Andri G. Wibisana
4. THE PRECAUTIONARY PRINCIPLE
4.3. Interpretations of the Precautionary Principle
4.3.1. Different formulations on the precautionary principle
The presentation of the preceding subsection has demonstrated that many conventions or declarations have different formulations concerning the precautionary principle. Secondly, we have also seen that some documents have used the term ‘precautionary principle’, while others have used ‘precau- tionary approach’ or ‘precaution measures’. Others, such as CBD, do not even explicitly mention one of those terms. Thirdly, although most of the docu- ments explicitly specify the definition of the precautionary principle, other documents, such as the Maastricht Treaty or Energy Charter Treaty, do not.
Those facts have given rise to a question of whether the principle has been recognized as a legal principle at international level. In this respect, many writers have argued that the principle lacks clarity and is too vague to serve as a legal principle.54
54 Bodansky, as quoted by Boehmer-Christiansen, states that the precautionary principle is too vague to serve as a regulatory standard because it does not specify how much caution should be taken. See Boehmer-Christiansen (1994, p. 52). Marchant states that the principle gives no guidance on any of the fundamental questions that are faced in making any risk decision. He also considers the principle as ambiguous, for
However, many international documents have used somewhat similar formulations, namely by referring to the precautionary principle as set forth in the Rio Declaration. Therefore, the documents, to a certain degree, have shown commonalities, which should not have been ignored by those ques- tioning the lack of clarity and consensus concerning the principle. For this reason, this subsection will discuss some leading formulations of the princi- ple.55
Sandin has expounded a comprehensive classification of the precautionary principle. The author discusses some versions of the precautionary principle, based on four constructing elements of the principle.56
The first element is the threshold.57 Before undertaking a preventive measure, the precautionary principle requires a threshold to be set in accor- dance with the harmful potential of an activity. Once this threshold has been crossed, the preventive actions are required or suggested. Nollkaemper states that in principle determination of the threshold level excludes the considera- tions of costs. However, in practice, the threshold leaves so much room for discretion that it is difficult to assess whether the decision that a threshold has been crossed is a decision based purely on scientific considerations.58
Various formulations of the precautionary principle reveal that there are several expressions to address the threshold level. The most common termi- nology is ‘serious or irreversible damage’, which I consider as a high level of
example, as to what level of risk is acceptable, what role costs should play in risk deci- sions, what quantum of scientific evidence is sufficient for making decisions, and how potential risk–risk trade-offs should be addressed. See Marchant (2002). For the same reason, Birnie and Boyle sceptically state: ‘Despite its attraction, the great variety of interpretations given to the precautionary principle, and the novel and far-reaching effects of some applications suggest that it is not yet a principle of international law.
Difficult questions concerning the point at which it becomes applicable to any given activity remain unanswered and seriously undermine its normative character and prac- tical utility, although support for it does indicate a policy of greater prudence on the part of those states willing to accept it’ (Birnie and Boyle, 1995, p. 98; emphasis added); (Tickner and Reffensperger, 2004, pp. 3–4).
55 Here, I assume that different formulations will lead to greater differences in interpretation. Conversely, a more similar formulation, to a certain degree, could gener- ate a more common understanding on the principle.
56 Based on the terminology used to express these elements, referred to as
‘dimensions’, Sandin then discusses the precision and the strength of various formula- tions. By ‘strength’, he means the ‘degree of cautiousness, i.e. the number of cases in which precautions were to be taken’. See Sandin (1999, p. 890).
57 Sandin uses the term ‘threat’ to refer to threshold. However, I prefer to use the word ‘threshold’ because it is related to the minimum limit that should have existed before precautionary measures are invoked.
58 Nollkaemper (1996, pp. 81–2). In this regard, we could refer to a strict divi- sion between risk assessment and risk management. This issue will be discussed later.
threshold, compared to other phrases such as ‘possible or potentially damag- ing effects’ or ‘harm or hazards to humans or the environment’.59We can see that threshold levels are determined in a very broad as well as in quite a specific terminology. In this regard, the easier the threshold to be crossed, the stronger (more cautious) the principle will be. In addition, the threshold can also explain that the precautionary principle is intended as an exceptional prin- ciple which holds only for certain risks considered to have extraordinary magnitude. Hence, a very broad definition of the threshold may inevitably undermine the intention of applying the precautionary principle.
The second element is ‘uncertainty’. Sandin observes that the less precise the definition of uncertainty, that is, the less plausible the threat has to be, the stronger the principle is.60In general, most of the documents interpret uncer- tainty in terms of scientific uncertainty as a ‘lack of scientific certainty’.
