Precautionary Principle in EU Environmental Law - Article Example

Precautionary principle in EU Environmental law Much has been said in the past about the precautionary principle and up until now, there are still ongoing discussions about the implications of this principle both in the international community and the European Community. To understand better the evolution of this principle, let us first look into the chronicle of its emergence both in the EC and the international community. The precautionary principle was first endorsed internationally when it was incorporated in the World Charter for Nature which was adopted by the UN General Assembly in 19821. Subsequently, the precautionary principle was incorporated into a number of international conventions where it was cited to a great length in the 1992 Rio Declaration on Environment and Development. Principle 15 of the Rio declaration states that "in order to protect the environment, the precautionary approach shall be widely applied by States according to their capability. 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".2 In 1990, the Third International Conference on the Protection of the North Sea defined the precautionary principle as the obligation "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 emissions and effects.” Clearly, the precautionary principle is geared towards prevention of harm not only upon the environment but also of the people who will be affected by the degradation of the environment. According to Cameron J et al., the precautionary principle could well be the “fundamental principle of environmental protection policy and law”.3 On the other hand, Sands see this principle as the norm which defines “customary international law.”4 Technically, the precautionary principle is about prevention and instead of curing the effects of environmental hazards. Moreover, this principle addresses the uncertainties of the future in terms of environmental impacts. As Weiner JB puts it, this principle “aspires to answer a timeless question: how should society in general and regulatory authorities in particular, respond to uncertain risks?”5 On the other hand, Sands6 listed at least four elements of the precautionary principle namely the inter-generational equity which was expounded in a case decided by the Supreme Court of the Philippines, Oposa et. Al v Fulgencio S. Factoran, Jr. et al (1993)7, the prudent use of resources, the equitable use of resources8 and the integration in all policy areas. In the European Union, the precautionary principle is considered as the foundation of EU environmental law and policy-making. This principle is set forth in the Maastricht Treaty of 1992 and then later on incorporated in Article 174 of the EC Treaty which states “Community policy on the environment shall be based on the precautionary principle and on the principle that preventive action should be taken, that environmental damage should as a priority be rectified at the source and that the polluter should pay.” Unfortunately, Article 174 of the EC Treaty did not define what the precautionary principle is. It simply stated the principle in the provision as if it is a well established principle of law that could be applied universally without defining its parameters for application. Although this principle have been established in the German “vorsorgeprinzip”9, there is still much to be interpreted in terms of the application thereof in the entire European community. Despite the rapid acceptance of the precautionary principle the EU, confusion ensues as to its meaning and interpretation. Technically, there is no official EU definition of the precautionary principle.10 The problem with this principle is that the proponents thereof have articulated it is an abstract fashion and they have neglected and even failed analyze the impacts of their proposals.11 As a result of the failure to substantiate the proposals for the adoption of the principle in domestic law, the principle remains only a concept that provides few guidelines for policy makers12. In fact, there is still an ongoing debate as to whether or not the precautionary principle is indeed as widely established principle. In the international community, there is still a question as to this is indeed a principle or just a movement or approach to a given situation13. In a report submitted by Kourilsky P., Viney G (1999) to the Prime Minister they concluded that “the precautionary principle is not a binding rule of international customary law”14 even though there have been several versions of this principle which is integrated into a number of international law instruments.15 The same observations were echoed by an OECD Working group which noted that, “no international consensus [exist] on what is and when and how it should be applied in the