(This is a law school paper, by Jeffrey Weiss, San Diego, California, improved after the course and submitted to me around 04/01. He emphasized that new rulings appear every month, so that it should not be regarded as updated after that.)

I. Introduction

The precautionary principle embodies the notion; rather than await scientific certainty, regulators should act in anticipation of environmental harm to ensure that this harm does not occur. In just the last year, the precautionary principle has significantly impacted international environmental agreements, World Trade Organization rulings, and European Union case law. In light of the recent changes concerning the precautionary principle, it has emerged as one of the major forces affecting international environmental law.

This paper examines the status of the precautionary principle in modern international environmental law. Part II provides a definition of the precautionary principle, and an analysis of the changes to the principle through its incorporation in international environmental agreements. Part III highlights criticisms of the precautionary principle, most notably the principleís economic effects on free trade. Part IV demonstrates the current status of the precautionary principle in international law by analyzing World Trade Organization Agreements, specifically the Sanitary and Phytosanitary Measure Article 5.7 that has adopted the principle. Part V demonstrates the vital role the European Union has played, in making decision makers aware of the principle through World Trade Organization rulings and European Union case law. Finally, Part VI concludes by encouraging the expansion of the principle in international environmental law.

II. Defining the Precautionary Principle

The precautionary principle largely emerged as a result of the increased awareness of the need for sustainable development. The sustainable development goal can be seen as early as 1976, when Judge Weeramanty, in the Gabcikovo-Nagymaros case, saw precautionary measures as a part of the wider legal principle of sustainable development. The precautionary principle fosters the sustainable development goal by preserving the environment by bringing the types and levels of production and consumption on a global level into line with the finite ability of the earth to sustain them. Without such an approach, an activity or substance might have an irreversible impact on the environment while scientists determine its precise effects.

The precautionary principle covers a wide range of possible obligations and actions. In its weakest formation it would be difficult to distinguish from the preventive principle. The preventive principle imposes an obligation on states to prevent known or foreseeable harm outside their territory. An example of the preventive principle can be seen in the June 2000 World Trade Organization ruling that upholds the French ban on asbestos. Remi Parmentier, head of the political unit for Greenpeace International stated, "When speaking of asbestos we are not talking about scientific uncertainties, clearly everyone knows it is harmful to human health." Thus, the preventive principle is concerned with the prevention of harms and risks which are known, which have been scientifically proven, and which can be reasonably avoided. The basic tenet, which distinguishes the precautionary principle from the preventative principle, is that positive action to protect the environment may be required before scientific proof of harm has been provided. In its strongest formulation, the precautionary principle can be seen as a reversal of the normal burden of proof, so that potential actors must prove their activity will not cause harm before it can be sanctioned.

Under the precautionary principle doctrine emphasis is placed on: 1) the vulnerability of the environment; 2) the limitations of science to accurately predict threats to the environment; 3) the availability of alternatives; and 4) the need for long-term economic considerations.

The principle has a lot of substance that tends to get overlooked. For example, the principle does more than just prohibit projects wherever there is uncertainty. Rather, the principle requires greater weight be given to environmental and public health protection where there is insufficient scientific information available upon which to base decisions.

There are two types of precautionary principle found in international agreements. All versions of the principle offer guidance on how to respond when there is some evidence, but not proof, that a practice is damaging the environment. One version of the principle calls for action to be taken against the practice that may be causing environmental damage. This type can be termed the action-guiding version of the principle, and is most often found in agreements dealing with marine pollution. An example of this version of the principle is evident in the 1989 report of the Nordic Councilís International Conference on Pollution of the Seas. The report calls for an effective precautionary approach with the principle intended to safeguard the marine ecosystem by eliminating and preventing pollution emissions where there is reason to believe the harmful effects are likely to be caused even with inconclusive scientific evidence to prove a causal link between emissions and effects. The other version of the precautionary principle stipulates the fact that it is uncertain whether a practice is causing environmental harm should not be used as a reason for not taking action against that practice. This version is termed deliberation-guiding because it does not call directly for action; rather it restricts what can be considered as a reason for inaction. Examples of the deliberation-guiding version are found in more general environmental agreements such as Principle 15 of the Rio Declaration on Environment and Development. Principle 15 states that 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. The action-guiding version of the principle requires that something be done in response to the threat while the deliberation-guiding version does not.

