What is the status of the precautionary principle in International Law?

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Laurynas Ramuckis 2118

International Environmental Law

Prof. R. Caddell

What is the status of the precautionary principle in International Law?

1. Introduction

        

        Development of International Environmental Law cannot be traced too deep into the past. The concepts of this subject are still relatively new in the international arena. Nevertheless, they play major roles in the process of the evolution of customary international law rules. That is to say about precautionary principle which has attained a significant role in the national and international discourse of environmental law and policy.

        This paper is an effort to define precautionary principle within the frames of international environmental law and to look into the history of evolution of this principle. Furthermore, it is an attempt to assess the role of this principle in the international customary law through treaties’ provisions embodying the precautionary principle and the decisions of the International Court of Justice with regard to the present approach. Moreover, short analysis of the standards to be met in order for the principle to become a part of customary international law will be appraised in this paper. And finally, the look to the role of precautionary principle in the domestic environmental law will be regarded, answering the question of the status of this principle in the national and international levels.

2. The Evolution of Precautionary Principle

        

        Major change in the policy of environmental law was with regards to the shift of the focus from reaction to anticipation whereas the environmental policy-makers began to deal not only with existing, but also with potential problems. Historically, environmental law was dealt through concepts of tort liability. However, tort law compensates for the actual harm caused, and the focus is on the damages instead of avoidance before they occur. Thus it is suggested by the precautionary approach that because of the irreversible nature of the environmental harm, tort mechanisms which are merely concerned with damages after the harm occurred are not appropriate in this area of law. 

        The precautionary principle was introduced at the beginning of 1980’s in connection with the protection of the North Sea. The approach derived from German environmental policy principle “Vorsorgeprinzip”. The universal definition of this principle does not exist because there is no uniform understanding of the meaning of this principle among the states and other bodies of international community. Generally it can be portrayed as the agreement among states to act carefully and with foresight when implementing decisions which concern activities that may have degrading impact on the environment. It has been put by Bergen Ministerial Declaration that “lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation” Furthermore, a fundamental shift of reactive approach of environmental regulation towards anticipatory action is visible through the interpretation of precautionary principle which would shift the burden of proof away from the states which are opposing certain activities onto those in favor of the practices subject to a potential environmental harm. Moreover, the precautionary thinking covers a wide range of possible obligations and actions. It is difficult to distinguish the present approach from a preventive principle, but on the other hand it can be regarded as a reversal of traditional burden of proof.  Apparently, two prominent characteristics of the precautionary principle are: proposition of action to address a serious threat to the environment while there is still some scientific uncertainty, and the shift of the burden of proof upon those who seek to continue the potentially harmful practice, or a practice containing very small amount of evidence of its harmlessness to the environment.

        Evidently, the emergence of new environmental law regulations respectful to the precautionary principle brings the subject to a new era of evolution. It strengthens the non-binding nature of most environmental treaties and further narrows the gap between policy making and implementation. Therefore, the development of the precautionary principle has been one of the most significant achievements in the international environmental law and policy.

3. Precautionary Principle in the International Treaties

        

        The principle of precaution currently plays a very significant role in guiding the legislative bodies in environmental law and policy making in the face of scientific uncertainty. This principle was reflected in the instruments to emerge from the 1992 UN Conference on Environment and Development and unanimously endorsed in the Rio Declaration. However, the Rio Declaration was not the first international instrument created in the light of precautionary approach. It is worth mentioning, that the traditional approach of burden of proof began to shift in 1969 where as in the Oil Pollution Intervention Convention such measures as prevention of grave and imminent danger to coastlines from threat of pollution where implemented. Nevertheless, years passed until the principle was embodied in the international treaty. The first treaty which used the term as such was 1985 Vienna Convention for the Protection of the Ozone Layer. In its’ preamble the following wording is enshrined:

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        “Mindful also of the precautionary measures for the protection of the ozone layer which have already been taken at the national and international levels”

Inclusion of the present sentence into the Vienna Convention is significant in a sense that it boosted the use of a term in later international instruments. Even more, the wording in the treaties to follow became stronger and expressed the global concern of precautionary measures. This statement can be supported by looking at the Montreal Protocol of 1987 where it was noted the certain precautionary measures should be considered to control emission from certain chlorofluorocarbons (CFCs) ...

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