() the precautionary principle and foreseeability of harm

As we have seen, the rule that states must not cause or permit serious or signifi cant harm to other states or to common spaces is not simply one of responsibility for injury

257 ILC Report (2001) GAOR A/56/10, 427–9.

258 Smets, Rev Eur Droit de l’Env (2000) 1. See also Knox, 96 AJIL (2002) 291.

259 OECD Council Recommendations C (74) 224 (1974); C (77) 28 (1977); C (78) 77 (1978); C (79) 116 (1979), collected in OECD and the Environment (Paris, 1986).

260 Smets, Rev Eur Droit de l’Env (2000) 1, 20–7.

261 1982 UNCLOS, Articles 24, 227. ²⁶² Infra, Ch 5.

ex post facto. It is primarily an obligation of diligent prevention and control of fore-seeable risks, and in this sense it can be said that international law already adopts a

‘precautionary approach’. Th e question then arises: at what point does this obligation of diligent control and regulation arise?

Th is is a question which can only be answered by reference to the foreseeability or likelihood of harm and of its potential gravity. Th e Trail Smelter Arbitration²⁶³ suggests that the obligation arises if there is actual and serious harm which is likely to recur; the Corfu Channel Case²⁶⁴ suggests that it also arises when there is a known risk to other states. In general, however, foreseeability of harm, in the sense of an objectively deter-mined risk, will usually be suffi cient to engage the state’s duty of regulation and con-trol. Th is is the position adopted by the ILC, whose 2001 Articles on Transboundary Harm defi ne risk to encompass both ‘a low probability of causing disastrous harm’, and ‘a high probability of causing signifi cant harm’.²⁶⁵ Th us, both the magnitude and probability of harm are relevant factors; what is objectively foreseeable may vary over time, and will depend on the state of knowledge regarding the risk posed by the activ-ity in question at the time when it has to be appreciated.²⁶⁶ Moreover, the existence of a risk is not exclusively a scientifi c question:

It is essential to bear in mind that the risk that is to be evaluated in a risk assessment under Article 5.1 is not only risk ascertainable in a science laboratory operating under strictly con-trolled conditions, but also risk in human societies as they actually exist, in other words, the actual potential for adverse eff ects on human health in the real world where people live and work and die.²⁶⁷

Th ese precedents show that a state cannot be required to regulate activities of which it is not and could not reasonably have been aware; equally clearly the same must be true of activities which the state did not know, and could not reasonably have known, to be potentially harmful. Th us, if no state could have foreseen the ozone-depleting poten-tial of CFCs when fi rst introduced, no duty of diligent regulation and control would arise at that time regardless of their eventual impact. So much is common sense, sub-ject to what is said below concerning a duty to enquire further by conducting environ-mental impact assessments. Risk is a complex concept, however, entailing judgements not only about the probability and scale of harm, but about the causes of harm, the eff ects of the activities, substances or processes in question, and their interaction over time. Th ese are not easy questions to answer with certainty, even for scientists. Very

263 Supra n 216.

264 ICJ Reports (1949) 18–22. See also Bosnian Genocide Case, ICJ Reports (2007) para 432.

265 Article 2 and commentary in ILC Report (2001) GAOR A/56/10, 387 paras (2)–(3). For the ILC’s earlier approach, which lists categories of ‘activities involving risk’ see Barboza, 6th Report, draft Article 2, UN Doc A/CN 4/428 (1990). Compare the approach to risk assessment adopted by the WTO Appellate Body in EC Measures Concerning Meat and Meat Products, WT/DS26/AB/R (1998) para 184: ‘Although the utility of a two-step analysis may be debated, it does not appear to us to be substantially wrong.’

266 ILC Report (2001) GAOR A/56/10, 385, paras (14)–(15), 387, paras (1)–(3).

267 EC Measures Concerning Meat and Meat Products, WT/DS26/AB/R (1998) paras 179–86, referring to Article 5 of the SPS Agreement.

oft en, they can be understood, if at all, only aft er prolonged enquiry and monitoring, as in the Trail Smelter case.