Despite the slight variations in the definition of the precautionary principle it is emerging as a customary norm in international law. A customary norm is defined as a state practice or belief that a certain practice is obligatory as a matter of law. Harold Hohman developed a test to determine whether a soft law rule can be deemed a customary rule. One can argue that when the precautionary principle is applied to the test it can be seen as a rule of customary international law. The customary rule test states that the rule must be repeated and specified in subsequent agreements, it must not be regional only, it can not objected to by a majority of states, and the rule should move from a loose writing of the law to a tighter formulation over time. When the precautionary principle is applied to customary rule test, it reveals the principle has been repeated in virtually all-subsequent agreements. The principle is not "only regional" as evidenced by the numerous global agreements that adopt the principle. A majority of states accept the principle as evidenced by the Cartagena Protocol where all 135 countries agreed to endorse the new rules. The language of the principle has moved to a tighter formulation as demonstrated in the language from the 1992 Convention on Climate Change using the term states "should" to the use of the term states "shall" in the Rio Declaration. The tightening of the language provides some assurance that states are negotiating carefully because they expect legal consequences to flow from one formulation to another.

The first formally adopted use of the precautionary principle in an international setting was the 1987 Second International Conference on the Protection of the North Sea. The Ministerial Declaration of the Second International Conference on the Protection of the North Sea (1987) states that "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 clear scientific evidence." Subsequently, the United Nations Framework Convention on Climate Change (1992) signed by 154 states, adopted precautionary language. The 1992 convention stated that the parties should take precautionary measures to anticipate, prevent, or minimize the causes of climate change and mitigate its adverse effects. It further stated that where there threats of serious irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures. Although there are other examples of the precautionary principle in international documents, the Rio Declaration on Environment and Development contains what may be the strongest use of the principle. The Rio Declaration provides: "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 of irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." Unlike the Climate Conventionís use of the term should, the Rio Declaration contains the term shall. Commentators believe this variation reveals a conscious decision on the part of the Rio Declaration drafters to add a more substantial, obligatory standard for nations to follow in crafting environmental legislation.

The recent Cartagena Protocol on Biosafety demonstrates the force of the principle in modern international environmental law. On January 29, 2000 all 135 countries participating in talks on a biosafety protocol agreed to endorse new rules regulating the transboundry movement of genetically modified organisms ("GMO"). The new rules were spelled out in the 22-page Cartagena Protocol on Biosafety to the Convention on Biological Diversity. The new Protocol allows for transboundry export and import under the oversight of the precautionary principle. The Protocol marks the first time the precautionary principle was enshrined in an international treatyís operative provisions.

Under Article 10 of the Protocol, a country can reject the import of a GMO despite "lack of scientific certainty." This is a clear indication of the precautionary principle guiding the Protocol. The Protocol contains in its preamble a "savings clause," which expressly states that the parties intention that the Protocol not alter existing rights and obligations, including those under the WTO Agreements. Two political statements accompany the "savings clause." The first recognizes "that trade and environment agreements should be mutually supportive with a view to achieving sustainable development." The second states that the "savings clause" is not intended to subordinate this Protocol to other international agreements. The second statement of the "savings clause" means that the protocol shall not impose rights and obligations of a party under any existing international agreement.

The United States Undersecretary for Global Affairs, Frank Loy, who was head of the U.S. delegation, said the Cartagena Protocol agreement would benefit the United States. However, Loy also stated, the Protocol will add the dimension of science-based risk assessment to any such determination. The statement by Loy indicates the U.S. desire not to be bound by precautionary measures unless there is a science-based assessment of risk. The United States was not a party to the Convention on Biological Diversity and therefore can not currently become a party to the Protocol.

