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Precautionary Principle

The essence of the precautionary principle is that States should act to prevent environmental damage without waiting for definitive scientific proof regarding causation. Principle 15 of the Rio Declaration states this principle as follows:

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.

The UNFCCC adopts a similar phrasing of the principle in Article 3(3), albeit in greater detail:

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.

At COP 18, in the decision regarding loss and damage that climate change causes to developing countries, the parties underlined that “the lack of full scientific certainty should not be used as reason for postponing action.” They also decided to establish, at COP 19, institutional arrangements to address loss and damage from climate change in developing countries that are particularly vulnerable to its adverse effects.[1] While this does not create an obligation to compensate vulnerable developing countries for the damage caused by climate change, it is an interesting development nevertheless, since it raises the sensitive issue of liability for damage caused by climate change. However, it would be difficult to allocate responsibility for damage caused by climate change, due to the complexity of proving causation.[2]

In the Gabcikovo-Nagymaros case, Hungary argued that the previously existing obligation not to cause substantive damage to the territory of another State had evolved into a general obligation of prevention of damage pursuant to the “precautionary principle,” and that this precluded performance of its treaty with Slovakia. Slovakia argued that no intervening developments in environmental law gave rise to norms that would override the treaty.[3] The ICJ rejected Hungary’s argument. The Court found that the Treaty could be terminated only on the limited grounds enumerated in the Vienna Convention, none of which existed in this case.[4] It pointed out that the parties could agree to incorporate newly developed norms of environmental law under the treaty provisions that require them to ensure that the quality of water in the Danube is not impaired and that nature is protected, and to take new environmental norms into consideration during implementation. These evolving provisions recognized the potential necessity to adapt the project and left the treaty open to adapt to emerging norms of international law, through a process of consultation and negotiation. The Court noted the importance of engaging in this process in good faith, in order to address potential environmental risks on a continuous basis. The Court also noted that both parties agreed on the need to take environmental concerns seriously and to take the required precautionary measures. However, they could not agree on the consequences this had for their joint project. The Court suggested third-party involvement to help them to reach an agree- ment.[5] Thus, in this case, the ICJ did not determine whether the precautionary principle had evolved into a rule of customary international law. Instead, it indicated that the treaty permitted the incorporation of new environmental norms. Thus, this case merely confirms that parties to a treaty are free to incorporate new (environmental) provisions by mutual agreement. The precautionary principle cannot be invoked to excuse performance of a treaty or to terminate a treaty, unless of course the treaty says so.

In ECHormones, the WTO Appellate Body also rejected the precautionary principle as a defense, this time under the WTO Agreement on the Application of

Sanitary and Phytosanitary Measures (the SPS Agreement). It observed that the status of the precautionary principle in international law is the subject of debate among academics, law practitioners, regulators, and judges. It noted that the precautionary principle is regarded by some as having crystallized into a general principle of customary international environmental law, but whether it has been widely accepted as a principle of general or customary international law appears less than clear. It stated that the status of the precautionary principle in international law, at least outside the field of international environmental law, still awaits authoritative formulation.[6] However, it did not explain how a norm could qualify as customary international environmental law and yet not form part of customary international law. Article 38 of the Statute of the International Court of Justice refers to “international custom, as evidence of a general practice accepted as law.” Accepting that a norm could crystallize as international custom in just one area of public international law, without doing so in general, would promote the fragmentation of international law and increase the difficulty of ensuring coherence between different areas of international law. With respect to climate change, it is especially important to maintain coherence between international economic law and international environmental law. Indeed, the general acceptance of the concept of sustainable development in both fields is consistent with an intention to avoid divergence in the development of norms.

