Introduction

The precautionary principle states that if there is a risk of severe damage to humans and/or the environment, absence of incontrovertible, conclusive, or definite scientific proof is not a reason for inaction. It is a better-safe-than-sorry approach, in contrast with the traditional reactive wait-and-see approach to environmental protection. When there is uncertainty regarding the impacts of an activity, the precautionary principle advocates action to anticipate and avert environmental harm.

Article 3 of the UN Framework Convention on Climate Change was just one in a long list of international agreements that contained the precautionary principle, making it one of the most popular legal concepts in international environmental law today. Whereas traditional regulatory practices are reactive, precautionary measures are preventive and pre-emptive. In its simplest form, the precautionary principle (also known as PP) provides that if there is a risk of severe damage to humans and/or the environment, absence of incontrovertible, conclusive, or definite scientific proof is not a reason for inaction. It is a better-safe-than-sorry approach, in contrast with the traditional reactive wait-and-see approach to environmental protection.

Often available scientific evidence provides us cause for concern but does not give conclusive information. In such scenarios, risk assessment compels us to strike a balance between the need to protect health and environment on one hand and the foregone advantages of strict restrictions that may turn out to be unwarranted. It is in this context the role of precautionary principle (PP) emerges. While deciding the need and timing of the application of the PP, it is important to clearly understand the principle and its consequences.

Origin of the Precautionary Principle

In his address to the Parliamentary Earth Summit of the UN Conference on Environment and Development, the Dalai Lama of Tibet noted that ?in the seventeenth century, [Tibetan leadership] began enacting decrees to protect the environment and so we may have been one of the first nations to [enforce] environmental regulations.The Theravada scriptures of Buddhism provide the earliest written sources which could accommodate the concept of precaution. Theravada teaches not to commit harm, the Buddha urging his followers to refrain from ?unwholesome action? and monks prohibited from ?injuring plants and seeds?.

Undeniably, the origin of the concept of precaution may well be found in the history of civilization. In the early stage of civilization, humans had a holistic attitude towards nature which was regarded with sacred veneration. Nature was revered as the provider of life and therefore exploitation of its generosity was considered unethical. Subsequently, nature?s mystery was unraveled by the teachings of monotheistic religions and corresponding developments in science. This elevated the status of humans above the environment. The regard to human life became primordial and gave humans the right to exploit nature without ethical limitation. The struggle to survive and protect human health led to the early use of the concept of precaution.

It has been suggested that the earliest formulation of the precautionary principle in contemporary public policy can be traced in the early 1950s under the guise of what was then called ?safe minimum standard of conservation.? Major environmental issues of the 1960s– the case of DDT (dichloro diphenyl trichloroethane) — led environmentalists and policymakers to rethink their approach to specifically address uncertainties. This paved the way in the 1970s for the establishment of the precautionary principle as a reaction to ?the limitations of public policies based on a notion of ?assimilative capacity,? i.e. that humans and the environment can tolerate a certain amount of contamination or disturbance, and that this amount can be calculated and controlled?.

In the mid-1970s, West Germany?s legislature enacted a national environmental policy which provided for the precautionary approach to environmental protection. Termed as Vorsorgeprinzip, the precautionary principle is considered to be the most important principle of German environmental policy.

Concept and Definition

The term ?precautionary principle? had its origin in the German word Vorsorgeprinzip. An alternative translation of this word would mean ?foresight principle? – which could have given an active and positive impression, as against the reactive and perhaps negative connotation attached with precaution. Though the principle had its roots in the German environmental policy, it has entered the center-stage of the global environmental policy in the past two-and-half decades with several global environmental treaties invoking the PP for decision making. In simple terms, the PP conveys the common-sense based advice – to err on the side of caution. The principle intends to prevent harm to humans, environment, and eco-system at large. Before looking at some of the widely used definitions of the PP, it would be helpful to understand the context and rationale.

When the impacts of a particular activity – such as emission of hazardous substances – are not completely clear, the general presumption is to let the activities go ahead until the uncertainty is resolved completely. The PP counters such general presumptions. When there is uncertainty regarding the impacts of an activity, the PP advocates action to anticipate and avert environmental harm. Thus, the PP favors monitoring, preventing and/or mitigating uncertain potential threats.