III. Criticisms of the Precautionary Principle

The precautionary principle is not without criticism. One such criticism is that use of the principle is damaging to science and society. This damage derives from scientific uncertainty rather than normal verified hypothesis of cause and effect, becoming the basis for policy. One opponent to scientific uncertainty as a basis of policy points out that a strong precautionary principle would have slowed down major innovations of the twentieth century such as, nuclear fission, lasers, jet engines, contact lenses, and antibiotics, etc.

Another criticism of giving greater weight to policy based on scientific uncertainty is that in practice, scientific uncertainty alone can not prevent depletion of natural resources, especially when such consumption can alleviate present human needs and suffering.

Perhaps the biggest criticism of the precautionary principle is that it is a form of disguised protectionism. Some, including the United States, feel countries protect local markets from trade by using the precautionary principle. This fear of protectionism is evident in a statement by David Aaron, United States undersecretary of commerce for international trade, when he said, "the principle is being used as a form of protectionism to prevent U.S. beef from entering the European Union." He further stated, "There is not one cough, not one sneeze, not one headache, not one rash, attributed to biotechnology products, and concern over biotechnology in Europe is hysteria."

IV. WTO Agreements

The purpose of the WTO is to provide rules governing the orderly conduct of trade and a peaceful, effective dispute resolution mechanism. The importance of WTO rulings in regards to the precautionary principle is that they are binding on the Member countries. The WTO preamble states, "the parties to this agreement. . . recognizing that their relations in the field of trade. . . while allowing for the optimal use of the worldís resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so consistent with their respective needs and concerns at different levels of economic development. The preamble language that states, "consistent with their respective needs and concerns," suggests each member of the WTO has the independent right to determine the level of environmental or health protection they consider appropriate. Consequently, a Member may apply the precautionary principle, which will lead to a higher level of protection than that provided for in the relevant international standards.

The Agreement on the application of Sanitary and Phytosanitary Measures ("SPS"), which is part of the organic law of the WTO, approves the use of the precautionary principle, although the term is not explicitly used in the WTO Agreement. The general rule is that all SPS measures must be based on scientific principles and that they should not be maintained without scientific evidence. Despite the general rule, a derogation from these principles is provided in Article 5.7. Article 5.7 of the SPS provision states, "in cases where relevant scientific evidence is insufficient, a government may provisionally adopt SPS measures on the basis of available pertinent information. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the SPS measure accordingly within a reasonable period of time. The use of the term "more objective assessment of risk" in Article 5.7 infers that the precautionary principle may be based on a less objective appraisal but must never the less include an evaluation of risk. This interpretation of risk has been confirmed by the WTOís Appellate body in the case of Beef Hormones.

In Beef Hormones the United States and Canada argued that the European Unionís ban on the import of beef from cattle treated with growth hormones was an unjustifiable restriction on trade. The United States and Canada said it was an effort to protect European beef farmers rather than a legitimate precautionary measure. The European Union argued the precautionary principle entitled the European Union to ban the hormone treated beef. In the Beef Hormones dispute, the European Commission chose not to invoke Article 5.7 as a defense. Instead, it relied on the precautionary principle characterizing the principle as a rule of customary international law. The European Union lost the Beef Hormones dispute at the WTO Appellate but is still banning import of the hormone treated beef under the precautionary principle.

Despite the ruling against the European Union and the use of the precautionary principle as a defense, the WTO Appellate Body on Hormones recognizes "that there is no need to assume that Article 5.7 exhausts the relevance of the precautionary principle." Moreover, Members have the right to establish their own level of sanitary protection, which may be more cautious than the existing international standards.

Similar to the Beef Hormones dispute is the Japanese Varietals case. In the Japanese varietals dispute before the WTO Appellate body, Japan defended its actions as precautionary measures because of the lack of scientific evidence. Japan is banning fruit imports claiming fears of coddling moth infestation. The WTO Appellate Body on the Japan dispute effecting agricultural products clarifies four requirements, which must be met to in order to adopt and maintain a provisional SPS measure. A Member may adopt an SPS measure if this measure is: 1) imposed in respect of a situation where relevant scientific information is insufficient; and 2) adopted on the basis of available pertinent information. Such a provisional measure may not be maintained unless the Member, which adopted the measure: 1) seeks to obtain additional information necessary for a more objective risk assessment; and 2) reviews the measure accordingly within a reasonable period of time.

