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.
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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.
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. (Birnie, 2002) 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” (Scott, 2005). 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. (Jacqueline, 2004).
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.
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. (Nancy, 2005) 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: “Mindful also of the precautionary measures for the protection of the ozone layer which have already been taken at the national and international levels” (Scott, 2005).
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) at the national and international levels. Moreover, the amendments to the Montreal Protocol which took place in 1990 granted the parties determination “to protect the ozone layer by taking precautionary measures to control equitably total global emissions of substances that deplete it.” (Nancy, 2005) This wording in the Protocol and subsequent amendments was the first time ever when such measures were expressed to be the basis for adopting these international measures. In expanding the scope of the treaties which empower the precautionary principle it is plausible to notice that in 1987 the Ministerial Declaration of the Second North Sea Conference it was held that precautionary approach is necessary in order to avoid the harmful effects of the substances being dumped into the sea. Following years produced few documents where the present approach was highlighted. Finally, the 1990 Bergen Ministerial Declaration on Sustainable Development in the ECE Region was the first international act to state the principle being linked to sustainable development. This declaration reads as follows: “In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate attack and prevent the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific evidence should not be used as a reason for postponing measures to prevent environmental degradation.” (Birnie, 2002).
The most important part which defines the core of the precautionary principle is that “lack of full scientific evidence should not be used as a reason for postponing measures to prevent environmental degradation” (Jacqueline, 2004) In general terms this provision opened the gates for inclusion of the precautionary principle in many more international treaties. It is especially important that precautionary principle was used in the 1992 Biodiversity Convention and 1992 Climate change Convention which deal with the global issues of the environment. Series of other conventions such as the 1991 Bamako Convention, the 1992 UN/ECE Transboundary Watercourses Convention, the 1992 OSPAR Marine Environment Convention and the 1992 Baltic Sea Convention were quick to adopt the principle. The Article 3(2) of the 1992 Baltic Sea Convention states that “the Contracting Parties shall apply the precautionary principle, i.e., to take preventive measures when there is reason to assume that substances or energy introduced, directly or indirectly, into the marine environment may create hazards to human health, harm living resources and marine ecosystems, damage amenities or interfere with other legitimate uses of the sea even when there is no conclusive evidence of a causal relationship between inputs and measures referred to in paragraphs 1 and 2 of this article, the Parties shall be guided by the following principles: a) The precautionary principle, by virtue of which 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 another hand.” (Nancy, 2005) Hence, the wording in the present convention suggests that the precautionary approach was taken very seriously in the region of the Baltic Sea. Consequently, all the nine countries bordering the Baltic Sea including Denmark, Germany, Sweden, Estonia, Finland, Latvia, Lithuania, Poland and Russia signed and ratified the convention.
The introduction of the principle in various environmental treaties plays a significant part in the process of the precautionary principle gaining more weight in the international law. But the most important aspect of this approach is the role that it played in the 1992 UNCED Conference in Rio de Janeiro. Foremost must be its specific inclusion as Principle 15 of the 1992 Rio Declaration, which reads:
“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.” (Scott, 2005) As it was mentioned previously, both conventions, UN Framework Convention on Climate Change and Convention on Biological Diversity, emerging from Rio, contain the precautionary principle. Moreover, the principle is found in Agenda 21 and in particular in Chapter 17.01 on Protection of the Oceans, which expressly insists ‘new approaches to marine and coastal area management and development at the national sub regional, regional and global levels, approaches that are integrated in content and are precautionary and anticipatory in ambit…’ (Jacqueline, 2004) Hereof, the distinctive nature of precautionary principle is worth mentioning. Besides the fact that variety of measures can be used to implement it, it is unique in the way in which, and the time at which, the measure to be adopted.