There two widely referred definitions of the PP – the first one, The Rio Declaration (or Agenda 21) of 1992, 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.?

This definition given primarily with environmental issues in focus is also extended to cover health issues. The second definition is based on 1998 Wingspread Statement on the Precautionary Principle and it states:

??When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically. The process of applying the precautionary principle must be open, informed and democratic and must include potentially affected parties. It must also involve an examination of the full range of alternatives, including no action. In this context, the proponent of an activity, rather than the public, should bear the burden of proof.?

It is interesting to note the differences between the two definitions. The first one stresses on ?serious or irreversible damage?, whereas the second one states that precaution is relevant to ?harm? in general. Thus the second definition is typical of the way in which the precautionary principle is used by environmental advocacy groups. Some of the other key features of the definition worth noting include:

• Lack of full scientific certainty shall not be used as a reason for postponing: Though scientific uncertainty may not be used for any delay in action, this leaves scope for citing reasons such as poverty reduction priorities for postponing the actions.
• Cost-effective measures: Though scientific uncertainty about the likely impacts prevails, stress on cost-effectiveness compels assessment (however accurate they may be) of costs of proposed actions and compare it with possible alternatives.
• Applied by states according to their capabilities: The capabilities of states, including economic and technical capabilities, could guide the final adoption of the precautionary principle.

It is worth noting the way the burden of proof is treated in these definitions. When an activity is likely to cause harm to the environment and/or humans, the conventional practice is that the opponents of the activity have to provide the proof of the harmful effects caused by the activity. The precautionary principle, on the other hand, shifts the burden of proof to the proponents of the activity – i.e., the proponents have to establish that the proposed activity will not cause any harm to the environment and/or human beings. Further, it is also argued that since scientific uncertainty is inherent in the environmental problems for which the PP is typically applied, the decision-making process based on the PP may become more inclusive, participatory and democratic.

Precautionary Principle vs. Precautionary Approach

At the insistence of the US, the formulation provided under the Rio Declaration favors the term ?precautionary approach? rather than ?precautionary principle?. During negotiation under of the 1995 Convention on Straddling and Highly Migratory Fish Stocks, the term precautionary approach was again preferred in the belief that the ?approach? offers greater flexibility and will be less potentially restrictive than the ?principle?. Few commentators regard the difference in terminology as significant, 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 certainty and potential costs are merely significant and the harm is less likely to be irreversible. However, the actual use of the terms in the treaties contradicts and EC law generally refers to the precautionary principle, whereas global agreements more often refer to the precautionary approach or precautionary measures.

Nevertheless, the attempt to distinguish the ?approach? from the ?principle? points to the reality that the concept of precaution appears to mean different things in different contexts. Much of the confusion surrounding it stems from a failure to distinguish the identification of risk from the entirely separate question of how to respond to that risk. Thus, to suggest that states shall ?apply a precautionary approach (or principle)? may mean that when faced with uncertainty, they must be more cautious in identifying risks, or it may mean that they must be cautious in taking those measures dealing with the risks. Used in the former sense, the precautionary principle is an important development in the international environmental law. Used in the latter sense, however, it is not clear whether references to taking precautionary action or precautionary measures differ more than rhetorically from the customary obligation to prevent harm in Principle 2 of the Rio Declaration.

A basic shift in the approach to environmental protection occurred initially between 1972 and 1982. Earlier, the concept was based on the ?assimilative capacity? rule as revealed from the Principle 6 of the Stockholm Declaration of UN Conference of Human Environment, 1972. The said principle assumed that science could provide policymakers with the information and means necessary to avoid encroaching upon the capacity of the environment to assimilate impacts and it also presumed that relevant technical expertise would be available when environmental harm was predicted and there would be sufficient time to act in order to avoid such harm. But in the 11^th Principle of the UN General Assembly Resolution in World Charter for Nature, 1982, the emphasis shifted to the ?precautionary principle? and this was reiterated in the Rio Conference in 1992 in the principle 15. The inadequacies of the science have led to the precautionary principle of 1982.