As of April 2000, the WTO Appellate body has handed down three SPS judgments all defended by the countries imposing precautionary measures. The discouraging news for precautionary principle advocates is that, in all three cases, the defendant government employing the SPS measure lost. At the heart of the debate are the requirements in the SPS measures that states sound science be the basis for regulation. Opponents claim that the sound science requirement prevents countries from using the precautionary principle as the basis of regulation. In negotiating the WTO Agreements, the Member countries recognized the need for an objective standard to determine when a measure creates an unjustifiable burden on trade. The Members adopted the sound science requirement as that objective standard. Specifically, the SPS Agreement requires that a measure be applied only to the extent necessary to protect human, animal, or plant life and health.

In spite of the unfavorable rulings by the WTO Appellate, the Appellate did recognize that the SPS Agreement allows a Member to act in a precautionary manner in the absence of sufficient science but requires that Member to seek to obtain the science. The WTO Panel and Appellate Body Reports in Beef Hormones affirmed the right of each country to determine its own level of acceptable risk.

The status of the precautionary principle in light of the WTO rulings appears to be a weakened version of the principle. The rulings state that precautionary measures can be imposed but the state imposing the measure must seek a scientific basis for keeping the precautionary measure. Also, the state must seek a scientific based risk assessment within a reasonable period of time. Moreover, the WTO decision does not call for a reversal of the "burden of proof." This means that countries imposing precautionary measures must demonstrate there is a sound scientific justification allowing them to keep the measures imposed.

Where the WTO rulings are flawed is that they confused the right of a nation to determine its own acceptable level of known risk with the right of a nation to avoid the possibility of risk altogether when the degree of risk involved is uncertain. Furthermore, they do not address the possibility of environmental cliffs. The problem with the SPS Agreement requirement is that science never provides absolute certainty because global environmental interactions are neither linear nor balanced. For example, continued human activity may cause the death of a steady number of individual animals without threatening the survival of that species, but without warning, a single more death may lead to the extinction of the species. In other words, the environmental effect of an activity does not become apparent until irreversible effects result before scientific evidence exists to prove the harmfulness of the activity. In light of the WTO Appellate body decision concerning sound science as the basis, is the continued threat of environmental cliffs.

IV. The European Union

The European Union has been the strongest advocate for giving greater weight to the precautionary principle. This is evident in their decision to use the precautionary principle as a defense in the Beef Hormones case and case law incorporating the precautionary principle.

The Maastricht Treaty of February 7, 1992, established the European Community by establishing a common market and monetary union. Under the Treaty, environmental protection is one of the fundamental objectives. This objective is addressed throughout the Treaty, but Article 130r specifically promotes measures aimed at environmental protection at the international level. The precautionary principle is added to the list of principles, under the Maastricht Treaty, that are to be integrated into a definition and implementation of other Community policies. The effort to find an acceptable definition within the European Community has recently been reached.

On February 2, 2000 the European Commission published its long awaited proposed definition of the precautionary principle under which risk managers would use a nonbiased approach when evaluating environmental risks. The Commission proposal states that when "action is deemed necessary to employ the precautionary principle, measures should be proportionate to the chosen level of protection, non-discriminatory in their application and consistent with similar measures already taken." "They should also be based on an examination of the potential benefits and costs of action or lack of action and subject to review in light of new scientific data and should thus be maintained as long as the scientific data remain incomplete." The Commission also said that the use of the precautionary principle could be employed to assign responsibility or the burden of proof for producing the scientific evidence necessary for a comprehensive risk assessment.

After the European Environment Commission released the precautionary principle proposal the United States Department of Agriculture and the Federal Drug Administration, charged that it lacks a definition. The United States stated that a definition is to be formulated over time by courts and policymakers. The U.S. agencies also said the Commission proposal wrongly asserts that the precautionary principle is "enshrined" in various international conventions, such as Agenda 21 from the United Nations Conference for Environment and Development in Rio de Janeiro in 1992.