risk analysis of genetically engineered organisms… The relationship between the precautionary approach and sound science is also a matter of current debate.”16 In what ways does the EU seek to give effect to the precautionary rule without a clear interpretation or definition of what it is all about? Since Article 174 does not define precautionary principle, there are two major thoughts on how it should be applied. First, the precautionary principle applies when there is uncertainty17 and second, it applies when harm will be caused18. The first application runs with the triple negative approach which goes “not having scientific certainty is not a justification for not regulating”19 which can be best exemplified by the Rio Declaration and the Cartagena Protocol on Biosafety20. Both of these international instruments provide as follows: “Where there are threats of serious or reversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”21 Although this definition is in line with sound environment policy as espoused by the EU, this does not really give much help in interpreting the principle itself. In the case of the Cartagena protocol on biosafety, there is an ongoing discussion as to the binding effects of the precautionary principle and how this principle could affect the future trends in biosafety especially in the areas of genetically modified organisms. In fact, there are many sectors that are challenging this principle as it may curtail the progress of some research undertakings22. On the other hand, the second approach to the application of the principle can very well be seen in the definition offered by the United Nations Environment Program which says “If an activity or substance carries a significant risk of environmental damage, it should either not proceed or be used, or should be adopted at only the minimum essential level and with maximum practicable safeguards.”23 However, according to Morris J (1998) 24, this definition is still not enough to provide guidance. In an attempt to address the lack of guidance on this subject, the Commission’s Communication on the Precautionary Principle and Submissions to the WTO Trade and Environment and Technical Trade Barriers Committees made an effort to set parameters on the application of the principle by saying that it “covers those specific circumstances where scientific evidence is insufficient, inconclusive or uncertain and there are indications through preliminary objective scientific evaluation that there are reasonable grounds for concern that the potentially dangerous effects on the environment, human, animal or plant health may be inconsistent with the chose level of protection.”25 Although there have been valiant efforts to define and apply the precautionary principle in the EU, decisions in the cases involving this principle which had been brought to the courts had not really been quite promising so far. Although the English Courts have been very receptive of the precautionary principle, they have not been really willing to accept and apply this principle as a justification for substantive and intensive review26. In fact, most cases decided by the Courts only regard this principle as a guide for legislations and policy-making. The case of R v Secretary of State for Trade and Industry ex parte Duddridge and Others (1996)27 is one of the very first cases tried in court involving the precautionary principle. The issue in this case was whether or not the Secretary of State for Trade and Industry was indeed bound under the law to protect residents who are living within the vicinity of high voltage power lines from possible hazardous effects of low magnetic fields. The complainants in this case relied on the binding effects of the precautionary principle. In deciding the case, the court took in the provisions of Article 130(r) of the EC Law and concluded that “in accepting the provisions of Article 130(r), a member State has not done more than to indicate in advance its consent inn principle to the formulation of a policy governed by the objectives there stated.”28 Smith J recognizes the existences of the precautionary principle in International, Community and domestic policy but as it is, he could not find any provisions of the laws that confer this principle “more status than as a guide to policy objectives”.29 Technically, the court here manifested that the existence of the precautionary principle in English law is but a mere guide to policy making and that where there is no policy enacted to that effect, the principle shall remain to be without much force. As manifested by the reluctance of the court to delve deeper into the idea of precaution as a justiciable cause, the precautionary principle was not considered as a binding law. The justification of the precautionary principle as a binding