The EC—Hormones case, like the Gabcikovo-Nagymaros case, confirms that the effect of the precautionary principle on a treaty depends on the specific treaty language. The Appellate Body found that the more concrete formulation of aspects of the precautionary principle found in the SPS Agreement provided a more solid basis for the Appellate Body to make its ruling than the defense that the EC put forward based on the precautionary principle itself. In this regard, the Appellate Body noted that the principle has not been written into the SPS Agreement as a ground for justifying SPS measures that are otherwise inconsistent with the obligations of Members set out in specific provisions of that agreement. While it is reflected also in the sixth paragraph of the preamble, the precautionary principle does not, by itself, prevent applying the normal principles of treaty interpretation to the provisions of the SPS Agreement.[7] However, in determining whether a measure was maintained without sufficient scientific evidence, the Appellate Body said that a panel should bear in mind “that responsible, representative governments commonly act from perspectives of prudence and precaution where risks of irreversible, e.g. life-terminating, damage to human health are concerned.”[8]

This approach of the Appellate Body is consistent with the view that the leeway that a treaty interpreter has depends on the degree of ambiguity in the provision in question.[9] However, this view is not limited to international environmental law or international health law. Nor should one read too much into the Appellate Body’s observation regarding how responsible governments behave. In the case of climate change, due to the length of time that GHGs remain in the atmosphere, there is a risk of irreversible damage to the environment (at least in the short to medium term), with serious increases in the risks to human health from diseases, malnutrition, and severe weather events. However, this is not sufficient to permit the precautionary principle to influence the interpretation and application of a treaty in the absence of a specific provision that provides greater guidance. As with treaty interpretation in general, the result also depends on the degree of ambiguity in the provision itself. Even if the precautionary principle achieves the status of customary international law, that would only be sufficient for it to influence treaty interpretation as a relevant rule of international law applicable in the relations between the parties, not to override clear treaty provisions. Thus, while the precautionary principle might be used to persuade countries that they should reach international agreements to address effectively the risks from climate change, it is far less important than the actual terms of those agreements.

Nevertheless, the precautionary principle may serve as an additional argument to justify unilateral and multilateral measures taken to mitigate or adapt to climate change measures based on limited or insufficient scientific proof, both in WTO law and in international investment law. In both areas of international economic law, it would be relevant to arguments regarding the nature of the measure. In the case of international investment law, it could support an argument that the measure relates to environmental protection, not investment, and is not subject to the provisions of the international investment agreement. In the case of WTO law, it could be used to support the same argument, that the measure is an environmental measure, and that any discrimination is neither arbitrary nor unjustifiable. These issues will be analyzed in more detail in Chapters 3 and 5.

  • [1] Draft decision 3/CP.18, Approaches to address loss and damage associated with climate changeimpacts in developing countries that are particularly vulnerable to the adverse effects ofclimate change toenhance adaptive capacity, December 8,2012, Preamble, para. 9, Reportofthe Conference ofthe Partieson its eighteenth session, held in Doha from 26 November to 8 December 2012, Addendum, Part Two:Action taken by the Conference of the Parties at its eighteenth session (Advance version) (accessed April 4, 2013).
  • [2] See e.g. TrailSmelter Case (UnitedStates v. Canada) 3 RIAA 1905 (1941); Michael Bowman andAlan Boyle (eds.), EnvironmentalDamage in International and Comparative Law: Problems of Definitionand Valuation (Oxford University Press, Oxford 2002).
  • [3] Gabcikovo-Nagymaros Project (Hungary v. Slovakia) (1997) para. 97.
  • [4] Gabcikovo-Nagymaros Project (Hungary v. Slovakia) (1997) para. 100.
  • [5] Gabcikovo-Nagymaros Project (Hungary v. Slovakia) (1997) paras. 111—15.
  • [6] Appellate Body Report, European Communities—Measures Concerning Meat and Meat Products(Hormones) (EC—Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted February 13, 1998,para. 123.
  • [7] Appellate Body Report, EC—Hormones para. 124.
  • [8] Appellate Body Report, EC——Hormones para. 124.
  • [9] Bradly J. Condon, Environmental Sovereignty and the WTO: Trade Sanctions and InternationalLaw (Transnational Publishers, Ardsley 2006) 276—82.
 
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