LEGISLATION
The use of precaution has a long history. One can argue that John Snow was exercising precaution when he removed the handle from a London water pump in 1854 because he suspected that the water was causing people to be infected with cholera.
The causal link between cholera and contaminated water was not understood at that time but the measure succeeded in saving many lives (Harramoes et al. 2001).International agreements
The precautionary principle achieved widespread recognition after it was incorporated into the Declaration on Environment and Development decided at the 1992 UN Conference on Environment and Development (UNCED) in Rio de Janeiro. The Rio Declaration states, in principle 15:
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.
In 1993 the Treaty of Maastricht required European Community countries and the European Commission to base environmental policy on the precautionary principle. In 1999 the Council of the European Commission (EC 2000a: 8, 13) urged the Commission to ensure that future legislation and policies were guided by the precautionary principle so that the principle becomes 'a central plank of Community policy'.
The precautionary principle has been incorporated into many international laws and almost all recent international treaties that aim to protect the environment. These include:
• 1992 UN Framework Convention on Climate Change
• 1987 Montreal Protocol on Substances that Deplete the Ozone Layer
• 1992 UN Convention on Biological Diversity
• 2001 Stockholm Convention on Persistent Organic Pollutants (POPs).
In this way, according to the EC (2000a: 11), 'it has become a full-fledged and general principle of international law'. While international courts are still reluctant to accept it as a legal or a general principle, it is, however, widely accepted as a principle with similar standing to that of sustainable development (Andorno 2004: 15-6; Cameron 1999: 30; de Sadeleer 2002: 100).National legislation
The precautionary principle has been incorporated into national laws in several countries, including Germany, Belgium and Sweden, and has influenced several court judgments. In France it has even been included in the nation's constitution, as part of an environmental charter (see chapter 5). This gives the principle priority over other legislation (Case 2005; de Sadeleer 2002: 124-37).
The legal system in English-speaking countries is less conducive to the incorporation of broad principles as it tends to be based on specific rules and regulations. In the United Kingdom, for example, the precautionary principle is not included in statutory law, nor has it made much headway in the courts. It has been included in a weak form in discussion papers and government policy statements such as the 1990 White Paper This Common Inheritance and the 1999 A Better Quality of Life (de Sadeleer 2002: 138; Sustainable Development Unit 1999). The updated UK sustainable development strategy published in 2005, Securing the Future (2005: 101), states:
There are, however, still instances where decisions on managing natural resources will have to be taken on the basis of partial information. In these instances, and where, firstly, there is a risk of significant adverse environmental effects occurring and secondly, any possible mitigation measures seem unlikely to safeguard against these effects, the precautionary principle will be adopted. Where evidence exists of likely harm to ecosystems or biodiversity, we will adopt practices that avoid irreversible damage.
In the USA the term 'precautionary approach' is preferred but there, as in the United Kingdom, broad statements of principle are not generally found in environmental law.
It has been argued that although US environmental and health laws do not refer to the precautionary principle or approach by name, some of the earlier environmental legislation nevertheless adopted it. This has changed in recent years as politicians, under pressure from corporate donors, have demanded all environmental legislation be grounded in scientific rigour and subjected to cost-benefit analysis and risk assessment (Bodansky 1994; de Sadeleer 2002: 139-47).During the 1970s various court decisions supported the need for the US EPA to take action to prevent harm when cause and effect was unproven and therefore harm was uncertain. For example:
• In 1978 the Minnesota Supreme Court ruled that the EPA could apply standards under the Clean Water Act (CWA) that assumed asbestos in drinking water was harmful, even though they did not have scientific evidence to demonstrate it was.
• In another court case, the EPA was allowed to set tough air emission standards for some chemicals under the Clean Air Act (CAA) based on extrapolation from other chemicals about which more was known.
• In 1978 the Supreme Court found that action that threatened an endangered species should be prohibited, under the Endangered Species Act (ESA), even though the long-term value of that species was unknown (de Sadeleer 2002: 141-45).
In the 1980s, when ozone depletion was put forward as an unproven scientific theory, the United Kingdom decided not to regulate until the theory had been validated but the US government took a precautionary approach and restricted chlorofluorocarbons (CFCs) which were thought to cause ozone depletion (de Sadeleer 2002: 154).
In Australia, the precautionary principle was incorporated in the Intergovernmental Agreement on the Environment (IGAE) in 1992 as one of four guiding principles. The agreement does not have the force of law but provides guidelines for environmental policy-making at the various levels of government throughout Australia.
The precautionary principle was also included in the National Strategy for Ecologically Sustainable Development in 1992 (Deville & Harding 1997: 17; Fisher 1999: 83). It has been incorporated in more than 18 laws as well, including:• Protection of the Environment Administration Act 1991 (NSW)
• Environmental Protection Act 1993 (SA)
• National Environmental Protection Council Act 1994 (Commonwealth)
• Environmental Protection Act 1994 (Qld)
• Environmental Management and Pollution Control Act 1994 (Tas)
Several Australian court cases have also considered the precautionary principle, defining it as a 'duty to be cautious' (Fisher 1999: 83).
Further Reading
Andorno, Roberto (2004) The precautionary principle: a new legal standard for the technological age, Journal of International Biotechnology Law (1), pp 11-19.
COMEST (2005) The precautionary principle, World Commission on the Ethics of Scientific Knowledge and Technology, UNESCO, Paris, March,
Deville, Adrian & Ronnie Harding (1997) Applying the Precautionary Principle, The Federation Press, Sydney.
Harding, Ronnie & Elizabeth Fisher (eds) (1999) Perspectives on the Precautionary Principle, The Federation Press, Sydney.
O'Riordan, T & J Cameron (eds) (1994) Interpreting the Precautionary Principle, Earthscan, London.
de Sadeleer, Nicolas (2002) Environmental Principles: From Political Slogans to Legal Rules, Oxford University Press, Oxford.