principle of law was again challenged in the case of R. v Environmental Agency , ex parte Dockgrange Limited and Another (1997)30, which involves the interpretation of the European Regulation No. 259/93 on the shipment of waste. The Environment Agency raised the issue of the precautionary principle but such assertions of the Environment Agency were later on dismissed by the Court. Carnwath J. in the decision of this case accepted the precautionary principle as an aid to the interpretation of the disputed regulation as this principle is a guide for policy-making. However, in this case Carnwath J explained that the precautionary principle is inapplicable. He argued that although the precautionary principle favors more restrictive approach where there uncertainty, where the facts are know as in the case at bar, the precautionary principle is then inapplicable. On the other hand, the case of R v Derbyshire County Council (2000)31, gave a more stringent interpretation of the precautionary principle. This case involved a judicial review of the decision of the local authority to extend a landfill site. Invoking the precautionary principle, the resident of the place argued that it is incumbent upon the Council to comply with the principles laid down under article 174 of the EC Treaty. In deciding the case, Justice Kay said that the precautionary principle is a guide for policy-making therefore it is already embodied in the “Waste Framework Directive and the regulations that transposed the directive into domestic law.” 32 Given these decisions of the court, we can conclude that although the courts have accepted the precautionary principle as part of the basis of the laws of the land, it still cannot accept this principle as a justiciable cause that can be acted upon in isolation. The acceptance of this principle as a binding law can only be considered to the extent that it aids in the interpretation of disputed regulations33. Note that in the case of R (on the application of Amvac Chemical UK Ltd) v Secretary of State for Environment, Food and Rural Affairs and Others (2001)34, the court displayed a more open attitude towards a wider acceptance of precautionary principle in relation to regulatory challenges in the future. Note that in this case, Crane J intimated that “it may in some cases be relevant to take into account the precautionary principle, and more important, its limitations.”35 If we take the words of Crane J as a promise of the Courts for future inclusion of the precautionary principle as aid in deciding cases involving regulatory disputes, then there is indeed a brighter prospect for the principle to be widely accepted as an isolated justiciable ground. However, unless there is a clear ruling of the court on how the precautionary principle should be interpreted and used as a guide in deciding cases involving the environment, we cannot really truly say that this principle has a binding effect of law. Note that at the moment, the most that we can get out of the decisions of the court regarding this subject is that it is to be interpreted as a guiding principle and not as a justiciable cause which can be taken in isolation with other causes. On the other hand, although the decisions of the English Courts may feature the reluctance of the Court when it comes to adopting the precautionary principle as something that can be justiciable in isolation from other causes36, there are already many instances where the principle had been seen as part of the laws of the land. Note that both the civil and public law of the European Union has incorporated numerous precautionary elements. In civil law, the liability in the tort of negligence is very much recognized. Note that in the landmark case of Donoghue v Stevenson (1932)37, Lord Atkin said that reasonable care must be taken to avoid acts or omissions that can be reasonable foreseen as to cause injuries to other. The foreseeable causes as expounded by Lord Atkin are a parallelism of the basic precepts which governs the precautionary principle38. On the other hand, the EU public law also displays the elements of precaution. Note that according to Article 174(4) of the EC Treaty, “in preparing its policy on the environment, the Community shall take account of (1) available scientific and technical data, (2) environmental conditions in the various regions of the Community (3) the potential benefits and costs of action or lack of action (4) the economic and social development of the community as a whole and (5) the balanced developments of its regions.” As a basic guiding principle in the formulation of policies in the European Community, the precautionary principle had more or less been part of the laws of the land. Note that in the case of R v Derbyshire County Council (2000)39, the court had acknowledged that this principle is already made part and parcel of the policies of the land and that there is no need to isolate this principle. In the end, we can say that even though there is no clear definition of the precautionary principle both internationally and in the EU, this principle is still very much alive and functional when it comes to serving as the backbone of policy-making. Bibliography: 1. Amvac Chemical UK Ltd) v Secretary of State for Environment, Food and Rural Affairs and Others (2001) EWCH Admin 1011, CO/3087/2001 2. Cameron J. Abouchar J. Precautionary Principle: A fundamental Principle of Law and Policy for the Protection of the Global Environment. 