Precautionary Principle in International Instruments

The precautionary principle appeared at the international level in the mid-1980s. The principle was first formally acknowledged internationally in the Preamble to the 1985 Vienna Convention for the Protection of the Ozone Layer, in which the Parties acknowledged the ?precautionary measures? which had already been undertaken at both the national and international levels in relation to the protection of the ozone layer. Building on this recognition, in 1987, the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer agreed to take ?precautionary measures? to control global emissions of ozone-depleting substances and noted the ?precautionary measures? already undertaken at national and regional levels in relation to the emission of chlorofluorocarbons. The need for a ?precautionary approach? was also recognized in the sequence of conferences on the North Sea. In the Second North Sea Conference Ministerial Declaration (the London Declaration) in 1987, the principle was referred to three times:

?[I]n in order to protect the North Sea from possibly damaging effects of the most dangerous substances, a precautionary approach is necessary which may require action to control inputs of such substances even before a causal link has been established by absolutely clear scientific evidence;

By combining?approaches based on emission standards and environmental quality objectives, a more precautionary approach to dangerous substances will be established; The parties, therefore, agree to?accept the principle of safeguarding the marine ecosystem of the North Sea by reduction polluting emissions of substances that are persistent, toxic and liable to bioaccumulate at source by the use of the best available technology and other appropriate measures. This applies especially when there is a reason to assume that certain damage or harmful effects on the living resources of the sea are likely to be caused by such substances, even where there is no scientific evidence to prove a causal link between emissions and effects (?the principle of precautionary action?).

At the Third North Sea Conference in 1990, the participants agreed to: ?continue to apply the Precautionary Principle, that is to take action to avoid potentially damaging impacts of substances that are persistent, toxic and liable to bioaccumulate even where there is no scientific evidence to prove a causal link between emission and effect. This process led to the inclusion of the precautionary principle in the Convention on the Protection of the Marine Environment of the North-East Atlantic (the OPSAR Convention).

In 1990, the Bergen Ministerial Declaration on Sustainable Development in the Economic Commission for Europe Region was the first international instrument to treat the principle as one of general application and linked to sustainable development. The Declaration states:

?In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent, and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation?.

In 1991, the Convention on the Ban of Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (the Bamako Convention), signed in Bamako on 29 January 1991, required parties to strive to adopt and implement:

?the preventative, precautionary approach to pollution problems which entails, inter alia, preventing the release into the environment of substances which may cause harm to humans or the environment without waiting for scientific proof regarding such harm. The parties shall co-operate with each other in taking the appropriate measures to implement the precautionary principle to pollution prevention through the application of clean production methods?. In 1991, the United Nations Economic and Social Commission for Asia and the Pacific (ESCAP) resolved that ?in order to achieve sustainable development, policies must be based on the precautionary principle?.

In 1992, the Parties to the Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes agreed to be guided by:

?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 the other hand?.

The four instruments signed at the UNCED (the Earth Summit) in Rio de Janeiro also refer to the precautionary principle. The Rio Declaration states in 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 irreversible damage, lack of full scientific certainty shall not be used a reason for postponing cost-effective measures to prevent environmental degradation?.

The Convention on Biological Diversity recites in the Preamble:

?Noting also that where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat?.

Article 3(3) of the Framework Convention on Climate Change provides that:

?The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost. To achieve this, such policies and measures should take into account different socio-economic contexts, be comprehensive, cover all relevant sources, sinks, and reservoirs of greenhouse gases and adaptation, and comprise all economic sectors. Efforts to address climate change may be carried out cooperatively by interested Parties?.

Agenda 21 refers to the precautionary principle in a number of contexts. For example, in relation to marine environmental protection, Chapter 17 calls for:

?A precautionary and anticipatory rather than a reactive approach is necessary to prevent the degradation of the marine environment. This requires, inter alia, the adoption of precautionary measures, environmental impact assessments, clean production techniques, recycling, waste audits and minimization, construction and/or improvement of sewage treatment facilities, quality management criteria for the proper handling of hazardous substances, and a comprehensive approach to damaging impacts from air, land and water.