Some states have asserted that they are not bound to take action to control pos-sible global or transboundary risks until there is ‘clear and convincing’ scientifi c proof of actual or threatened harm. As we shall see in Chapter 6, this argument has been used at various times to delay the negotiation of measures to tackle the risk of global climate change, ozone depletion and acid rain. It refl ects the formulation of inter-national law in the Trail Smelter Case, but makes no allowance for the reality of sci-entifi c uncertainty in matters of causation and prediction of long-term eff ects, or for the diff erent context of a case concerned principally with liability for actual damage.

If the high standard of proof applied in Trail Smelter were required in contempor-ary international law, irreversible or very serious harm might occur before the causes could be fully understood or preventive action initiated. At the same time some states may understandably be reluctant to undertake expensive and possibly futile measures to deal with problems whose origin and character remained uncertain. Others may object to measures intended to protect the environment if there is no adequate scien-tifi c basis—trade bans on GMOs for example.

(a) Principle 15 of the Rio Declaration

Determining what the standard of proof should be in the above situations, or who bears the burden of proof of risk, are questions of immense practical importance. It is in this context that the so-called precautionary principle or approach has acquired spe-cial signifi cance.²⁶⁸ Inspired by its use in Swedish and German environmental law and policy,²⁶⁹ the precautionary principle was fi rst employed internationally in the North Sea Conference in 1984 and later affi rmed by EC governments in the 1990 Bergen Ministerial Declaration on Sustainable Development. Based on these pre cedents, a text proposed by the European Union²⁷⁰ secured global endorsement in the 1992 Rio Declaration on Environment and Development in the following terms:

Principle 15: 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 irre-versible damage, lack of full scientifi c certainty shall not be used as a reason for postponing cost-eff ective measures to prevent environmental degradation.

268 See de Chazournes, in Ndiaye and Wolfrum (eds), Law of the Sea, Environmental Law and Settlement of Disputes (Leiden, 2007) 21; Wiener, in Bodansky, Brunnée, and Hey (eds), Handbook of International Environmental Law, Ch 25; Atapattu, Emerging Principles of IEL, Ch 3; Böckenförde, 63 ZAÖRV (2003) 313; de Sadeleer, Environmental Principles (Oxford, 2002) Ch 3; Bechmann and Mansuy, Le Principe de Précaution (Paris, 2002); Trouwborst, Evolution and Status of the Precautionary Principle in International Law (Th e Hague, 2002); Martin-Bidou, 103 RGDIP (1999) 631; Freestone and Hey, Th e Precautionary Principle and International Law (Th e Hague, 1996); O’Riordan and Cameron (eds), Interpreting the Precautionary Principle (London, 1994).

269 Sand, 6 Hum & Ecol Risk Assessment (2000) 445, 448; Boehmer-Christiansen, in O’Riordan and Cameron, op cit, 31; Von Moltke, in Royal Commission on Environmental Pollution, 12th Report (1988) Annex 3, 57.

270 For the EC’s initial draft see UN Doc A/Conf 151/PC/WG 111/L 8/Rev 1 (1991).

At US insistence this formulation favours the term ‘precautionary approach’ rather than ‘precautionary principle’. During negotiation of the 1995 Agreement on Straddling and Highly Migratory Fish Stocks the term ‘precautionary approach’ was again preferred, in the belief that the ‘approach’ off ers greater fl exibility and will be less potentially restrictive than the ‘principle’.²⁷¹ Few commentators regard the diff erence in terminology as signifi cant,²⁷² although one view is that the precautionary principle applies in situations of high uncertainty with a risk of irreversible harm entailing high costs, whereas the precautionary approach is more appropriate, it is argued, where the level of uncertainty and potential costs are merely signifi cant, and the harm is less likely to be irreversible.²⁷³ However, actual use of the terms in treaties contradicts any such distinction and reveals instead that European treaties and EC law generally refer to the precautionary principle,²⁷⁴ whereas global agreements more oft en refer to the precautionary approach or precautionary measures.²⁷⁵