However, some documents have attributed such scientific uncertainty to the evidence concerning the causal link between the inputs and the effects, that is, the proof about the threshold.
The third element concerns the measures to be taken. Such measures are mostly expressed in the need to ‘avoid’ or ‘prevent’ the threat from occurring.
They will be taken whether or not the threat is scientifically certain. This implies that under uncertainty preventive measures will be taken as if the threat is certainly known. Therefore, the precautionary principle is closely related to the principle of prevention. The only difference between the two principles is that the former applies for some uncertain threats, while the latter is for some certain threats. The precautionary principle is nothing more than an extension of the prevention principle, which will be implemented because some threats are considered so irreversible and serious that we need to prevent them even if they are not known with scientific certainty.61
59 Usually authors categorize ‘irreversible’, ‘serious’, and ‘catastrophic’
damages in one group, as contrasted to ‘reversible’, ‘non-catastrophic’, and ‘well- behaved’ damage. See Flemming (1996, pp. 157–8).
60 Sandin (1999, pp. 892–3).
61 Marr and Schwemer have discussed the precautionary principle under German environmental law. According to the authors, the German origin of the precau- tionary principle ‘implies the adverse effects to the environment or human health on the basis of potential risks (Risikovorsorge), rather than classical hazard prevention (Gefahrenabwehr) under the preventive principle’. The essential difference between risk avoidance (the prevention principle) and precaution lies in the possibility of iden- tifying a given risk, where the latter corresponds to the pervasiveness of uncertainty.
See Marr and Schwemer (2004, p. 134). See also von Moltke (1996, p. 102). Cameron and Abouchar have also expressed a similar opinion by stating that the precautionary principle is the extension of Principle 21 of the Stockholm Declaration (obligation not to cause harm) to situations of scientific uncertainty. See Cameron and Abouchar (1996, p. 46).
It is also important to note that some documents have set out certain limi- tations to the implementation of preventive measures. In general, considera- tions other than safety should also be taken into account as a part of the precautionary principle. The Rio Declaration’s version of the precautionary principle, for example, has integrated measures with cost-effectiveness. Other documents have explicitly required that cost–benefit analysis (CBA) be under- taken in determining whether or not to take a measure.62 This limitation constitutes an important part of the precautionary principle, which will deter- mine the strength of the principle.63However, one should be careful with the distinction between the concept of CEA (cost-effective analysis) and CBA.64 Apparently, there is only one document, the 2002 Stockholm Convention on POPs, which has explicitly required that the precautionary principle be employed in accordance with CBA.
The fourth element is the command dimension of the precautionary princi- ple. In this regard, the strength of the precautionary principle will be deter- mined by the status of the measures.65A mandatory status of the precautionary principle is typically expressed in phrases such as ‘shall strive to adopt’, or
‘must not wait’. However, most of the status is expressed in a vague formula- tion, namely that uncertainty ‘shall not be used as a reason for postponing’
preventive measures. It is unclear whether the measures are mandatory or not, because its only stated that uncertainty does not justify inaction.66
Although there is only one document, namely the 1982 World Charter of Nature, which has explicitly formulated the shifting in the burden of proof, we
62 Other limitations to the precautionary principle are expressed in terms of ‘the Best Available Technology’ (BAT), ‘the developments in scientific knowledge’ or
‘technical and economic considerations’.
63 Sandin, however, does not consider such limitations in his classification. On the other hand, the importance of such limitations has been addressed by several arti- cles in order to avoid a strictly absolutist construction of the precautionary principle.
See Nollkaemper (1996, pp. 87–93), who addresses the need for a balance between benefits and risks, and between risks and risks. See also Christoforou (2003, pp.
249–50) on the need to weigh the costs and benefits of the precautionary measures.
64 In CBA, both costs and benefits should be measured in monetary units. A project will pass the CBA test if the monetized benefits are greater than the costs. In contrast, CEA enables us to make a clear separation between the costs and benefits of a project. In this regard, since the measurement of future benefits is the most problem- atic part of the economic appraisal of a project, the use of CEA will allow the analyst not to measure the benefits in monetary units. An alternative proposal or a project is considered as cost-effective, hence it passes the CEA test, if it can give the most bene- fits at a given cost (budget constraint) or it can achieve a given level of benefit at the least cost. Sugden and Williams (1978, p. 190).
65 Sandin (1999, p. 895).
66 Wiener, however, interprets the precautionary principle as non-mandatory, because it only permits preventive action to be taken.
cannot ignore the importance of this issue in implementing the precautionary