CRITIQUE ON PRECAUTIONARY PRINCIPLE AND PUBLIC DECISION MAKING
Author: Ms Jeffy Johnson, Assistant Professor, Christ Academy Institute of Law and PhD Scholar, CMR University.
The thought about the precautionary principle as an idea laid down in the Rio Declaration on Environment and Development is very disputable. Principal 15 explains that when there is harm, damage cannot be reversed and is serious. If there are no adequate scientific methods to provide backing, then it can be termed as a means to delay cost-effective measures to prohibit environmental degradation. Although there is no strict rule concerning this principle, it is subdued by the uncertainties of scientific call. Principal 15, or the Precautionary Principle in International Environment Law, is highly controlled by soft law. This has been showcased as the presumption that the reason is being placed only from one side; they fail to provide a specific decision. This article addresses the conflict that was rising in decision-makers minds about whether opting for scientific methods will remove the burden on the policy. In this case, scientific experts will have to look into the flaws in their science as they will be answerable for the same. They will shift the burden of proof on the policymakers to ascertain the ratio of risk that will be recognised as permissible. The main issue is that when scientific evidence is not fully proven, that decision should be based on what parameters. They need to look into the interest of the stakeholders. The paper intends to examine the risk faced in governance and the intersection between scientific methods and current policy.
Keywords: Precautionary Principle, scientific, policy.
INTRODUCTION TO THE CONCEPT OF PRECAUTIONARY PRINCIPLE
The precautionary Principle deals with the prior anticipation of harm to the environment. Due to this harm precautionary steps are taken to avoid the hazardous act. It includes both concrete dangers as well as a potential harm. It is to be noted that this principle is taken up indifferent notions in various environmental instruments. It can be understood as the simple saying it’s better to be safe than to be sorry. In Agenda 21 itis stated that the need to safeguard the environment by using the precautionary principle is important and it is the state's duty to apply it as per its capabilities. In scenarios where there is no scientific certainty and irreversible threats, then instead of making excuses should opt for cost-effective measures to avoid degradation of the environment.
The notion of precaution is applied when risk is assessed, managed, and communicated methodically. Scientific judgement may contain some degree of unpredictability; which decision-makers must consider in terms of rationality. The degree of permissibility may be determined by examining several characteristics, such as the evaluation of scientific methodologies, cost-effectiveness analysis, and the political component, which includes the concept's acceptance rate in society. When studying the precautionary principle from the standpoint of public policy, it may be stated that scientific tools are insufficient, and the degree of risk involved is still significant. The risk rate is determined by environmental, health, and safety variables.
Prohibiting environmental harm may result in additional implementation expenses such as treatment charges and the company's reputation. While we invest in techniques of production that have the impact of degrading the environment, it has no sustainability; investing in sustainable operations will be favoured in the long term. This will pave the path for less financial risk and improved environmental performance. While investing, insurers should search for companies that prioritise ecological performance. There should be research and development to generate more environmentally friendly goods that will benefit humanity in the long term.
OVERVIEW OF THE PRECAUTIONARY PRINCIPLE
One of the most challenging concerns in current international legal developments is the precautionary principle. Many legal experts have called into doubt the core concept of a global environmental law norm. The Precautionary Principle is still widely used on a worldwide and national scale in a variety of industries. Its nature and scope have altered dramatically depending on the environment and industry in which it has been employed. The 'Precautionary Principle' is important in deciding whether or not a development process is sustainable. The 'Precautionary Principle' underpins sustainable development, which states that if a development activity causes substantial and irreversible environmental damage, it must be stopped and averted. Establishing the Precautionary Principle signals international environmental law transitions from the Assimilative Capacity Principle to the Precautionary Principle.
According to the Wingspread Statement of 1998, the precautionary principle is defined as even if some cause-and-effect relationships are not demonstrated scientifically, preventive measures should be taken when an activity poses a risk to human health or the environment. The precautionary principle must be used in a transparent, informed, and democratic manner, involving all parties who may be affected. A thorough examination of all choices, including inaction, must be provided. In this case, the promoter of the activity should have the burden of proof, not the entire public.
ROLE OF THE INTERNATIONAL COURT OF JUSTICE
The European Court of Human Rights referenced case law from the International Court of Justice while analysing the necessary legal framework. It explicitly cited a passage from the International Court of Justice's judgement in the Danube Dam case, in which the ICJ acknowledges "the importance of taking environmental concerns seriously and adopting the required precautionary measures." In evaluating whether or not it has recognised a customary authority to the concept, the ICJ stated that "both Parties agree on the necessity to take environmental issues seriously and to take the necessary precautionary measures" in the Gabcikovo-Nagymaros Project case (Hungary v. Slovakia 1997).
Due diligence, which the International Court of Justice defined as a usual responsibility in its judgement in the Pulp Mills case 2006(Argentina v. Uruguay), and the cautious attitude, which is a component of due diligence, suggest that precaution is an obligation with roots in a customary rule. The conclusion is clear: the sponsoring States' duty of care requires them to take all necessary precautions to prevent damage that may result from the activities of contractors they endorse, including situations in which scientific proof about the context and potential adverse effects of the inquiry activity is inadequate. Still, there are possible indications of key hazards.
