Principle 15 of the Rio Declaration on Environment and Development, 1992)).” Moreover the principle is also seen in Chapter 17 of Agenda 21 which states that ‘a precautionary and anticipatory rather than a reactive approach is necessary to prevent the degradation of the marine environment ((Alexander Gillespie, ‘The Precautionary Principle in the Twenty-First Century: A Case Study of Noise Pollution in the Ocean’ (2007) 22 Int’l J. Marine & Coastal L. 61, 67)). This principle is often found relevant in the context of the protection of the ozone layer, climate change, protection of environment, the nuclear power risk and protection of marine and fisheries ((Marko Ahteensuu, ‘Defending The Precautionary Principle Against Three Criticisms’ (2007) 11(61/56) 4 TRAMES 366–381, 367)). The precautionary principle is different from prevention because in prevention the risks are known and there will be a decision to reduce the risk ((Elizabeth Fisher, ‘Is the Precautionary Principle Justiciable?’ (2001) 13 (3) J Environmental Law 315, 318)).
Precautionary Principle in International Environmental Law – An Overview
The precautionary principle can be traced back to the Vorsorgeprinzip adopted in the German environmental policy in response to the threats posed to forests by acid rain ((Mike Feintuck, ‘Precautionary Maybe, but What’s the Principle? The Precautionary Principle, the Regulation of Risk and the Public Domain’’ (2005) 32 J.L. & Soc’y 371)). The essence of the precautionary principle is absence of scientific certainty of threats should not be used as a reason for not preventing harm ((Elizabeth Fisher, ‘Is the Precautionary Principle Justiciable?’ (2001) 13 (3) J Environmental Law 315, 316)). But at the same time has to be some scientific basis for predicting harmful effects and it is pertinent to note the observation made in Pfizer Case that a preventive measure cannot be based on a purely hypothetical approach which has not been verified scientifically. The benefit of doubt is given to the environment which signifies that appropriate action has to be taken even if uncertainty exists as to the evidence of serious harm ((Birnie, P., Boyle, A. and Redgwell, C. International Law and The Environment (3rd ed Oxford, OUP 2009) 157)). As regards the burden of proof, it rests on the person who alleges a risk of serious environmental harm which is clear from the cases of the MOX Plant case ((The case was regarding the disposal of low-level nuclear waste into the Irish Sea)), Pulp Mills Case and Land Reclamation and Southern Bluefin Tuna case ((In this case it was expressly argued by Australia and New Zealand that the judgment of the Tribunal should require all of the Parties to ‘act consistently with the precautionary principle’ in fishing)). On the other hand it has also been argued by some that the precautionary principle shifts the burden of proof as the precautionary principle vests the burden of proof on the potential polluter to show that what they propose will not cause damage and not on the environmentalists to show damage after the concerned action ((Marko Ahteensuu, ‘Defending The Precautionary Principle Against Three Criticisms’ (2007) 11(61/56) 4 TRAMES 366–381, 375)). At the same time there are also instances where it should be shown that no harm will be caused to the environment as for example the ban on industrial waste dumping at sea. As regards the burden of proof, it has been expressly stated in Conservation Council of South Australia v. Tuna Boat Owners Association (No.2) which was concerning licensing tuna farmsthat the person who challenges the development should show that existence of a serious and irreversible damage if the development occurs. But at the same time on appeal the court also accepted the fact that the burden may be placed on the applicant to prove that the development was ecologically sustainable.
It is stated that the legal status of the precautionary principle has been found to be uncertain in international law in the Beef Hormones case (1998) but at the same time there was an implied reference to precautionary approach in the Southern Bluefin (Provisional Measures) Cases (1999) where the Tribunal relied on scientific uncertainty regarding the conservation of tuna stocks to grant provisional measures as the reference to scientific uncertainty impliedly refers to precautionary principle as detailed under the principle 15 of Rio Declaration ((Birnie, P., Boyle, A. and Redgwell, C. International Law and The Environment (3rd ed Oxford, OUP 2009) 160)).
Precautionary principle and Trade Law
The use of the precautionary principle may lead to restrictions on trade. The rules of international trade law suggests that there cannot be any quantitative restrictions on imports (Article 28 of the EC Treaty, Article XI of GATT, 1994) and that the imported products should not be given less favourable treatment than similar domestic products in the domestic market [Article III:4] ((The exceptions to the said principle include measures necessary for the protection of human, animal or plant life))at present, article 174(2) speaks about the precautionary principle according to which “Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.