The United States is very cautious when it comes to the possible implications of the precautionary principle. The cautious U.S. position concerning the precautionary principle demonstrates Hohmannís customary rule test may be accurate. Hohmann stated that soft law may be seen as customary law when policy makers expect legal consequences to flow from their actions.

The United States generally agrees with the European Union that environmental concerns should be incorporated into trading rules, but departs from the European Union position on two critical points. First, the United States asserts that WTO Members must maintain the ability to take science-based measures to protect the environment. Second, the United States has expressed concern that the European Union proposal encourages a misused form of protectionism. The issue of the precautionary principle, as a form of protectionism has caused considerable controversy between the European Union and the United States, especially since it is the basis of the European Unionís continued ban on United Stares hormone-treated beef.

The precautionary principle within the European Union is evident in their case law. The Court of Justice of the European Communities and the Court of First Instance have reviewed the application of the precautionary principle in cases and thus have developed case law in this area.

The environmental protection objective of the Maastricht Treaty is evident in a February 3, 1998 opinion of the European Court of Justice. The opinion regards whether Article 5 of the Council Regulation of December 15, 1994 absolutely prohibits the release of substances that deplete the ozone layer. The Court opinion interprets Article 5 in light of Article 130r of the European Community Treaty. In the Courtís opinion regarding the importance of Article 130r the court stated, under the Maastricht Treaty, protection of the environment is a priority. The Court further stated that the words in the Communityís policy on environmental protection must be strictly adhered to since the function of that policy is to "aim at a high level of environmental protection."

On December 29, 1999, France brought an action against the Commission of the European Communities alleging that the Commission has infringed on the precautionary principle as established by the Treaty and the case law of the Court. France claims the ban on United Kingdom beef is justified citing to the precautionary principle stating because of scientific uncertainties they were allowed to ban the beef. A year before this court action, the European Union Council of Ministers agreed to lift the ban after United Kingdom farmersí implemented measures to prevent spread of the disease. The implementation measures taken by the U.K. farmers is evidence of the burden of proof switching to the polluter. The burden of proof switching to the polluter to show their actions do not harm is the strongest version of the precautionary principle. Despite the measures taken by the U.K. farmers the French still banned the beef.

In its judgment on the French ban, the court held: "where there is uncertainty as to the extent of risks to human health, institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent." Just three months after France successfully defended its beef ban citing to the precautionary principle, Ireland was fined for failing to abide by precautionary measures.

In an action brought March 27, 2000 to the European Union Court of Justice, Ireland was forced to pay costs for failure to preserve sufficient diversity for the habitat of the Red Grouse. The Red Grouse is one of the twelve most threatened breeding bird species in Ireland. The Red Grouse depends on heather, a plant that Irish farmers have let their sheep overgraze. The court stated that the decline in the range of the Red Grouse and the failure to abide by precautionary measures, Ireland has failed to meet its obligations to safeguard a sufficient habitat.

V. Why adopt the Precautionary Principle

The problems associated with the treatment of scientific uncertainty in the environmental context underlie the reasons why the precautionary principle needs to be further adopted in international law. When scientific uncertainty is not used as a basis for policy-making it maintains the status quo. The same status quo that has led to rapid depletion of the earthís resources, ozone depletion, and the unknown affects global warming may yet produce. Scientific uncertainty becomes more of a problem when it is institutionalized in policy-decisions. This is because scientists may modify scientific models when more information is available, but government agencies and decision-makers must make choices based on existing scientific knowledge. Policy-makers should also ensure that a decision concerning consumption of resources is an informed decision. Informed decision means knowledge that the resource that is to be consumed must be monitored in the future to detect adverse impacts.

The analysis criticizing that strong adherence to the precautionary principle would slow down technology innovations is probably correct. Although, the analysis may be correct, it does not weigh the gains in technology against the costs of environmental and health damage. The greater technological innovations that can be achieved when driven by "what makes economic sense" may be inadequate when weighed against environmental degradation.