Principle 15 In order to protect the environment, the ...

“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 as a reason for postponing cost-effective measures to prevent environmental degradation.” Rio declaration on Environment and development, 1992 Evaluate the above statement in the light of your study of political economy and environmental regulation. In particular examine the implications for sustainability of the application of the precautionary principle. Illustrate your responses with real and historical examples. “Look before you leap” or “Better safe than sorry” are some common-sense maxim’s conveying a message of taking precaution. Precautionary principle also known as precautionary approach simply means that: ‘Any activity which raises threats of harm to human health or the environment should not proceed until it’s proven to be safe.’(Stallworthy, 2008: 156) ‘According to precautionary approach it’s the environment rather than those whose actions may impact on it, that is given the benefit of doubt.’ (Deville and Harding, 1997: 14) From the very beginning, despite being the main topic of debate and facing significant criticism for its ambiguous and undefined nature, the use of precautionary principle has been experienced by most of the sectors especially public health and medicine sectors. However, when it comes to environmental degradation, the application of precautionary principle as an overt concept emerged in 1970’s (Harremoes, 2001:13). Traces of its origin lies particularly in the German principle of “foresight” or “forecaution”—Vorsorgeprinzip. (Common 2005:391). Since its introduction, the principle has been gaining wide acceptance and had a substantial impact on environment related laws and policies, for example it has been incorporated into the 1992 Rio Declaration, International Law of the Sea, Maastricht Treaty and European environmental law etc. (Treich, 2001). The main focus of this paper will be on precautionary principle’s implications for sustainability. Starting with explanation of the precautionary principle concept and its basic components, followed by the different versions of the precautionary principle showing how it was incorporated into numerous international treaties and

conventions.

Later on various applications of

precautionary principle will be discussed and analyzed in the light of political economy and environmental regulations. At the end a conclusion will be given based on how efficiently it has been helpful for implication towards sustainability. Precautionary principle was emerged in 1987, at the second International North Sea conference held in Europe, Where all participating countries agreed on explicit inclusion of the precautionary principle in an international agreement. Following was the statement use for precautionary approach: ‘In order to protect the North Sea from possibly damaging effects of the most dangerous substances, a precautionary approach is much necessary.’ (Sands, 2012: 219) The first attempt of linking precautionary principle to sustainable development was 1990 Bergen Ministerial Declaration on sustainable development in the United Nations Economic Commission for Europe region which used the principle as one the basic application to achieve sustainability. As

stated

in

(BERGEN

MINISTERIAL

DECLARATION

ON

SUSTAINABLE

DEVELOPMENT IN THE ECE REGION, 16, MAY 1990, BERGEN, NORWAY): ‘In order to achieve sustainable development, policies must be used 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.’ (Sands, 2012: 219) Two years later, the precautionary principle was incorporated into the RIO Declaration, which was the most classic and global elucidation of precautionary principle, Rio Declaration was held on environmental development and issues. Rio Declaration clearly defined the precautionary principles basis and its more realistic approach in various applications. Principle 15 of the Declaration as stated in (REPORT OF THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT, 1992) says: ‘In order to protect the environment, the precautionary approach should 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 very common devising of the precautionary principle to gain wide currency was the Wingspread Statement, an attempt to bring precautionary approach to the United States, an often sited

statement

of

that

conference

is:

(WINGSPREAD

CONFERENCE

ON

THE

PRECAUTIONARY PRINCIPLE, RACINE, WISCONSIN JANUARY 26, 1998) ‘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.’ (Tickner, 1999: 01) Although, there is not one exact definition of the precautionary principle but all these actions and decision have something’s in common. Considering these versions (and of course there are many others too which are not discussed here) of International treaties and conventions discussed above, these statements went on to list few factors which are found common: Preventive actions must be taken in case of any uncertainty, Burden of proof regarding impacts shift to those whose actions may cause change, cost effective measures must be taken while looking for alternatives to harmful actions and last is that all of these versions are addressing sustainability. In order to further elaborate these idea, some real life examples of precautionary principles implication will be discussed now. A prime example of this sort is the climate change problem, where a strong sustainability approach might be, in case of an uncertainty, a wait and see policy is not acceptable. As stated earlier, precautionary principle has a major influence on international laws and policies, a good example of that is The United Nations frame work convention on climate change held in 1992, which stated that: ‘Parties should use precautionary approach to anticipate, prevent and minimize the causes of climate change’. This approach has a major influence on Australia’s national policies and legislations. After signing the treaty in 1992 showed his commitment by undertaking the national greenhouse gas inventory(1994), preparing the national greenhouse gas report(1994) to show how obligated Australia is under the treaty, releasing greenhouse 21C (1995) and initiating a greenhouse challenge with the help of an agreement signed by industrial cooperation for reduction of greenhouse gas emissions. (Deville and Harding, 1997:16-19) The very famous case of Australia, New Zealand and Japan is another good example where precautionary principle was used to achieve environmental sustainability. On July 30, 1999,