The court, the WTO panels as well as the appellate body often stress the requirement of proportionality between the acts of the community institutions and the objective sought to be achieved. The acts of the institutions must as far as possible the least trade restrictive measures. The precautionary principle is based on the fact that in cases of scientific uncertainty ‘no evidence of harm’ should not be equated with ‘no harm’ and that it is not based only upon the risks involved and the scientific uncertainties but also depends on the technological advancements ((Elizabeth Fisher, ‘Is the Precautionary Principle Justiciable?’ (2001) 13 (3) J Environmental Law 315, 319, 320)).
Pfizer v. Council (2002)
This is the first EC case in which the court examined the precautionary principle in detail. The main issue in this case was concerning the ban (which was not based on any conclusive scientific proof but was imposed on the basis of precautionary principle) on antibiotics used in feedstuffs for animals on the basis that it caused a serious threat to human health by removing therapeutic tools. Though the court held that it’s not necessary to wait until the seriousness of the threat becomes apparent, for the precautionary principle to apply, the risk should be more than purely hypothetical. Though Pfizer argues that the institutions should show at least a probability of risk, the court considered the risk to be one which is the possible of adverse impacts on human health though the necessity of risk assessment in certain cases was acknowledged by the court. The two conditions that were set out by the court were choosing the level of protection and a risk assessment to establish scientific basis. Though the court admits that there can be wide discretion for the community institutions in regard to these, the court may exercise its judicial review to procedural guarantees. The court has also developed some general constraints such as the fact that the precautionary principle applies to the protection of public heath and that the responses to the risk must not be based on zero risk. The rejection of zero risk assessment can also be seen in Australia-Salmon case. The court also held that the community institutions should carry out a risk assessment thoroughly and should base measures on scientific advice founded on the principles of excellence, transparency and independence.
EC Hormones Case
The case was concerning a ban introduced by the EC on the import of meat and meat products from animals treated with growth promoting hormones wherein the appellate body observed on similar lines as that of the Pfizer case in relation to the minimum threshold of risk required. It specifically stated the risk to be more than a theoretical one. In the instant case the measure was introduced by the SPS agreement ((The WTO Agreement on the Application of Sanitary and Phytosanitary Measures))under article 3.3 ((Members may introduce or maintain sanitary or phytosanitary measures which result in a higher level of sanitary or phytosanitary protection than would be achieved by measures based on the relevant international standards, guidelines or recommendations, if there is a scientific justification, or as a consequence of the level of sanitary or phytosanitary protection a Member determines to be appropriate in accordance with the relevant provisions of paragraphs 1 through 8 of Article 5.(2) Notwithstanding the above, all measures which result in a level of sanitary or phytosanitary protection different from that which would be achieved by measures based on international standards, guidelines or recommendations shall not be inconsistent with any other provision of this Agreement.))and the appellate body rejected the requirement of a quantifiable risk and rejected the concept of probability. The appellate body has also agreed with the opinion of the court in Pfizer case in regard to minority opinion and observed that the government may rely on minority opinion if it is from qualified sources as the right to rely on minority opinion is better when compared to the life threatening risks. The appellate body rejected the contention that the precautionary principle can be used to override the necessity of formal risk assessment.
Exceptions to the general principle
Though the general principle is that the precautionary principle cannot be used to override an express provision of EC law, there have been instances where the courts have interpreted the precautionary principle to a grater extent than it was meant to be. In Les Laboratoires Servier v Commission (2003) where the issue was regarding the revoking of its marketing authorisation where the harmfulness of a medicinal product is proven, the court interpreted with the help of precautionary principle to mean that “authorities were under an obligation to withdraw authorisation where there were ‘reasonable doubts’ about the safety or efficacy of the medicine ((Ilona Cheyne, ‘The Precautionary Principle in EC and WTO Law: Searching for a Common Understanding’ (2006) 8 Envtl. L. Rev. 257, 271)).” Another example is that of Monsanto Case. Moreover in the case of Waddenzee (2004) which was concerning withholding authorisation of plans by public authorities which has a significant effect on the environment, the court clarified it to mean that authorisation could be given only where ‘no reasonable scientific doubt remains as to the absence of such effects ((Ilona Cheyne, ‘The Precautionary Principle in EC and WTO Law: Searching for a Common Understanding’ (2006) 8 Envtl. L. Rev. 257, 272)). The precautionary principle has been used as an interpretative tool also in cases connected with the Framework Waste Directivewhere waste is defined as “anything which falls within a list of disposal …………… and which is discarded.” In Van de Walle (2004) where the issue was with regard to petroleum leak into land, it was observed by the court that “the meaning of the term ‘discard’ could not be interpreted restrictively because the Directive was intended to protect the environment in the light of the precautionary principle and held that the soil that was contaminated by the leaked hydrocarbon can also be classified as waste ((Ilona Cheyne, ‘The Precautionary Principle in EC and WTO Law: Searching for a Common Understanding’ (2006) 8 Envtl. L. Rev. 257, 272)).
