Analysis of the Precautionary Principle
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The planet earth is presently being dominated by the human species. It is the wish and whim of the human beings that decides the fate of other life forms on the planet. The existence of life on earth, as we all know, presupposes balanced ecosystem and congenial environment. Though the human beings have established their superiority over other living creature they themselves are biologically very sensitive to the environmental changes and any minor deviation in the ecosystem is bound to affect them adversely. Human beings, having the basic animal instinct to protect themselves from the potential threats, have realised that their life is full of difficulties and risks.
The urge to deal with the life threatening risks that they face has formed the basic condition of their survival. Owing to this the human race is constantly making sincere endeavour to make life more comfortable by minimising all possible threats to life. The advances in the field of science and technology have blessed us with many gadgets and devices that not only ease some hardship of life but are capable of avoiding or diminishing some most threatening risks of nature. There cannot be two views regarding beneficial effects of technological and scientific developments – the life expectancy has gone up significantly in recent years and the quality and comfort of life is scaling new height day-by-day, many deceases and hardships of human life now belong to history.
Today the ability of human beings, to transform the natural characteristics of the earth, has reached a level that is not only alarming but dangerous too. We must consider the fact that man has acquired this enormous power to alter the ecological balance on this planet only within a century, thus giving rise to genuine doubt - how long the nature will be able to tolerate the excessive interference resulting out of human activities? The population of human beings has increased at an unprecedented pace in recent past causing undue pressures on the limited natural resources.
Some of these resources are depleting at an alarming rate and is reason for worry as they have been created by the natural process over millions of years. One example could be depletion of the natural non-renewable energy resources like coal, petroleum etc. One must bear in mind that mother earth treats all its children alike and therefore, it will not be justified to deprive the present and future generations of the nature’s bounties. “ 1 ” All living species have an inborn instinct to insure their progeny and to make provision for the welfare of their descendants. It is expected, therefore, that Homo sapiens will take the leading role in saving the earth for their future generations.
Earlier, environmental policies at the national as well as international level were based on the concept that nature has capacity to absorb the ill effects of pollution and environmental degradation to a certain extent but, once the shock bearing threshold is breached, the pollution and environmental degradation may cause damage to the environment calling for remedial efforts. This is known as the concept of ‘assimilative capacity’ of nature. This concept is based upon the notion that nature has self curative mechanism and needs no intervention unless the pollution and imbalance caused by human activities breaches the permissible level. If we adhere to this concept, the role of environmental protection agencies will begin only when this upper limit of damage bearing capacity of the environment is breached.
In the quest for developing, faster then fastest, many nations have ignored this threshold limit of the environment while harnessing their natural resources, building industries, big dams and townships without making provisions for adequate compensation for the erosion and damage caused to the environment. In such a scenario, one cannot depend solely upon the earth’s self purifying and self curative capacities.
Especially when, the earth is loaded with nuclear and toxic waste; forest cover is depleting faster than ever; global warming has started showing ill effects; the virgin peaks of Mount Everest and the uninhabited lands of North and South poles have become littered by man; water pollution in rivers and seas is destroying the life of aquatic creature; acid rain and smog has become more rampant, an effective proactive strategy coupled with effective measures to check further degradation of the environment is the cry of the day. Such strategy and measures assume greater importance in those cases where the adverse impact of any activity upon the environment cannot be ascertained and predicted with certainty.
Should precaution be taken anticipating harmful impact on environment and thereby halt the developmental activities or leave it to the nature to repair the damage using its limited assimilative capacity is the question to be answered. The precautionary principle guides us in such tricky situations. Since 1970s, the precautionary principle has become the underlined rationale for a number of international environmental treaties and declarations. It is evident that international community has shifted from the ‘principle of assimilative capacity’ to the ‘precautionary principle’ ratifying the old saying that precaution is better than cure.
Origin of the Principle
It is difficult to identify with certainty the origin of the principle. “The precautionary concept found its way into international law and policy as a result of German proposals made to the International North Sea Ministerial Conferences”. In Germany the precautionary principle had its beginnings in the principle of Vorsorge, or foresight. At the centre of early notions of this principle was the understanding that society should endeavour to avoid environmental damage by careful planning in advance, blocking the harmful activities having the potential to adversely affect the environment.