In dealing with the protection of the quality and supply of freshwater resources, Chapter 18 of Agenda 21 requires Parties to implement various activities including:

?Introduction of the precautionary approach in water-quality management, where appropriate, with a focus on pollution minimization and prevention through the use of new technologies, product and process change, pollution reduction at source and effluent reuse, recycling and recovery, treatment and environmentally safe disposal?.

In the context of science and sustainable development, Chapter 35 of Agenda 21 states:

?In the face of threats of irreversible environmental damage, lack of full scientific understanding should not be an excuse for postponing actions which are justified in their own right. The precautionary approach could provide a basis for policies relating to complex systems that are not yet fully understood and whose consequences of disturbances cannot yet be predicted.

Many other conventions have subsequently committed their Parties to apply the precautionary principle.

Most importantly, 1992 paved the way for the convergence of the precautionary principle and the climate change issue in international law. At Rio de Janeiro, the world acknowledged the precautionary principle at the level of international law when it adopted the United Nations Framework Convention on Climate Change. Article 3 of the Climate Change Convention partly provides that:

?The parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversi.ble damage, lack of full scientific research should not be used as a reason for postponing such measures, taking into account the policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost.?

A reference to the afore-quoted article was provided in the Preamble of the 1997 Kyoto Protocol and worded as follows, ?Being guided by Article 3 of the Convention?. The precautionary principle is thus a norm that parties to the UNFCCC have endorsed. Contested by some environmentalist and political analysts for being a weak precautionary formulation, legal positivists argue that law is law and its merits have to be interpreted without going beyond the wordings of the pertinent international agreement.

Precautionary Principle as a Rule of Customary Law

The status of the precautionary principle as a rule of customary law is significant because a rule of customary law creates obligations for all states, except those that have persistently objected to the practice and its legal consequences. The statute of International Court of Justice defines customary international law as ?evidence of general practice accepted as law. The Nicaragua case and the North Sea Continental Shelf case complement this article of the Statute and clarify two requirements of customary international law. According to International Court of Justice, customary international law arises when nations follow a practice in an extensive and virtually uniform manner and this practice is followed with the conviction that it is obligatory to do so under international law (opinio juris). Consequently, the opposition of some states does not interfere with the development of a customary rule.

However, the best indicators of state practice remain the instruments of international law and state domestic law. Currently, the precautionary principle is used in more than 90 international declarations and agreements. In this context, the number of ratifications (the majority of treaties are multilateral) and the number of states signing declarations also reflect broad acceptance of the rule by states. The abundance of treaties and declarations incorporating the precautionary principle provides at least an estimate of state practice and acceptance, which implies that the precautionary principle is crystallizing into a rule of customary environmental law. Another primary indicator of state practice is domestic law. The precautionary principle is widely used in the domestic environmental law of Germany, Belgium and the Nordic countries (Denmark, Norway, Sweden, Finland, and Island). In 1992, the principle became part of National Strategy for Ecologically Sustainable Development in Australia. In 1993, the principle was incorporated into Australia?s Environmental Protection Act. In 1996, the precautionary principle was defined in the Oceans Act of Canada. Even US law makes some indirect allusions to the precautionary principle (as measures) when dealing with questions of food safety and air pollution. Furthermore, as a part of environmental impact assessment, the precautionary principle may be found in the local laws of about fifty countries. These examples illustrate the wide implementation of the procedural aspect of the precautionary principle.

It is clear that the law on sustainable development is gaining momentum at local, national, regional, and international levels. While the four fundamental elements of sustainable development – the precautionary principle, intergenerational and intragenerational equity, the conservation of biological diversity and ecological integrity, and the internalisation of environmental costs – have been much discussed and promulgated in various international and national legal contexts, there is still a long way to go in terms of their implementation.

The role of the judiciary in relation to the law of sustainable development is thus of the greatest importance. As an offshoot of the judicial recognition, the National Environmental Policy adopted precautionary principle as a guiding principle. However, it is still a long way to go before the PP takes its rightful place in Indian environmental laws and even more importantly gets effectively implemented.

Source- Environmental law Book, Lexis Nexsis