Nevertheless, the attempt to distinguish the ‘approach’ from the ‘principle’ points to the reality that the concept of precaution appears to mean diff erent things in dif-ferent contexts. Th is is not a subject on which consensus is identifi able.²⁷⁶ Much of the confusion surrounding it stems from a failure to distinguish the identifi cation of risk from the entirely separate question of how to respond to that risk. Th us to suggest that states shall ‘apply a precautionary approach (or principle)’ may mean that when faced with scientifi c uncertainty they must be more cautious about identifying risks, or it may mean that they must act more cautiously by taking measures to deal with those risks. Used in the former sense, the precautionary principle is a sensible development in international environmental law. Used in the latter sense, however, it is not clear whether ‘precautionary action’ or ‘precautionary measures’ represent a radically new approach to prioritizing environmental protection, or diff er only rhetorically from the customary obligation of due diligence codifi ed in Principle 2 of the Rio Declaration and considered earlier.

Whether viewed as a principle or as an approach, the essence of precaution is aptly explained by Freestone:

Th e precautionary approach then is innovative in that it changes the role of scientifi c data.

It requires that once environmental damage is threatened action should be taken to control

271 See FAO, Th e Precautionary Approach to Fisheries with Reference to Straddling Fish Stocks and Highly Migratory Stocks (1994) UN Doc A/Conf 164/INF/8.

272 See e.g. Freestone, 6 JEL (1994) 212; Hey, 4 Georgetown IELR (1992) 303.

273 See Garcia, in FAO, Precautionary Approach to Fisheries, Technical Paper 350/2 (Rome, 1996) 53–5 for the most detailed elaboration of the distinction.

274 See e.g. 1992 Paris Convention for the Protection of the Marine Environment of the Northeast Atlantic, Article 2; 1992 UNECE Convention for the Protection of Transboundary Watercourses and Lakes, Article 2(5); 1992 Maastricht Treaty on European Union, Article 174; 1994 Danube Convention, Article 2(4);

1999 Rhine Convention, Article 4.

275 See e.g. 1992 Convention on Climate Change, Article 3; 1992 Convention on Biological Diversity, Preamble and 2000 Protocol on Biosafety; 1994 Sulphur Protocol, 1998 Heavy Metals Protocol, and 1998 Persistent Organic Pollutants Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution;

1996 Protocol to the London Dumping Convention, Article 3; 2001 POPS Convention, Article 1.

276 See Bodansky, in Caron and Scheiber (eds), Bringing New Law to Ocean Waters (Leiden, 2004) 381.

or abate possible environmental interference even though there may still be scientifi c uncer-tainty as to the eff ects of the activities.²⁷⁷

Th is does not mean that science ceases to be relevant in judging the existence of risk, or that states are required or permitted to act on the basis of mere hypothesis or purely theoretical assessments of risk. On the contrary:

Recourse to the precautionary principle presupposes that potentially dangerous eff ects deriving from a phenomenon, product or process have been identifi ed, and that scientifi c evaluation does not allow the risk to be determined with suffi cient certainty.²⁷⁸

Th us there still has to be some scientifi c basis for predicting the possibility of harmful eff ects, some ‘reason to believe’ or ‘reasonable grounds for concern’.²⁷⁹ As the European Court put it in the Pfi zer Case, ‘a preventive measure cannot properly be based on a purely hypothetical approach to risk, founded on mere conjecture which has not been scientifi cally verifi ed’.²⁸⁰ At the same time, the evidence of risk need not necessarily be based on the majority of expert opinion: ‘the very existence of divergent views pre-sented by qualifi ed scientists who have investigated the particular issue at hand may indicate a state of scientifi c uncertainty’.²⁸¹