Eventually “the Vorsorgeprinzip (precautionary principle) developed in the early 1970s into a fundamental principle of German environmental law and has been invoked to justify the implementation of vigorous policies to tackle acid rain, global warming, and North Sea pollution. It has also led to the development of a strong environmental industry in that country”. The concept was first enunciated by the German Federal Government in 1976 using the following words:-
Environmental policy is not fully accomplished by warding off imminent hazards and the elimination of damage, which has occurred. Precautionary environmental policy requires further more that natural resources are protected and demands on them made with care.
Subsequently the precautionary principle was invoked in the year 1984 at the First International Conference on Protection of the North Sea. Following this conference, the principle has been integrated into numerous international conventions and agreements. The North Sea Treaties (Bremen, 1984; London, 1987; Hague 1990; Esbjerg, 1995) are some of the early examples of international treaties where the precautionary principle has had a very prominent position.
III. Meaning and Nature
The precautionary principle aims to provide guidance in the development and framing of policies where there is scientific uncertainty. It continues to generate disagreement as to its meaning, ambit and objectives, as reflected in the views of scholars and international judicial practice. “On the one hand, some consider that it provides the basis for early international legal action to address highly threatening environmental issues. On the other hand, its opponents have decried the potential which the principle has for over regulation and limiting human activity. The core of the principle is still evolving”.
The scope of the precautionary principle goes beyond the problems associated with a short or medium term approach to environmental risks. It encompasses the concern of longer run as well and ensures well-being of future generations. A decision to take measures without waiting until all the necessary scientific knowledge is available is a precautionary approach. In its most elementary form, the precautionary principle is a strategy to cope with scientific uncertainties in the assessment and management of risks. It is about the wisdom of action under uncertainty. “The precautionary principle is often seen as an integral principle of sustainable development that is development that meets the needs of the present without compromising the abilities of future generations to meet their needs. By safeguarding against natural resource base that might jeopardize the capacity of future generations to provide for their own needs, it builds on ethical notions of intra-and inter-generational equity”.
The formulation of the precautionary principle in precisely and clearly expressed form, at the international level, can be found in the London Declaration of the Second International North Sea Conference. The Declaration states-
.. In order to protect the North Sea from possibly damaging effects of the most dangerous substance, a precautionary approach is necessary which may require action to control inputs of such substances even before a casual link has been established by absolute clear scientific evidence.
The Rio Declaration, 1992 ensured the global attention towards the precautionary principle by stating –
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 protect environmental degradation.
The convention on Biological Diversity, 1992 and the Convention on Climate Change, 1992 of the Rio-Conference echo the same spirit of precaution – “lack of full scientific certainty should not be used as a reason for postponing cost-effective measures”. Hence, lack of scientific certainty is no reason to postpone action to avoid potentially serious or irreversible harm to the environment.
At the basis of the precautionary principle is the element of anticipation, reflecting a requirement of effective environmental measures based upon actions which forms a long-term strategy. The wingspread statement on the precautionary principle has summarised four components of the principle that should guide its implementation –
- Action to prevent harm despite uncertainty.
- Shifting the burden of proof of proponents of a potentially harmful activity.
- Examination of a full range of alternatives to potentially harmful activities, including no action.
- Democratic decision making to ensure, inclusion of those affected.
The communication from the European Communities (EU) on the precautionary principle demands the applicability of the principle and explains its scope in the following words:-
Although the precautionary principle is not explicitly mentioned in the Treaty except in the environmental field, its scope, is far wider and 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 chosen level of protection.
It is clear from the aforesaid formulations of the principle that there is no uniform acceptable principle of precaution. London Declaration, 1987 uses qualifying language such as ‘may require action’ and ‘before… absolutely clear…. Evidence’. Rio Declaration, 1992 also includes qualifying language such as ‘according to their capabilities’ and ‘…postponing cost-effective measures’. EU communication 2000 requires intervention to maintain the high level of protection chosen by the EU. “The triple negative notion is the definition in the Rio Declaration; the absence of rigorous proof of danger does not justify inaction is rather weak: it forces the consideration of precautionary intervention but does not require such intervention. The definition in the EU communication on the other hand does require intervention to maintain the high level of protection chosen by the EU”.