The use of precautionary principle in relation to interpretation to WTO agreements can be seen though not expressly in the matter of US-Shrimp which was concerning the measure that banned imports of shrimp unless it had been harvested in a manner which protected endangered turtles which constituted an import restriction under Article XI of GATT but was defended under Article XX (g) which permits exceptions for measures relating to conservation of exhaustible natural resources. The Appellate Body observed that the term ‘exhaustible natural resources’ includes species which were not endangered in spite of arguments in favour of restricting it to endangered renewable resources which is an application of the precautionary principle. Moreover in EC-Asbestos the Appellate Body construed the term physical properties to include risk to health.
Criticisms to precautionary principle – The moot point
The precautionary principle has been severely criticized on the ground that it is flawed and very vague, incoherent and may result in adverse effects if implemented. It is also stated that though the EU favours the precautionary principle, the United States have not accepted the precautionary principle for controlling the risks ((Marko Ahteensuu, ‘Defending The Precautionary Principle Against Three Criticisms’ (2007) 11(61/56) 4 TRAMES 366–381, 367)). Moreover it should also be noted that the principle is not universal as the states are very selective in applying this principle which is clear from the fact that the states have adopted the same in Climate change conventions and Biological Diversity conventions but not in Nuclear Safety conventions and Rotterdam PIC Convention.
One major reason for abandoning the precautionary principle is that the same is ill defined and cannot be used as a useful guidance for decision making. The precautionary principle lacks in mentioning the amount of precaution that has to be taken and it does not seemingly have a conceptual clarity and precision. It is admitted that the initial references to this principle were made without a precise definition and there are several alternatives to the term ‘precautionary principle’ as terms such as precautionary measure, principle of precaution, precautionary action, precautionary approach etc are used ((Marko Ahteensuu, ‘Defending The Precautionary Principle Against Three Criticisms’ (2007) 11(61/56) 4 TRAMES 366–381, 368))which sometimes leads to the clarity in the meaning of the exact term. The term ‘precautionary approach’ was used during the negotiation of the 1995 Agreement on Straddling and Highly Migratory Fish Stocks and some suggests that “the precautionary principle is applied in situations of high uncertainty with a risk of irreversible harm entailing high costs whereas the precautionary approach is used where the level of uncertainty and potential costs are merely significant and the harm is less likely to be irreversible ((Birnie, P., Boyle, A. and Redgwell, C. International Law and The Environment (3rd ed Oxford, OUP 2009) 155)).” The main criticism which is pointed towards the precautionary principle is due to the fact of definitional variations which means that there are various formulations of the principle which differ significantly in regard to their wording and content and definitional generalities which means that the different formulations do not contain specific guidance as regards the measures shown to justify the principle and allows so much discretion with regard to the same ((Marko Ahteensuu, ‘Defending The Precautionary Principle Against Three Criticisms’ (2007) 11(61/56) 4 TRAMES 366–381, 369)). Thus there is no clarity with regard to certain factors like whose responsibility is it to bear the cost of precaution, the exceeded level of precautionary measure, when can we say that a threat actually exists and soon. To the contrary it can also be argued that the precautionary principle is not the only principle or doctrine that has got these drawbacks, as for example, the principle of sustainable development is also subject to different interpretations in different contexts and has got various definitions in different texts.
Another major criticism which is most often stated against the precautionary principle is that it is incoherent and hence it should not be used for risk decision making. It is stated to be incoherent because there always exist a confusion as to whether an action leads to a catastrophe or not and at the same time whether the corresponding inaction leads to a catastrophe or not. Moreover the precautionary principle is also considered not to be a risk free alternative (those who support this view states that because of lack of knowledge no one is certain about risk free alternatives) and that the precautionary actions may produce unacceptable risks in particular cases.
