Precautionary Principle

The precautionary principle is a principle of environmental policy making that legitimizes the adoption of preventative measures to address a potential threat of [Page 745]severe environmental damage. It was developed in response to two specific problems of international environmental governance: the need to take into account the particular nature of environmental damage, as well as conditions of persisting uncertainty in decision making. It recognizes that some forms of environmental harm, such as the extinction of a species, are irreversible. Furthermore, the full extent of the harm (and thus its reversibility) cannot always be assessed in advance: Thus, uncertainty as to the extent of the damage persists often until after it is committed, when it is sometimes too late (or too costly) to stem the harm. Given such conditions, the precautionary principle prescribes the safest course of action, namely, the suspension of the potentially damaging activity until it has been proven risk free. In precautionary language, it shifts the burden of proof: The risk need no longer be verified in order for policymakers to be able to proscribe a potentially harmful activity. Rather, the onus is upon those who want to pursue the activity (or course of action) to prove that it is not environmentally damaging. The precautionary principle moves environmental governance from a reactive basis (where protective policies are devised in reaction to damage that has already occurred) to a preventative one.

The concept has its roots in 1970s–1980s German environmental law (Das “Vorsorgeprinzip”). It emerged into international law at the 1987 International Conference on the Protection of the North Sea. Since then, it has permeated most international environmental conventions: Entrenched by the 1992 Rio Declaration (Principle 15), it was written into the Climate Change Convention and (retroactively) into the Convention on Substances that Deplete the Ozone Layer. Thereafter, it was progressively fitted into the mandate of international organizations concerned with natural resource management: It was integrated into the criteria for the listing of endangered species by the Convention on International Trade in Endangered Species in 1994, and adopted by the Food and Agricultural Organization in 1995. However, despite this widespread occurrence in international texts, the use of the term appears to be geographically circumscribed. It is a cornerstone of European Union (EU) environmental law, for example, and has been central in determining the EU's position toward genetically modified organisms. The EU has also advocated extending it to other areas, such as food and health issues. Yet it is widely absent from the U.S. context.

One problem with the precautionary principle, related to this disparity in occurrence, is the lack of consensus as to its status, and, consequently, also its forcefulness: The debate is on-going as to whether it should be considered a principle of international environmental law or merely an approach, a guide to policy making. The precautionary principle has been criticized for promoting a risk-averse approach to natural resource management, in contexts where risk is part and parcel of decision making, and the problem of scientific uncertainty especially acute. In natural resource management, the course of management often has to be decided upon despite persisting uncertainty; there the precautionary approach merely risks paralyzing management altogether.

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