Despite of the fact that various formulations of the precautionary principle have used different words one can easily draw several common points as key elements of the principle. The common understanding of contents of the principle may be summarised as under:-
- Precautionary principle is applicable in cases where scientific uncertainties exist about the harm that is likely to be suffered in future.
- Some form of scientific analysis of the potential threat is mandatory as mere speculation is not enough to trigger the principle.
- Unqualified possibility is sufficient enough to consider the application of the principle.
- Application of the principle is limited to those hazards that are unacceptable.
- The principle requires interventions before possible harm occurs.
- Interventions should be proportional to the chosen level of protection and the magnitude of possible harm.
V. Precautionary Principle and International Law
There can not be slightest of doubts regarding recognition and existence of the precautionary principle in the fields of contemporary national and international laws. Its outlines, however, are far from clear from a legal point of view. Essentially, the precautionary principle is an appeal to prudence addressed to policy makers. The principle does not offer a predetermined solution to every new problem raised by scientific uncertainty. On the contrary, the precautionary principle is a guiding principle that provides helpful criteria for determining the most reasonable course of action in confronting situations of potential environmental risk.
Whether precautionary principle is a legally binding principle in customary international law and national law rather than a guiding principle only is a difficult question to answer. It is generally understood that declarations of principles are not traditional sources of international law and therefore, not binding for the member states of the organisation that adopted them. Such international texts do not have the same legal force as international treaties and conventions. Strictly speaking, declarations of principles are nothing more than ‘recommendations’, without binding force. Despite of this fact one cannot undermine the legal relevance of such declarations. Even though they are not considered as sources of international law, they are legitimately capable of generating norms.
Declaration of principles, though not binding, can influence the elaboration, interpretation and application of international laws of member states of the international organisations that conceived or endorsed the declarations. One cannot underestimate the influence that general principles exert on legal formulation, be it in the international context or in the internal legislation and jurisprudence of countries. In spite of not being obligatory and binding, principles of law constitute important tools for the crystallization of new concepts and values.
Article 38 of the Statute of the International Court of Justice provides that the International Court of Justice, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply amongst other the ‘general principles of law recognised by civilised nations’.
Thus, the general principles of law are also sources of international law. Therefore, it seems incontestable that among the principles emanating from international declarations, the Precautionary Principle is legally relevant and cannot be disregarded, either by the countries in the international order, or by legislators, policy makers and courts in the domestic sphere. From the moment when the Precautionary Principle is recognised as an element of international law, it also becomes part of the general principles of environmental law, with undisputed legitimacy in guiding the interpretation and application of all legal norms in force.
“The Precautionary Principle is frequently introduced in framework conventions. Although this strategy is widely used in international environmental law, it is merely a first step in elaborating more precise rules at the international level fleshing out that principle. Furthermore, in a number of international agreements, the Precautionary Principle” worded in such a way that it is deprived of immediate and autonomous applicability. Use of terms such as ‘form a basis for’, ‘in spite’, ‘endeavour’, etc. imply that the principle is merely intended to prepare states to implement their international obligations. Only the repeated use of state practice and consistent opinio juris are likely to transform precaution into a customary norm”.
The Principle of precaution has found only limited judicial support so far in international law, this despite many commentators arguing that it has reached the status of a principles of customary international law. In the case of New Zealand v. France, the right of France to carryout nuclear tests in the South Pacific was challenged. The opinion of Weeramantry, J. in this case suggests that the Precautionary Principle is ‘gaining increasing support as part of the international law of the environment’. The principle should be used where there is insufficient material before the court to justify action, even if this means acting ahead of ‘full scientific evidence’.
This opinion, however, was a dissent, and it is worth comparing a more, recent example where the Precautionary Principle has featured in international trade disputes. The US and Canada brought a dispute settlement case before the World Trade Organisation (WTO) against the EC, which in 1989 had banned the import of beef fed with growth hormones on the grounds that it was not safe for human health to eat such meat. The EC argued that its import ban was justified in the light of the Precautionary Principle, which is presented as a binding rule of international law. The USA and Canada denied that the principle already had such a status. The WTO found that the EC import ban violated WTO law, although the EC has continued to impose its ban and has been forced by the WTO to compensate Canada and the US for lost trade.