It is also claimed by some that the implementation of the precautionary principle increases the risk imposition as its implementation causes unnecessary consequences and result in adverse effects. The reason why they suggest that the implementation of the precautionary principle causes a new environmental threat can be clarified with the help of an example suggested by Henry I. Miller and Gregory Conco according to whom “if the precautionary principle had been applied decades ago to innovations like polio vaccines, and antibiotics, regulators might have prevented occasionally serious, and sometimes fatal, side effects by delaying or denying approval of those products, but that precaution would have come at the expense of millions of lives lost to infectious diseases ((Marko Ahteensuu, ‘Defending The Precautionary Principle Against Three Criticisms’ (2007) 11(61/56) 4 TRAMES 366–381, 377)).” Similarly if food is rejected on the ground that it contains genetically modified kernels, then there is likelihood that people may die out of starvation. Moreover it is also stated that the implementation of precautionary principle results in prevention of technological development and may also cause economic burden due to the time consuming and expensive methods. The various challenges to the precautionary principle also comes because of its contextual difficulties which is clear from the fact that the states which posses a major stake in biotechnology industries favours an export friendly framework based upon sound science whereas the European Union who are not the major exporters of agricultural products restrict the importation of living modified organisms in situations of scientific uncertainty by following a precautionary approach ((Mike Feintuck, ‘Precautionary Maybe, but What’s the Principle? The Precautionary Principle, the Regulation of Risk and the Public Domain’’ (2005) 32 J.L. & Soc’y 371)).
The application of the principle to slight harms and risks if often mentioned as a criticism but it should be noted that “the addition of many small and thus neglected risks might end up amounting to a large risk ((Katie Steele, ‘The precautionary principle: a new approach to public decision-making?’ (2006) 5 Law Prob. & Risk)).” But at the same time the precautionary principle is considered weaker and considered to be an obstacle to the development of scientific knowledge and the development of technologies that may have environmental benefits on account of the fact that there is always a possibility that “the scientific tests required to prove or disprove potential harm if undertaken, could introduce the very risks being guarded against, while, if not undertaken, could deny the possibility of scientific proof of harm being found ((Mike Feintuck, ‘Precautionary Maybe, but What’s the Principle? The Precautionary Principle, the Regulation of Risk and the Public Domain’ (2005) 32 J.L. & Soc’y 371)).”
It is of no doubt that the decision making with regard to precautionary principle is usually political and usually it is difficult for the tribunals to oversee the entire process as it is a principle and not essentially a rule and hence do not always determine the outcome of disputes by imposing rights and obligations but only act as a guide to the creation and interpretation of certain norms ((Ilona Cheyne, ‘The Precautionary Principle in EC and WTO Law: Searching for a Common Understanding’ (2006) 8 Envtl. L. Rev. 257, 258)). Hence there still exists confusion as to whether the precautionary principle is a legal principle or a policy guideline. It has also been stated that the precautionary principle has still not achieved the status of customary international law as it is not seen implemented in most f the areas of international environmental law, as for example, in the global forestry policy ((Alexander Gillespie, ‘The Precautionary Principle in the Twenty-First Century: A Case Study of Noise Pollution in the Ocean’ (2007) 22 Int’l J. Marine & Coastal L. 61, 70)). The precautionary principle is also stated to non justiciable as is clear from the observation made in the case of R v. Sec of state for Trade and Industry ex parte Duddridge (1995) that Article 174(2) of the EC treaty do not create a specific obligation to take an action but only forms a basis on which future policies should be formulated ((Elizabeth Fisher, ‘Is the Precautionary Principle Justiciable?’ (2001) 13 (3) J Environmental Law 315, 324)). Though there exists a slight confusion as to whether there is an express duty to act mandated by the precautionary principle, it can be seen from the observation made in the case of Artegodan that the precautionary principle requires the authorities to act so as to prevent risks to health, safety and environment. It should also be noted that if the standard is set to mean that the risk should be considerably serious so as to apply the precautionary principle, it means that the principle is weaker in its application. The basic problem still remains that the courts are not vested with enough competence to assess and appreciate the evidence in matters concerning environment which is clear from the observation made in the case of A.P. Pollution Control Board v. Nayudu (1999) that the precautionary principle is a justification for the establishment of a specialist environmental court.