Sustainable Development Law & Policy Volume 2 Article 7 Issue 2 Spring/Summer 2002 The rP ecautionary Principle in the International Arena Mary Stevens Follow this and additional works at: http://digitalcommons.wcl.american.edu/sdlp Part of the Environmental Law Commons, and the International Law Commons Recommended Citation Stevens, Mary. "The rP ecautionary Principle in the International Arena."Sustainable Development Law and Policy, Spring/Summer 2002, 13-15. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Sustainable Development Law & Policy by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. THE PRECAUTIONARY PRINCIPLE IN THE INTERNATIONAL ARENA By Mary Stevens for proof of harmful effects before taking action.”3 “WHEN AN ACTIVITY RAISES THREATS OF HARM TO THE In 1987, at the second conference where the London ENVIRONMENT OR HUMAN HEALTH, PRECAUTIONARY MEASURES Declaration was adopted, a “precautionary approach” was SHOULD BE TAKEN EVEN IF SOME CAUSE AND EFFECT introduced.4 Even with regard to the protection of the ozone RELATIONSHIPS ARE NOT FULLY ESTABLISHED SCIENTIFICALLY.” layer, the Preamble to the Montreal Protocol provided for WINGSPREAD STATEMENT ON THE PRECAUTIONARY PRINCIPLE, precautionary measures to be taken in controlling CFCs.5 By 1998. 1990, the Precautionary Principle was being referenced in its own right: the parties to the third conference at the Hague The purpose of this paper is to introduce the stated that they “will continue to apply the precautionary precautionary principle in terms of its history, use, and principle, that is to take action to avoid potentially damaging application in several different international agreements. The impacts of substances that are persistent, toxic, and liable to precautionary principle is preventative in nature and stems from bioaccumulate even when there is no scientific evidence to prove the idea that just because an activity cannot be proven unsafe that a causal link exists between emissions and effects.”6 It does not mean that it does not have any negative effects. It has could also be found in the 1990 Bergen Declaration on been heralded and criticized by scientists alike, and it has been Sustainable Development, which connected the importance of applied in so many different ways that its definition depends taking caution in innovation with the achievement of sustainable on which international agreement one is reading. development. DEVELOPMENT OF THE PRECAUTIONARY In order to achieve sustainable development, PRINCIPLE policies must be based on the precautionary principle. Environmental measures must BEGINNINGS anticipate, prevent and attack the causes of The “precautionary principle” has not been present in environmental degradation. Where there are the field of international environmental law for very long, yet threats of serious or irreversible damage, lack it has achieved a prominent position as a major topic of debate of full scientific certainty should not be used over the past ten years. In essence, it advocates the use of as a reason for postponing measures to prevent precaution in situations where some scientific uncertainty exists. environmental degradation.7 The point of the precautionary principle is to anticipate and avoid environmental damage before it occurs. This The precautionary principle has been preventive measure, which is novel in many ways, would referenced in dealing with the protection of the marine ultimately serve to lower mitigation costs of resultant environment. Article 2 of the OSPAR Convention environmental damage. The implementation of the states: precautionary principle is problematic in an economic sense because it places more responsibility on those who create The precautionary principle, by virtue of potential risks than in the past. Its most important – and which preventive measures are to be taken debatable - feature is that it shifts the burden of scientific proof when there are reasonable grounds for concern from those who would like to prohibit or slow down a potentially that substances or energy introduced, directly dangerous activity to those who conduct the activity.1 or indirectly, into the marine environment may Most commentators agree that the precautionary bring about hazards to human health, harm principle originally emerged from Germany in the mid-1970’s.2 living resources and marine ecosystems, A decade later, during international conferences held to discuss damage amenities or interfere with other the protection of the North Sea, Germany introduced its legitimate uses of the sea, even when there is precautionary principle to the rest of the world. At first, the no conclusive evidence of a causal relationship word “precaution” was not even used; the parties agreed instead between the inputs and the effects.8 that “damage to the environment can be irreversible or remediable only at considerable expense and over long periods Also in 1990, the principle of precaution was included and that, therefore, coastal states and the EEC must not wait in the White Paper on Britain’s Environmental strategy SPRING / SUMMER 2002 13 (“White Paper”).9 In the paper, it was written that: not be used as a reason for postponing cost- effective measures to prevent environmental We must analyze the possible benefits and degradation.14 costs both of action and of inaction. Where there are significant risks of damage to the During 1992, international parties convened for the environment, the Government will be United Nations Framework Convention on Climate Change. prepared to take precautionary action to limit This Convention dealt with the problem of pollution, the use of potentially dangerous pollutants, specifically that of greenhouse gases which are causing even where scientific knowledge is not temperatures to rise on a global level. The precautionary conclusive, if the balance of the likely costs principle was referenced at this convention as well. The text and benefits justifies it. This precautionary provides that principle applies particularly where there are good grounds for judging either that action The parties should take precautionary taken promptly at comparatively low cost may measures to anticipate, prevent, or minimize avoid more costly damage later, or that the causes of climate change and mitigate its irreversible effects may follow if action is adverse effects. Where there are threats of delayed.10 serious or irreversible damage, lack of full scientific certainty should not be used as a Europe expressed its belief in the precautionary reason for postponing such measure, taking principle again in 1991 during a meeting between the parties to into account that policies and measure to deal the 1972 London Dumping Convention. There the parties with climate change should be cost-effective agreed that “appropriate measures are taken where there is so as to ensure global benefits at the lowest reason to believe that substances or energy introduced into the possible cost.15 marine environment are likely to cause harm, even when there is no conclusive evidence to prove a causal relation between The Biodiversity Convention was also agreed to in inputs and their effects.”11 Also in 1991, the Bamako 1992. Once again, the precautionary principle was mentioned. Convention, which was convened to discuss problems of Interestingly, the use of the principle in the preamble of this hazardous waste shipments to African countries by wealthier, agreement did not include the cost-benefit language found in industrialized ones, employed a strict version of the Principle 15 of the Rio Declaration. precautionary principle. Under this convention, the parties agreed to prevent “the release into the environment of Where there is a threat of significant reduction substances which may cause harm to humans or the or loss of biological diversity, lack of full environment without waiting for scientific proof regarding such scientific certainty should not be used as a harm.”12 reason for postponing measures to avoid or minimize such a threat. 1992 AND BEYOND 1992 was a big year for international environmental The principle was also found in the Convention on agreements and the precautionary principle is found throughout. the Protection and Use of Transboundary Watercourses and In 1992, the landmark Rio Declaration was signed at the United International Lakes, stating that precaution will be taken Nations Conference on Environment and Development regardless of whether “scientific research has not fully proved (“UNCED”), which was the second significant worldwide a causal link . .”16 Finally, it was also included in the 1992 conference on the environment. Twenty years prior, the United Maastricht Treaty and has continued to be an important principle Nations Conference on the Human Environment took place guiding the European Union: in Stockholm, Sweden. This first conference was motivated primarily by concern over transboundary pollution, particularly The Community policy on the environment . in the form of acid rain. The precautionary principle was not . shall be based on the precautionary principle yet developed at the time of the Stockholm Convention. and on the principles that preventative action However, the precautionary principle did emerge from should be taken, that