VI. Status in India
In India there are lots of environmental regulations, but most environmental regulations, like the Water (Protection and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 are aimed at cleaning up pollution and controlling the amounts of it release into the environment. They regulate the harmful substances as they are emitted rather than limiting their use or production in the first place. These laws are based on the assumption that humans and ecosystems can absorb a certain amount of contamination without being harmed. But the past experience shows that it is very difficult to know what levels of contamination, if any, are safe and therefore, it is better to err on the side of caution while dealing with the environment.
The Indian Supreme Court has accepted in Vellore case that the Precautionary Principle is part of the environmental law of the country. The Court explained the ‘Precautionary Principle” in the context of the municipal law as under:-
- Environmental measures – by the State Government and statutory authorities – must anticipate, prevent and attach the causes of environmental degradation.
- Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environment degradation.
- The ‘onus of proof’ is on the actor or the developer/industrialist to show that his action is environmentally benign.
In Taj case the Supreme Court was dealing with the problem of protecting the ‘Taj Mahal’ from the pollution of nearby industries. The Court applied the ‘Precautionary Principle’ as explained by it in Vellore Case and observed-
[T]he environmental measures must anticipate, prevent and attack the causes of environmental degradation. The ‘onus of proof’ is on an industry to show that its operation with the aid of coke/coal is environmentally benign. It is rather, proved beyond doubt that the emissions generated by the use of coke/coal by the industries in TTZ are the main polluters of the ambient air.
The Court ordered the industries to change-over to the natural gas as an industrial-fuel or stop functioning with the aid of coke/coal in the Taj trapezium and relocate themselves as per the direction of the Court. The ‘Precautionary Principle’ has been invoked by the Supreme Court in various cases while deciding environmental issues. In Calcutta tanneries Case the Court ordered the polluting tanneries operating in the city of Calcutta (about 550 in number) to relocate themselves from their present location and shift to the new leather complex set up by the West Bengal Government. In Badkhal & Surajkund Lakes Cases the Supreme Court held that the ‘Precautionary Principle’ made it mandatory for the State Government to anticipate, prevent and attack the causes of environment degradation. The Court had no hesitation in holding that in order to protect the two lakes from environmental degradation it was necessary to limit the construction activity in the close vicinity of the lakes.
Even though the Vellore judgment was followed in the subsequent decision of the Supreme Court, the Court felt the need to explain the meaning of the Precautionary Principle in more detail and lucid manner so that Courts and tribunals or environmental authorities can properly apply the said principle in the matters which might come before them. In A.P. Pollution Control Board v. Prof. M.V. Nayudu, tracing the evolution of precautionary principle the Court observed –
Earlier, the concept was based on the ‘assimilative capacity’ rule as revealed from Principle 6 of the Stockholm Declaration of the U.N. Conference on Human Environment, 1972. The said principle assumed that science could provide policy-makers with the information and means necessary to avoid encroaching upon the capacity of the environmental harm was presumed that relevant technical expertise would be available when environmental harm was predicted and there would be sufficient time to act in order to avoid such harm. But in the 11th Principle of the U.N. General Assembly Resolution on World Charter for Nature, 1982, the emphasis shifted to the ‘Precautionary Principle’, and this was reiterated in the Rio Conference of 1992 in its Principle 15.
Explaining the cause for the emergence of ‘Precautionary Principle’ the Court referred Charmian Barton, who argued “ it makes sense to err on the side of caution and prevent activities that may cause serious or irreversible harm”. The Court opined that the inadequacies of science was the real basis that had led to the Precautionary Principle. It was based on the theory that it is better to err on the side of caution and prevent environmental harm which may indeed become irreversible.
The principle of precaution involved the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. The Court adopted the view that ‘Environmental Protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake. Precautionary duties must not only be triggered by the suspicion of concrete danger but also by justified concern or risk potential”.
