Refining the Precautionary Principle in International Environmental Law
By James E. Hickey, Jr. and Venn R. Walker
INTRODUCTION
States have long recognized as a matter of domestic and international law that it is generally preferable to prevent pollution than to deal with pollution after it has occurred. In statutory, regulatory, judicial, and foreign affairs contexts, states have applied preventive measures to a wide range of environmental settings, all without much conscious purpose to articulate a specific principle of law. In 1985 and in 1987, however, parties to the Vienna Convention and the Montreal Protocol formally stated their determination to take “precautionary measures” to prevent emissions of ozone layer depleting substances. Since 1987, other international environmental instruments have increasingly referred to the “precautionary principle, to the “precautionary approach,” or to the “principle of precautionary action” when dealing with regional and global environmental and developmental problems such as marine pollution, water pollution, climate change, ozone layer depletion, hazardous waste, and energy development. References to precaution reveal a variable, vague, and often confusing “principle” for states to follow in preventing pollution.
The assertion and “codification” in international agreements and instruments of an ill-defined, ambiguous “principle” has created uncertainty in international environmental law. Uncertainty exists on several interrelated topics: the legal and practical significance of the principle; the obligations assumed by states; the application of the principle to affected businesses; the relation of the obligation to scientific data; and the future shape and content of such a principle. For the business community, an unpredictable precautionary principle inhibits efficiency and realistic corporate planning, and increases the costs and risks of doing business. For the larger international community, the present precautionary principle impedes the development of rational, coordinated, and predictable environmental law and policy.
States and international organizations have invoked the precautionary principle in an attempt to resolve certain technical problems and political tensions when dealing with international environmental problems. Technically, the precautionary principle responds to the varying degrees of scientific uncertainty and environmental risk by imposing a duty on states to prevent pollution despite a lack of scientific information. Politically, the precautionary principle attempts to address the inherent tension between territorial state sovereignty and the international community's growing need to address certain transnational, regional, and global environmental and developmental problems. States have traditionally accommodated technical problems and political tensions, at least in part, through international instruments such as bilateral and multilateral treaties or international conventions. In general, the greater the certainty of pollution and the greater the potential harm from pollution, the less states tend to resist a requirement to prevent pollution.
In balancing such problems and tensions since 1987, states have begun to refer explicitly to a precautionary principle of international law. If the present precautionary principle is to provide more than platitudinal support for pollution prevention, it must evolve into a refined rule that would adjust to new and evolving factual situations, to more sophisticated norms of international law, and to advances in scientific knowledge. The global community needs a more specific rule of restraint adaptable to a wide range of new environmental circumstances, rather than isolated agreements that share only a general preference for pollution prevention.
The evolution of a set of refined precautionary obligations at regional and global levels will be difficult to achieve. Both states and private actors will resist a precautionary principle that is informative and enforceable by the international community. States naturally want to protect their territorial sovereignty, and private actors understandably seek freedom from regulation. The international community needs to agree to some means to overcome that resistance and to refine the precautionary principle.
This Article suggests criteria to refine the precautionary principle, to remove the present uncertainty, and to provide a measure of needed predictability that presently does not exist. The Article presents a process framework through which states may refine the content of the precautionary principle in a consistent and predictable way. Part II sets out a brief contextual background for the precautionary principle as an emerging term of art in international environmental law. Part III analyzes the present uncertainty in a representative cross section of existing statements of the precautionary principle. Part IV proposes that states adopt an agreed set of criteria for drafting statements of the precautionary principle in future international agreements. If the criteria proposed here are uniformly applied, every articulation of the precautionary principle would contain: (1) a reasonably precise statement of the desired environmental goal and the environmental condition that justifies invoking the precautionary principle; (2) an identification of the jurisdictional scope of the agreed precautionary obligations under the principle; (3) a specification of those human activities for which precautionary measures are required; and (4) a clear statement of the precautionary measures that must be undertaken before engaging in a covered activity.
States have long recognized as a matter of domestic and international law that it is generally preferable to prevent pollution than to deal with pollution after it has occurred. In statutory, regulatory, judicial, and foreign affairs contexts, states have applied preventive measures to a wide range of environmental settings, all without much conscious purpose to articulate a specific principle of law. In 1985 and in 1987, however, parties to the Vienna Convention and the Montreal Protocol formally stated their determination to take “precautionary measures” to prevent emissions of ozone layer depleting substances. Since 1987, other international environmental instruments have increasingly referred to the “precautionary principle, to the “precautionary approach,” or to the “principle of precautionary action” when dealing with regional and global environmental and developmental problems such as marine pollution, water pollution, climate change, ozone layer depletion, hazardous waste, and energy development. References to precaution reveal a variable, vague, and often confusing “principle” for states to follow in preventing pollution.
The assertion and “codification” in international agreements and instruments of an ill-defined, ambiguous “principle” has created uncertainty in international environmental law. Uncertainty exists on several interrelated topics: the legal and practical significance of the principle; the obligations assumed by states; the application of the principle to affected businesses; the relation of the obligation to scientific data; and the future shape and content of such a principle. For the business community, an unpredictable precautionary principle inhibits efficiency and realistic corporate planning, and increases the costs and risks of doing business. For the larger international community, the present precautionary principle impedes the development of rational, coordinated, and predictable environmental law and policy.
States and international organizations have invoked the precautionary principle in an attempt to resolve certain technical problems and political tensions when dealing with international environmental problems. Technically, the precautionary principle responds to the varying degrees of scientific uncertainty and environmental risk by imposing a duty on states to prevent pollution despite a lack of scientific information. Politically, the precautionary principle attempts to address the inherent tension between territorial state sovereignty and the international community's growing need to address certain transnational, regional, and global environmental and developmental problems. States have traditionally accommodated technical problems and political tensions, at least in part, through international instruments such as bilateral and multilateral treaties or international conventions. In general, the greater the certainty of pollution and the greater the potential harm from pollution, the less states tend to resist a requirement to prevent pollution.
In balancing such problems and tensions since 1987, states have begun to refer explicitly to a precautionary principle of international law. If the present precautionary principle is to provide more than platitudinal support for pollution prevention, it must evolve into a refined rule that would adjust to new and evolving factual situations, to more sophisticated norms of international law, and to advances in scientific knowledge. The global community needs a more specific rule of restraint adaptable to a wide range of new environmental circumstances, rather than isolated agreements that share only a general preference for pollution prevention.
The evolution of a set of refined precautionary obligations at regional and global levels will be difficult to achieve. Both states and private actors will resist a precautionary principle that is informative and enforceable by the international community. States naturally want to protect their territorial sovereignty, and private actors understandably seek freedom from regulation. The international community needs to agree to some means to overcome that resistance and to refine the precautionary principle.
This Article suggests criteria to refine the precautionary principle, to remove the present uncertainty, and to provide a measure of needed predictability that presently does not exist. The Article presents a process framework through which states may refine the content of the precautionary principle in a consistent and predictable way. Part II sets out a brief contextual background for the precautionary principle as an emerging term of art in international environmental law. Part III analyzes the present uncertainty in a representative cross section of existing statements of the precautionary principle. Part IV proposes that states adopt an agreed set of criteria for drafting statements of the precautionary principle in future international agreements. If the criteria proposed here are uniformly applied, every articulation of the precautionary principle would contain: (1) a reasonably precise statement of the desired environmental goal and the environmental condition that justifies invoking the precautionary principle; (2) an identification of the jurisdictional scope of the agreed precautionary obligations under the principle; (3) a specification of those human activities for which precautionary measures are required; and (4) a clear statement of the precautionary measures that must be undertaken before engaging in a covered activity.