Australia and New Zealand requested International Tribunal for the Law of the Sea (ITLOS) at Germany, to look over the provisional measure to solve their dispute with japan concerning conservation of Southern Bluefin Tuna (SBT), thunnus maccoyii. The disputed was about conversation of SBT and, in particular, the “experimental fishing program” that japan was doing by violating its agreement with the applicants (Australia and New Zealand). Although the Tribunal didn’t explicitly mention the precautionary principle in decision they made and japan later argued that they didn’t conclusively assessed the scientific evidence they provided. But it was obvious that they found out that to preserve the parties’ right and to put a stop on Southern Bluefin Tuna stock deterioration, measures should be taken as a matter of urgency. As a consequence they ordered japan to refrain conducting from fishing experimental program anymore, which was the very first direct application of the precautionary principle in an International law by an international Tribunal, and stated: ‘The parties should act with prudence and caution to ensure that effective conservation measures are taken to prevent any serious threat to the stock of Southern Bluefin Tuna as there is scientific uncertainty regarding measures to be taken to conserve the stock.’ (Schrijver and Hague Academy of International Law, 2008: 191) Polacheck (2002) did the stock assessment analysis and found that these assessments results indicating that even if Japanese experimental fishing program got successful there was still unlikely chance that it would have resolve the disparity of recovery probabilities or any improvement in the management decision making basis. Marr (2000) defend the Tribunal decision by saying that the order of 27 august, 1999 was a remarkable decision in different number of aspects. First, for the very first time in international environmental law, an international court prescribed an action under the light of scientific uncertainties regarding marine living resources. Secondly, court set an example for fishing nations to cooperate in management and fish stocks conservation by following multilateral treaties ways provided by Law of Sea Convention. Thirdly, guidance can be provided to achieve environmental sustainability by setting a threshold for precautionary actions. Precautionary principle is widely practiced by European governmental organizations, especially in the area of food safety. One of the most controversial and famous case in this regard was the Ban of Bovine growth hormone. For all the member states of the European Union it was prohibited

to administer bovine somatotrophin to dairy cows. The ban was based on the uncertainty of various effects of new substances such as bovine somatotrophin on the health of humans and living stocks and on the environment. This ban was temporary until 31st December, 1999, for allowing the member states to study the effects of bovine hormone (deFur and Kaszuba, 2002: 158). Because of its controversial nature this ban was so badly criticized by the US scientists and economists. There were concerns related to the occurrence of mastitis in cows but other effects of its use played a vital role (deFur and Kaszuba, 2002: 158). According to (European Commission, 1999) it had adverse effects on environment, quality of milk, and social and economic aspects of agricultural practices and trade. It was concluded by the Scientific Committee of Animal Health and Animal Welfare that the rate of mastitis increased and foot and leg disorder problems also increased, and adverse effects on the reproduction system were also observed (deFur and Kaszuba, 2002: 159) As stated in previous example that precautionary principle caught so much attention at European Union level, in particular, judicial decisions are mostly based on the principle. Pfizer case was the very first case of its kind to experience very detailed and explicit analysis of both precautionary principle and EU institutions science. In 11 September 2002, Pfizer pharmaceutical was banned for the use of certain antibiotics in animal feeding, in order to bring animal quickly and with less feed to an appropriate weight for slaughter, by Court of First Instance upholding of the ban of European Union Council. The major concerns in this case were about the possibility and fear that, possible development of some resistant bacteria in that particular antibiotics which made the treatment of some diseases ineffective, was increased in recent years. It seems appropriate that court of justice and court of first instance have held that when there is scientific uncertainty to the existence of risk to human health, the community institutions may, by reason of the precautionary principle, take protective measures without waiting for the reality and seriousness of those risks to become fully apparent. They also emphasized on the fact that the ban on the use may have significant adverse effect on the environment. (Janssen, 2007) It was considered as a landmark in development of precautionary principle because it was first time that Court of First Instance (CFI) interpreted the key elements of the principle and condition for right application of the principle. (da Cruz Vilaca, 2004; Asselt.V & Vos, 2006). Forrester & Hanekamp (2006) justified this ban by saying that since the case was specifically concerned with