14 B.C. Int’l & Comp. L. Rev. 1991 pp. 1-27 at p. 2 3. Cameron J. The Precautionary Principle. In: Sampson GP, Chambers WB (eds.) Trade, Environment, and the Millennium (1999), pp 239-241 4. Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Montreal, 29 January 2000 5. Commission of the EC. Communication on the precautionary Principle. COM (2000)1, Brussels, 02.02.2000, p. 10 6. Commission of the European Communities. Communication on the Precautionary Principle. COM (2000) 1. Brussels, 02.02.2000 Annex II 7. COMMUNICATION FROM THE COMMISSION on the precautionary principle Brussels, 2.2.2000 COM(2000) 1 final http://europa.eu.int/eur-lex/en/com/cnc/2000/com2000_0001en01.pdf 8. Donoghue v Stevenson (1932) AC 562, at 580 9. E. Fisher, Journal of Environmental Law, Vol. 13(3) 2001 at page 315 10. European Environment Agency. Late lessons from early warnings: the precautionary principle 1896-20000. Environmental issue report No. 22. Luxembourg: office for Official Publications of the EC, 2001, p. 192 11. http://www.un.org/esa/documents/ecosoc/cn17/1997/ecn171997-8.htm 12. Kourilsky P., Viney G. Le Principe de Precaution. Rapport au Premier Ministre. Paris 15 Otobre 1999. http://www.ladocfrancaise.gouv.fr?BRP/notices/004000402.html. 13. Mackenzie R., Burnhenne-Guilmin F., La Viña A.G.M. and Werksman J. An explanatory Guide to the Cartagena Protocol on Biosafety IUCN – Environmental Law Centre 2003 14. Multinational Monitor September 2004 - VOLUME 25 - NUMBERS 9 Retrieved 19 March 2007 http://multinationalmonitor.org/mm2004/09012004/september04corp1.html 15. OECD. Report of the Working Group on Harmonization of Regulatory Oversight in Biotechnology. C(2000)86/ADD2, 25 May 2000, p. 33 16. O-Riordan, Cameron J. The history and contemporary significance of the precautionary principle. In: O’Riordan T. Cameron J (eds) Interpreting the Precautionary Principle. London: Cameron & May 1994 p. 14 17. Philippines -- Oposa et al. v. Fulgencio S. Factoran, Jr. et al. (G.R. No. 101083) retrieved 19 March 2007 http://www.elaw.org/resources/text.asp?ID=278 18. Rio Declaration on Environment and Development, 18 December 1992, UN Doc A/47/719, Environmental Law and Policy 22/4 (1992) Article 11(8) 19. R v Derbyshire County Council (2000) CO/1493/2000, 6th October 2000, The Times 8th November 2000 20. R v Secretary of State for Trade and Industry ex parte Duddgridge and Others, Journal of Environmental Law, Vol. 7(2), 1995 at page 224. 21. R. v Environmental Agency , ex parte Dockgrange Limited and Another (1997) The Times, 21st June 1997 22. Rio Declaration on Environment and Development: application and implement Report of the Secretary-General COMMISSION ON SUSTAINABLE DEVELOPMEN Fifth session 7-25 April 1997 E/CN.17/1997/8 23. Sands P. Principles of International Environmental Law 1995 p. 213 24. Sands P. Principles of International Environmental law I: Frameworks, Standards, and implementation. Machester: Manchester University Press, 1995 pp. 208-213 25. Stone CD. Is there a Precautionary Principle? 31 Env. L. Rev. 2001 pp. 10789-10799 at 10789 26. Ticker J. The Precautionary principle. The Networker, May 1997 Vol. 2, No. 4 www.safe2use.com/data/precaut1.htm 27. Timothy ORiordan, James Cameron, Interpreting the Precautionary Principle, Earthscan Publications; (October 1, 1994) 28. Understanding the Precautionary Principle http://www.cne.org/pub_pdf/precautionaryprinciple.pdf 29. UNEP Rio Declaration on Environment and Development retrieved 18 March 2007 http://www.unep.org/Documents.multilingual/Default.asp?DocumentID=78&ArticleID=1163 30. United Nations Development Program (1988) Compendium of Decisions Related to the Environment. National Decisions Volume 1 http://www.unep.org/padelia/publications/jud.dec.nat.pre.pdf 31. United Nations Environment Program. The World Environment 1972-1992. London 1992, p. 706 32. Wiener JB. Precaution in a Multi-Risk World. In: Paustenbach DD (ed) The Risk Assessment of Environmental and Human Health Hazards (2nd ed.) 2001 33. World Charter for Nature A/RES/37/7 retrieved 17 March 2007 http://www.un.org/documents/ga/res/37/a37r007.htm 34. 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