THE LEGAL POSITION OF THE PRECAUTIONARY PRINCIPLE
Environmental concepts can be used to meet a range of requirements. Their significance ranges from essential legal incentives for driving policy consequences to enforceable principles that can be applied before the legal system. Attorneys are mainly concerned with whether and how environmental concepts might be incorporated into court procedures. The following instances show how the precautionary principle may be used and if it can be brought before a court. The cases discussed below are:
A. U.S.-EU Beef Hormone Dispute
B. Danielsson V. Commission, French Nuclear tests
C. Leatch V. Director-General of National Parks & Wildlife Service and Shoalhaven City Council
A. AN INSIGHT INTO THE BEEF HORMONES CASE 2009
The relevant components of the Beef Hormones case revolve around risk assessment and management. Article 5, sections 1-2 required the European Communities to demonstrate scientific proof of the products' harm to support trade restrictions. The United States and Canada considered that Europe breached its WTO obligations because it had not acquired sufficient evidence to back up its assertions. The Panel agreed with the plaintiffs. The European Communities argued in their appeal that the Panel had not fairly reviewed the EC's scientific findings and that the precautionary principle needed to be appropriately considered in interpreting the SPS Agreement.
Following the preceding precautionary standard, the EC committed to an ongoing research effort. The Appellate Body dismissed the first two arguments but recognised that article 5, section 7did not exhaust the concept. The proviso promptly added that while the idea may be used for interpretation, it did not override the Treaty. The Appellate Body further stated that the Treaty did not establish a specific threshold of acceptable risk and that a Member State was entitled to adopt protection measures that exceeded international standards.
According to the paper, even a scientific minority opinion might support the need for more sanitary protection. Since the EC's actions were not intended to be transitory, as was already mentioned, they were not founded on article 5, section 7. The European Commission countered that the precautionary principle constituted a universal rule of international law. It entails a qualitative and quantitative analysis of the risk and its likelihood of happening. While other States see article 5, section 7 as a backdoor for implementing unconstitutional protectionist measures, the EC wants the precautionary principle to be fully included in the accord.
Even a scientific minority opinion, according to the report, may justify the necessity for increased sanitary protection. Because, as previously stated, the EC's actions were not meant to be transitory, they were not predicated on article 5, section 7. The European Commission responded by claiming that the precautionary principle was a universal rule of international law. It includes a qualitative and quantitative assessment of the risk and its chance of occurrence. While some countries regard to article 5, section 7 as a backdoor for introducing unlawful protectionist measures, the European Commission wants the precautionary principle fully included in the agreement. However, by refusing to confine the notion to its expression in article 5 and section 7, the Appellate Body did not thoroughly analyse the implications of the concept's standing as an interpretative principle.
B. ANALYSING THE FRENCH NUCLEAR TESTS CASE 1996
The first case to be discussed is France's nuclear testing in 1995; a second case on the same issue will be discussed below under the title of European case law. The International Court of Justice's Order of September 22, 1995, is the first example of the precautionary principle's possible legal significance in this context. In the Nuclear Tests case of 1974, New Zealand successfully challenged an International Court of Justice (ICJ) judgement involving a French nuclear test. However, no important decisions were issued because the ICJ barred the matter from being reopened this time. However, the dissenting opinions teach us the value of the precautionary principle in a future case that does not encounter procedural impediments.
In the French nuclear tests, the ECJ never got to answer on the substantive side of this matter because the plaintiff was denied legal standing in the case for the following reasons: Even if the applicants were to suffer personal damage as a result of the alleged harmful effects of the nuclear tests in question on the environment or the health of the general public, that circumstance alone would not be sufficient to distinguish them individually in the same way as any person to whom in this matter is residing there.
For the following reasons, the plaintiff was denied legal standing in the case, which meant that the ECJ could never consider the substantive side of this matter. Even if the applicants were to suffer personal harm as a result of the alleged harmful effects of the nuclear tests in question on the environment or the health of the general public, that circumstance would not be sufficient to distinguish them individually from someone who suffered personal harm as a result of the alleged harmful effects of the nuclear tests in question on the environment or the health of the general public. On the other hand, the Commission claimed to follow the precautionary principle. But their explanation was strange. They defined prudence as considering the worst-case scenario. Even under the more restrictive word employed in the Rio Declaration, for example, there is much more to precaution than simply planning for the worst.
C. UNDERSTANDING THE LEATCH V. NATIONAL PARKS CASE 1993
In this instance, in Leatch V National Parks Case Judge Stein applied the concept to determine if the decision to seize or kill the species was justified. It goes one step further than the prior instance, in which the Bundes Verwaltungs Gericht ordered that the administration employ the precautionary approach in examining the situation. Judge Stein notes that because the species is endangered, the Court's policy should be cautious. The precautionary concept appears most appropriate in cases where scientific information on species' population, habitat, and implications is limited. In this instance, Judge Stein used the theory to evaluate whether it was permissible to approve the taking or death of the species. It should be emphasised that this goes beyond the earlier instance, in which the Bundes Verwaltungs Gericht directed that the administration employs the precautionary approach in assessing the situation.