The concept of burden of proof in environmental cases recognised in Vellore Case that ‘the onus of proof’ is on the actor or the developer/industrialist to show that his action is environmentally benign”, was further elaborated by the Supreme Court in the Nayudu case, M. Jagannadha Rao, J. noticed, while the inadequacies of science had led to the ‘Precautionary Principle’, the said principle in its turn led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed, was placed on those who wanted to change the status quo. This is often termed as a reversal of burden of proof, because otherwise, those opposing the change would be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, the Court observed, “it is necessary that the party who wants to alter it, must bear this burden”.
The Supreme Court favours the view that if the environmental risks being run by regulatory inaction are in some way ‘uncertain but non-negligible’, then regulatory action is justified. According to the Court-
In such a situation, the burden of proof is to be placed on those attempting to alter the status quo. They are to discharge this burden by showing the absence of a ‘reasonable ecological or medical concern’. That is the required standard of proof. The result would be that if insufficient evidence is presented by them to alleviate concern about the level of uncertainty, then the presumption should operate in favour of environmental protection.
In Narmadda Bachao Andolan v. Union of India, the Supreme Court decided the issues relating to construction of dam on Narmada river which was a part of the Sardar Sarovar Project. Explaining the new concept of burden of proof the Court held that the ‘Precautionary Principle’ and the corresponding burden of proof on the person who wants to change the status quo will ordinarily apply in a case of polluting or other project or industry where the extent of damage likely to be inflicted is unknown. Where the effect on ecology of environment of setting up of an industry is known, the Court held-
What has to be seen is that if the environment is likely to suffer, then what mitigative steps can be taken to off set the same. Merely because there will be a change is no reason to presume that there will be ecological disaster. It is when the effect of the project is known then the principle of sustainable development would come into play which will ensure that mitigative steps are and can be taken to preserve the ecological balance.
The Court concluded, what was the impact on environment with the construction of a dam was well known in India, the dam was neither a nuclear establishment nor a polluting industry, therefore, the decision in A.P. Pollution Control Board’s Case would have no application in this case. Despite of the fact that the Court refused to apply ‘Precautionary Principle’ in this case as the impact on environment was known as could have been mitigated, in subsequent decisions of the Supreme Court one may find strict adherence to the Precautionary Principle and the new concept of onus of proof.
To give effect to the Precautionary Principle, Government of India, published a Notification, which states that “the expansion or modernization of any existing industry or new projects listed in schedule I or Schedule II shall not be undertaken in any part of India, unless it has been accorded environmental clearance by the Central Government, or as the case may be, the State Government concerned in accordance with the procedure hereinafter specified in this notification”.
The notification tries to achieve the objective that certain development projects should be carried on within the carrying capacity of the ecosystems, which will otherwise come under stress, so as to ensure that developmental activity takes place in harmony with the environment. This is possible only by careful assessment of a project proposed to be located in any area, on the basis of an Environmental Impact Assessment (EIA) of each project and the necessary Environment Management plan for the prevention, elimination or mitigation of the adverse impact on the environment, right from the very inception of the project.
The Precautionary Principle, being a principle does not set forth absolute obligations. It simply establishes a policy for implementation by other regulatory means. Its relevance, however, would be in the development of a cluster of norms relating to procedural rules. These would include norms such as those requiring prior environmental impact assessment, the duty to warn or notify others, the duty to mitigate and assist in emergencies, as well as access to information. The emergence of the Precautionary Principle has permanently changed the face of international environmental law and policy.
The challenge of implementing the Precautionary Principle while retaining the strength of its original vision is still posing difficult questions before the policy makers. Nevertheless it is well established that Precautionary Principle is an important principle of international environmental law and is gaining strength day by day. Besides being part of several international treaties and declarations the principle has been given place in the body of the national law of many countries.
India has recognised and adopted the Precautionary Principle being party to many international declarations and conventions. The EIA notification of the Government of India, Ministry of Environment and Forests established the principle as part and parcel of the legal framework in India. Many pronouncements of the Supreme Court of India, to begin with the Vellore case, have strengthened and incorporated the international environmental law principle into the municipal law. The Apex Court in India has accepted the principle as part of the concept of sustainable development and has applied the principle several times in order to save environment and to give force to ratio of the judgment. We may therefore, draw inference that the Precautionary Principle has got a status of well recognised legal principle in India.
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