the use of virginiamycin, which is an antibiotic, as growth promoter in animal feed. Although, it’s very difficult to determine either this antibiotic is transferrable to human from animals or not but it’s proven that it has sure risk for public health. Asselt & Vos (2006) has stated that CFI ban was purely based on the precautionary principle, attesting that there was indeed enough scientific evidence to show that there could be a link between transfers of this resistance bacteria from animal to humans. Further they said that Pfizer’s seeking for annulment was useless because no producer could ever prove this would never happen or could never happen. New Zealand’s Trio Holdings VS. Marlborough District Council (1996) case is another good example to further elaborate the potential of sustainable development where preservation of natural character was sought only in terms of precautionary approach. In that case, the Tribunal by substantially applying a precautionary approach, restricted a proposal for marine farming, saying that it will put a threatened species (king shag) habitat area to the deletion. The Planning Tribunal refused approval for mussel farming with related impacts of shell litter and feces because recently, on land adjacent to it the Department of Conservation had approved an ‘Eco Camping Ground’. (Vanderzwaag, 2002: 13). Macdonald (2003) explain this case further, she says that evidence provided wasn’t efficient and there was unknown uncertainity about the effects of farm on an endangered species feeding nearby. The tribunal according to her said: ‘We concluded that in this respect it was better to err on the side of an abundance of precaution…Whilst we have no certain evidence of the Shag’s continual survival, we nevertheless consider that the deletion of this site from the proposal would ensure that there is a zone of protection around its feeding ground. So, we prefer to act cautiously in this regard.’ (Macdonald, 2003: 269) From my point of view, such kind of cases shows New Zealand’s willingness to give precautionary principle a valuable status in sustainability. The actions and decisions taken in above discussed cases in this study present something common and have same features. Decision in each case is taken on the grounds that any harm occur to the environment or public health might be irreversible or very dangerous. In this study although I tried

to focus on the application of precautionary

principle and how it affected sustainability in discussed cases but my personal opinion is that these decision somehow were lacking to address the criticism much extensively. It was found in all cases that in case of lack of scientific knowledge or evidence, use of precautionary principle is a

beneficial option. Contrary to criticism that there is no scientific basis for precautionary principle, the use of this principle can be seen where there is substantial information on the status of the system in question. Sometimes you can’t just solely rely on scientific certainties or predictions and also what can be done? If science failed to give us certainty about the likelihood of an adverse event that may occur in future, because risk cannot be ignored. In such situation, I think precautionary principle comes into play. I would like to quote an example to justify my opinion here. In the aftermath of the Chernobyl Nuclear Disaster, in may 1986 a radioactive cloud passed over the UK, resulting heavy thunderstorm rained out radiocaesium deposits over upland areas. Despite reassurance of scientists that there would be no lasting effects of this thunderstorm, six weeks after a sudden ban on sale and slaughter of hill sheep was imposed. Although it was expected to be last for maximum three weeks only, because it was thought that radiocaesium ca be chemically immobilized in the soil by washing off vegetation, some hill farms in these areas of Cumbria and North Wales, are still restricted six year later. The reason found out to be that spectacular scientist’s mistake was made while making prediction assumptions that were totally opposite to what actually happened. Thus contrary to scientific predictions, the levels of radiocaesium in the sheep did not drop, and restrictions had to be extended indefinitely. It can be clearly scene that varied dimensions of uncertainty should make a real difference to the way we asses environmental law decisions and that one of the reasons that precautionary principle has emerged as a central tool to manage uncertainties in environmental and public health policies. (Holder, 2007: 18-19) Good thing about precautionary principle is that its implication tend to shift the onus of proof and require the person, who wishes to carry out any harmful activity, to prove that it will not be dangerous to environment or public health. This interpretation would require polluter and polluting states to ascertain that their activities and the substance discharging would not significantly affect the environments before granting any rights to them. Although the long term prospects of Precautionary principle with technological development and scientific advancement for protecting the environment and human health and for sustainability of biosphere seems excellent. But when seen from a different perspective, it seems that precautionary principle is in some way shifting the power of decision and policy making into the hands of scientists. To many it may look like a good contribution towards sustainability as scientific knowledge is based on logics, facts and proofs. But this does not mean that it is sustainable. The reason for this is that scientists often argue on

many facts, so policies based on scientific approach cannot solely be served for sustainability. Precautionary principle needs to be properly defined, if it’s really needed to be used in various laws or judicial cases, because every country or court is defining it the way they want to use it which makes it more complex and put it under criticism. Furthermore, precautionary principle isn’t a guidance principle, it just tells you when to take precautions but it doesn’t say specifically how to do that. Some people argue that this principle is vague and it could be a threat to human progress but on the other hand there are many who see this principle as a hope which may give us a chance of achieving ecologically sustainable development.

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