To summarize the position: if the evidence is suffi ciently conclusive to leave lit-tle or no room for uncertainty in the calculation of risk, then there is no justifi ca-tion for the precauca-tionary principle to be applied at all.²⁸² Rio Principle 15 requires only that uncertainties regarding, for example, the capacity of the environment to assimilate pollution, or of living resources to sustain exploitation, or the impact of proposed activities, or any other relevant factor, should be acknowledged and taken into account when determining what the risks of harm may be and what controls are needed. If assumptions about harmful eff ects are to be made they should, in other words, be more cautious, allowing for the possibility of error or ignorance, and in that sense refl ecting a better understanding of science, not less science.²⁸³ Another way of

277 Freestone, 6 JEL (1994) 211.

278 EC, Communication on the Precautionary Principle, COM (2000)1, 4.

279 See EC Measures Concerning Meat and Meat Products (1998) WTO Appellate Body, paras 120–5; 1996 Protocol to the London Dumping Convention, Article 3(1) (‘reason to believe’); 1992 Paris Convention for the Protection of the NE Atlantic, Article 2 (‘reasonable grounds for concern’); 1992 Helsinki Convention on the Protection of the Baltic Sea Area, Article 3(2) (‘reason to assume’) and see Gray and Bewers, 32 Mar Poll Bull (1996) 768–71 who criticize some uses of the precautionary principle for relying on unsustainable suspicion rather than scientifi c evidence.

280 Pfi zer Animal Health v Council of the EU (2002) II ECR 3305, para 143.

281 EC Measures Concerning Meat and Meat Products (1998) WTO Appellate Body, para 194. But dissent is not necessarily evidence of risk: it is usually possible to fi nd a scientist to oppose any conclusion of a body of experts.

282 MOX Plant Case (Provisional Measures) ITLOS No 10 (2001) paras 71–81. See also Uruguay’s argu-ment in the Pulp Mills Case.

283 Gray and Bewers, 32 Mar Poll Bull (1996), 768–71. On the role of science and the precaution-ary principle see Calman and Smith, 79 Pub Admin (2001) 185; O’Riordan and Cameron, Integrating the Precautionary Principle, 69; Freestone and Hey, Th e Precautionary Principle and International Law, 97–146;

FAO, Precautionary Approach to Fisheries, Technical Papers 350/1&2 (Rome, 1996).

explaining the point is to say that the environment should be given the benefi t of the doubt.²⁸⁴ Th e main eff ect of Principle 15 in international law therefore is to lower the standard of proof of risk. Where there is some evidence of a risk of serious or irrevers-ible harm, even if uncertainty exists, appropriate action may be called for and ‘Lack of full scientifi c certainty shall not prevent the proposal from proceeding’.²⁸⁵

Principle 15 stresses that the precautionary approach must be ‘widely applied by states according to their capabilities’. Th is includes application to problems of glo-bal environmental risk, such as climate change and biological diversity, as well as to transboundary and national environmental risks, in furtherance of the object-ive of sustainable development. Th e 1985 Ozone Convention and its 1987 Montreal Protocol are perhaps the best examples of the application of the precautionary prin-ciple or approach in the form found in Prinprin-ciple 15 of the Rio Declaration because they required action on the part of states before the causal link between ozone depletion and CFCs had been conclusively demonstrated.²⁸⁶ Since 1990 the precautionary prin-ciple or approach has also been adopted by a growing number of treaty institutions, or incorporated in the text of treaties, dealing with marine pollution,²⁸⁷ international watercourses,²⁸⁸ persistent organic pollutants,²⁸⁹ air pollution and climate change,²⁹⁰ transboundary trade in hazardous waste²⁹¹ and endangered species,²⁹² biosafety,²⁹³ and the conservation of biological diversity and marine living resources.²⁹⁴ In each of these cases uncertainty in the prediction of causes and long-term eff ects has induced the parties to adopt precautionary policies, including the phasing out of industrial waste-dumping at sea, the adoption of clean or low-waste technology, the elimination

284 Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij, I ECR (2004) 7405, para 10 (‘Waddenzee Case’).