The Rio Declaration, in its’ very least effect initiates the precautionary thinking in various international law instruments. However, even though the declaration is ratified by a large number of countries it is not binding in nature. It must be said that “the precautionary principle is now an important instrument for providing guidance to states and the international community in the development of international environmental law and policy in the face of scientific uncertainty…” (Jacqueline, 2004) Nevertheless, it would be too early to treat this instrument as a part of customary international law because the status of precautionary principle is still questionable. From here we need to look at the case law regarding the precautionary principle as the rule of customary international law and analyze the standards that a principle must meet in order to become a part of the customary international law.
Customary International Law and State Practice of the Rule of Law
In order to understand the status of the precautionary principle in the international law, one needs to explain the status of that law itself. I will try to answer the question of what is the customary international law and what are the criteria for the rule to become a part of customary international law.
The traditional doctrine explaining the customary international rules claims that a mere fact of consistent international practice is not enough to create a rule of law in the sense of the practice. Hence an additional element is required. Customary rules result from the combination of two elements: “an established, widespread, and consistent practice on the part of States; and a psychological element known as the opinio juris sive necessitatis (opinion as to law or necessity).” (Axelrod, 2005) Very good example on this point is the ICJ judgment in the North Sea Continental Shelf case where the process by which a treaty provision might generate a rule of customary law is discussed. It reads from the judgment of this case that “not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis” (Scott, 2005).
In this point the paradox is being reached where the implication suggests that in order for the rule to constitute customary law such rule must be practiced by the States. Hence, the question arises of how a state practices such rule which is not a rule of customary law before it does so. It is known that the precautionary principle is widely applied within the domestic levels of legislation. It has become a part of the European Union’s legislative process with regards to Environmental laws. The principle is expressed in the Community’s Treaty provision under the Title of Environment. Article 174(2) reads: “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. Environmental protection requirements must be integrated into the Community’s other policies.” (Nancy, 2005) Besides that, few directives and regulations on the environment regard the precautionary principle as an essential part of Environmental policy. Moreover, countries like Australia have been a very cautious with implementation of this principle. It was in 1993, when Justice Stein’s seminal Leatch decision began the process of recognition and acceptance of the principle in Australian Law. (Axelrod, 2005) Subsequently, the principle has been incorporated in Australian Environmental Statutes and it continues to date to have the potential to become a central feature of Australian environmental law and policy. Nonetheless, international law is a creature of constructed obligations, which are norms essentially accepted by states for participation in the international community. If states adopt the precautionary principle, they choose to contract an obligation – a new norm of international law. Consequently, it can be claimed that at least among the developed states this principle is common and widely spread. On the contrary, it is not accepted by all the international community and moreover, another, psychological element of opinio juris needs to be met. Evidently, it is clear that the precautionary principle even though being applied in many national jurisdictions, does not meet uniformity and international consensus in order to be regarded as the rule of customary international law.
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From the foregoing follows that the precautionary principle is a relatively new principle in international environmental law and has not yet become a rule of customary international law. Nevertheless, the evolution of precautionary principle over the years proved that the principle plays a significant role in international environmental law. Firstly, environmental policy making shifted from traditional tort mechanism, where the harm is being assessed only after its occurrence to a more applying mechanism in this area, such as the use of precaution. Furthermore, even though the universal definition doesn’t exist it has been agreed that the lack of scientific evidence should not be used as a reason for postponing measures to prevent environmental degradation. Moreover, the burden of proof has been shifted upon those who seek to continue the potentially harmful practice, which brings the states to be more cautious of their carried out activities. Finally, the principle initiated the emergence of new environmental regulations thus strengthening the law itself and bringing it closer to legally binding policies.
Axelrod, Regina, David Downie, and Norman Vig, eds. (2005) The Global Environment: Institutions, Law, and Policy. Washington, DC: CQ Press.
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Jacqueline Vaughn Switzer, (2004) Environmental Politics: Domestic and Global Dimensions, 4th ed. Belmont CA: Thomson/ Wadsworth.
Nancy Kubasek and Gary Silverman, (2005) Environmental Law, 5th ed. Upper Saddle River, NJ: Pearson/ Prentice Hall.
Scott Brennan and Jay Withgott, (2005) Environment: The Science behind the Stories. (San Francisco: Pearson/ Benjamin Cummings).