Judge Stein believes that because the species is endangered, the Court's method should be cautious. The precautionary principle should be applied most frequently when there is no scientific evidence of a species' population, habitat, and consequences. One legal method is to conclude that providing a licence to "take or kill" the species is not suitable until much more is known. Using the precautionary principle resulted in the appeal being upheld, and the licence being refused.
THE INDIAN OUTLOOK ON THE PRECAUTIONARY PRINCIPLE
The apex court had identified the principle as part of Indian Environmental Law in the Vellore case. In this case, it laid down the directions that have to be followed in this regard. The industries are also required to install effluent treatment plants. In 1996 the order was given by the Supreme Court that instructed the tanneries to show cause as to why they were not paying the fine for pollution. The principle of precaution was also part of the sustainable development principles. With respect to municipal laws, the precautionary principle can be seen as follows. Firstly, it is a measure to anticipate, avoid and prevent the causes of environmental degradation. Secondly due to the absence of an enquiry of scientific nature the prevention of environmental degradation cannot be delayed. Lastly, the burden of proof should be vested upon the industrialist to show that his actions did not cause any harm. This principle was applied by the court in scenarios where the pollution was uncertain and non-negligible.
Further in S Jagannath V. Union of India the Shrimp Culture Case, it was held that beaches and coasts of seas have gifts of nature and cannot be polluted. In this case, the intensified shrimp farming by the use of the modern method was causing harm to the mangrove ecosystem. It was leading to the depletion of plantations, there was also a discharge of effluents due to which groundwater was getting polluted. The Supreme Court instructed that a shrimp culture pond be constructed within1000 meters of Chilka Lake and Pulicat Lake including the bird sanctuaries namely Yadurapattu & Nelopattu. This case upheld the precautionary principle.
In the A P Pollution Control Board V M. V. Nayudu the court looked into the development and evolution of the precautionary principle. Then in Narmada Bachao Andolan V. Union of India, it is stated that “When there is a state of uncertainty due to the lack of data or material about the extent of damage or pollution likely to be caused then, in order to maintain the ecology balance, the onus of proof that the said balance will be maintained must be required to be on the industry likely to cause pollution”.
THE PRINCIPLE OF CONTEMPORARY RELEVANCE
With the advent of growth and progress, the concept of risk has been ingrained, and it may be argued that risk should be rewarded. Without such a stance, there would be few opportunities to make effective judgments and no path forward. Looking at the notion from the opposite side, there is always the baggage of uncertainty, and the danger of future harm is unavoidable. The only way to avoid this is to proceed cautiously while considering these activities. The best approach will be to find the perfect balance between risk and prudence.
This means that the precautionary principle and its components can strike a balance. When such a principle is applied efficiently, it does not impede decision-making. Also, it assures adequate contemplation of the elements of uncertainty, resulting in improved output. International law exists as a notion to prevent any environmental breach, which brings to mind economic development, which has a more significant basis than environmental protection.
The Stockholm Conference was a watershed moment in how governments coordinated their efforts to protect the environment. It might be claimed that it set the path for the inclusion of several concepts that are now commonly used in the international environment domain. The precautionary principle falls under the said domain recognised by national and international courts and legislation. However, its complete understanding and implementation are still being worked out since it may function as both a barrier to development and a tool for environmental protection. Although multilateralism has given the world some wonderful tools and solutions for sustainable development, it is now evident that this system must be modernised to obtain critical group choices.
Since the COVID-19 pandemic highlighted flaws in national and international systems, a strong need has been made for institutions to be better prepared to respond to global challenges, notably climate change and environmental devastation. The precautionary principle, as well as other well-considered concepts, are helpful building blocks for the future. The "Precautionary Principle" is critical in determining whether or not the development process is sustainable. The "Precautionary Principle" underpins sustainable development, which holds that any development activity must be halted and restricted if it causes severe and irreversible environmental harm. The evolution of international environmental law may shift from assimilative capacity to the precautionary principle.
RECOMMENDATIONS AND CONCLUSION
The critiques have classified the argument from ambiguity, the challenges from incomprehensibility, and the reasoning from undesirable effects. These concerns, it is maintained, do not result in the repudiation of the precautionary principle but merely of its specific untenable implications. The most challenging aspect of choosing a stance is obtaining an agreement using scientific procedures; there is always ambiguity. A risk regulation strategy may be reached using judgments, which can only be comprehended after the event. A strict rule mandating careful precautions in the face of scientific uncertainty prevents the development of many technologies that may subsequently be considered safe and beneficial to society.
On the other hand, using a scientific-based approach to risk management may enable sources of uncertainty to be overlooked or subjective elements to be masked behind the appearance of objective science. Precaution should not compel decision-makers to overcome all hurdles and make the right option in advance, regardless of unknowns. Instead, imposing specific procedural constraints on regulatory decision-making to ensure that scientific uncertainty is taken into account during the process and that science itself is not stretched beyond the limits of its utility and capacity to inform decisions on regulatory risk measures provides the international community with the best opportunity to prevent severe ecological degeneration in the coming decades.