285 See 2001 POPS Convention, Article 8(7)(a) dealing with listing of harmful chemicals. See also 2000 Biosafety Protocol, Article 11(8).

286 Infra, Ch 6.

287 1992 Helsinki Convention on the Protection of Baltic Sea Area, Article 3(2); 1992 Paris Convention for the Protection of the NE Atlantic, Article 2; 1996 Protocol to the London Dumping Convention, Article 3; 1996 Syracuse Protocol for the Protection of the Mediterranean Against Pollution form Land-based Activities, preamble. See MacDonald, 26 ODIL (1995) 255 and infra, Ch 8.

288 1992 UNECE Convention on Transboundary Watercourses and Lakes, Article 2(5); 1994 Danube Convention, Article 2(4); 1999 Rhine Convention, Article 4. Th e principle is not included in the 1997 UN Convention on International Watercourses.

289 2001 POPS Convention, Article 1; 2001 Convention on the Control of Harmful Anti-fouling Systems on Ships.

290 1994 Sulphur Protocol, Preamble; 1998 Heavy Metals Protocol, Preamble; 1998 Persistent Organic Pollutants Protocol, Preamble; 1992 Convention on Climate Change, Article 3. See also 1991 European Energy Charter, Article 19.

291 1991 Bamako Convention, Article 4(3)(f); infra, Ch 8. Th e 1989 Basel Convention does not refer to the precautionary principle, but the ban on waste trade between developed and developing states adopted in 1994 may be seen as precautionary: see Ch 8.

292 See infra, Ch 12. ²⁹³ 2000 Biosafety Protocol, Articles 1, 10(6), 11(8).

294 1992 Convention on Biological Diversity, Preamble; 1995 FAO International Code of Conduct for Responsible Fisheries, General Principles and Article 6(5); 1995 UN Agreement Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Articles 5, 6, and infra, Ch 13.

of persistent organic pollutants, and a revised formulation of sustainable yields in international fi sheries. Without a precautionary approach, regulatory action might have been delayed pending more compelling evidence of a risk of harm.

(b) Burden of proof of risk

It is sometimes asserted that the precautionary principle requires the promoter of a potentially harmful activity to prove that there is no risk of harm.²⁹⁵ It is true that, for example, pharmaceutical companies or aeroplane manufacturers must normally show that their products meet acceptable safety standards before they can be licensed for public use. But this has been true for many years; it is not a consequence of any application of Rio Principle 15 and long predates the invention of the precautionary principle. No one would fl y or use medicines unless they had been tested and shown to be within acceptable safety standards. In international law, who bears the burden of proving that a risk exists cannot be answered dogmatically, but will depend on the context in which the question arises. International courts have generally required the party alleging a risk of serious environmental harm to adduce enough evidence to establish at least a prima facie case.²⁹⁶ Th ey have not taken the view that the pre-cautionary principle necessarily shift s the burden of proof to the party proposing to undertake potentially harmful activities. Provisional measures were thus refused in the MOX Plant Case and the Pulp Mills Case because the applicants failed to establish a serious risk, despite their reliance on the precautionary principle, but granted in Land Reclamation and Southern Bluefi n Tuna because they could do so.²⁹⁷ But these cases also show that where an environmental impact assessment has not been carried out the promoter of a potentially harmful activity will fi nd it more diffi cult to rebut evi-dence of risk, however slender. Similarly, the Biosafety Protocol is signifi cant mainly because it requires the exporting state to carry out a risk assessment: it does not leave the burden of doing so to the importing state. None of these precedents suggests that international law requires a state to prove that activities within its jurisdiction or con-trol are environmentally ‘safe’—that is not the purpose of an EIA or risk assessment

In document Birnie and Boyle (2009) - International Law and the Environment (Page 189-200)