Andri G. Wibisana
3. THE PREVENTIVE PRINCIPLE
Accordingly, liability will only come into play if the action infringes the law and at the same time gives rise to adverse impacts on other people or the envi- ronment.
Based on our previous discussion, we could argue that Article 34 has reduced the function of the polluter-pays principle only as a part of the liabil- ity system. Instead of placing the principle as an overarching principle that underlies the need to internalize the externalized environmental costs, Article 34 interprets the principle as a basis for the negligence rule. Moreover, Article 34 also requires unlawfulness in order to apply the polluter-pays principle.
We could argue that this interpretation is inconsistent with the aim of the polluter pays principle, since there are several methods that can be employed to internalize the environmental externality; and these methods are not limited only to the negligence rule. Hence, we could propose a new article that could interpret the polluter-pays principle more appropriately. Such an article should place the principle as the basis of any proposed instruments to remedy envi- ronmental externality and should interpret pollution in a broader sense that is not limited only to damage resulting from unlawful acts.
state sovereignty to exploit resources available within its jurisdiction, while the principle of prevention stems from the need to protect the environment as a goal in itself.34Secondly, the principle of prevention is not confined to the issue of transboundary impacts of certain activities. Rather, it is directed at minimizing the risk of environmental pollution.35
The preventive principle thus relates to the anticipatory measures aimed at avoiding environmental pollution before it occurs. Hunter and others argue that the principle of preventive action may reflect a view which considers that environmental protection is ‘best achieved by preventing environmental harm in the first place rather than by attempting to remedy or compensate for such harm after it has occurred’.36
The recognition of the principle of prevention is illustrated by the adoption of the principle in several conventions, ranging from the marine environmen- tal protection regime to biodiversity.37The principle has even gained accep- tance in the ICJ’s ruling on the Gabcikovo-Nagymaros case, which states that prevention is required due to the irreversible character of damage to the envi- ronment and of the limitations inherent in the mechanism of reparation once damage occurs.38
However, one should bear in mind that the obligation to take preventive measures requires the states only to exert due care in order to avoid damage.
A state cannot be held liable for the transboundary damage if it has carried out measures to prevent the damage from occurring. The question thus remains as to what kinds of measures can be considered as due care or due diligence. In this regard, several conventions have also set forth some types of due care, such as the obligation to carry out environmental impact assessment (EIA), monitoring, and consultations, as part of states’ obligation to prevent environ- mental damage.39
It is important also to note that in undertaking a preventive action against environmental harms from a particular technology or activity, one needs to consider that the available alternatives for such a technology or activity would create less harm to the environment. This is particularly the case when the preventive action is taken by banning a certain substance, technology or activ- ity. For this reason, Sunstein argues that the principle of prevention can only
34 Trouwborst (2002, pp. 35–6).
35 In this regard, Sands argues that under the principle of preventive action, ‘a state may be under an obligation to prevent damage to the environment within its own jurisdiction, including the obligation to take appropriate regulatory, administrative and other measures’ (emphasis in original). See Sands (1995, p. 195).
36 Hunter et al. (1998, p. 364).
37 De Sadeleer (2002, pp. 65–6).
38 De Sadeleer (2002, p. 67).
39 Hunter et al. (1998, pp. 364–5).
be justified if, all things considered, it is better than the alternatives, which means that the benefits of the prevention exceed the costs incurred.40Hence, pollution prevention, so Sunstein argues, should be ‘what is recommended by cost–benefit analysis’.41
3.2. The Relationship between the Preventive Principle and Other Principles
As we discussed earlier, the polluter-pays principle is primarily aimed at inter- nalizing the externality, thus avoiding the costs of repairing the damage being borne by society and not by those who have caused the damage. However, theoretically, the effective instrument would impose high costs on the poten- tial polluter. In this case, the polluter-pays principle may have a deterrent effect, so that it could finally prevent the repetition of similar damages from occurring. On the other hand, the preventive principle is mainly aimed at avoiding the reparation of damages: to prevent is better than to cure. In contrast to the polluter-pays principle, prevention thus applies when damage has not yet materialized, but there are reasonable grounds to suspect that the damage would occur if prevention had not been undertaken.
The preventive principle is also closely related to the precautionary princi- ple. If the former aims to tackle risks under certainty, the latter obliges preven- tive measures to be taken even when the risks have not yet been established with full scientific certainty. Moreover, the precautionary principle is directed only at risks or threats that are irreversible or serious in nature. The difference between the two principles will be discussed in the following section.
Finally, it is also important to note the relationship between the preventive principle and the rectification principle.42De Sadeleer has discussed the differ- ence between the two principles in relation to their scope. While the preventive principle has a wide scope of application, the rectification principle is focused on the prevention at source of environmental pollution, by obliging the poten- tial polluter or polluting activity to make use of the best available techniques (BAT) in order to prevent the pollution in the first place.43Thus, the principle
40 Sunstein (2002, p. 101).
41 Sunstein (2002, p. 102).
42 The principle of rectification obliges states to tackle environmental pollution at the source of the pollution. We could refer this principle to Article 174 (2) EC Treaty, which states that the Community’s environmental policy ‘shall be based on . . . the prin- ciples that . . . environmental damage should as a priority be rectified at source . . .’.
43 Ibid., p. 75. According to the Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, the Best Available Technology is ‘the most effective and advanced stage in the development of activities and their methods of operation which indicate the practical suitability of particular
of rectification constitutes a shift from the end-of-pipe approach. On the other hand, the rectification principle also expresses the need to rely more on qual- ity standards rather than on emissions standards.44
3.3. The Preventive Principle According to Act No. 23 of 1997
The preventive principle has been included in Act No. 23 of 1997. Article 10 of the Act stipulates that the government has an obligation to develop and apply instruments of a pre-emptive, preventive and proactive nature in an effort to prevent decreases in environmental supportive and carrying capacity.
Moreover, Article 14 states that stipulations on environmental quality stan- dards, prevention of and coping with pollution and restoration of its carrying capacity are regulated by government regulation.
In addition to the two articles above, several articles related to the obliga- tion to carry out environmental impact assessment can also be considered as an interpretation of the preventive principle. In this case, the proponent of an activity should submit the assessment of possible impacts arising from its activity. EIA thus constitutes an important procedure for the authorization of an activity, which is expected to be able to inform the authorities, the propo- nent of a project, and third parties about the potential impacts that could result from the proposed project. This information could also be regarded as a requirement for a fuller integration of environmental concerns into the deci- sion-making process.45
A final remark on the interpretation of Act No. 23 on the preventive princi- ple deals with the issue of best available techniques or technology. In the previous subsection, it was argued that the preventive principle is closely related to the notion of BAT, as required under various environmental conven- tions. Unfortunately, the Act has not incorporated the BAT obligation into the formulation of the preventive principle.
techniques for providing in principle the basis for emission limit values designed to prevent and, where that is not practicable, generally to reduce emissions and the impact on the environment’. In addition, the use of BAT should take into account the costs of providing such techniques/technology. Economically, it is not desirable to force the potential polluter to undertake or purchase the best techniques to prevent environmen- tal pollution, if they can only be purchased at an excessive price. For this reason, the BAT could also be interpreted as the BAT not entailing excessive costs (BATNEEC).
44 Krämer observes that the first use of rectification principle appeared during the debate between the Commission and the UK government over the question whether discharges into water should be tackled on the basis of emission standards or quality standards. One reason to apply emission standards was that of the rectification princi- ple, obliging states to rectify as many environmental impairments at source as possible.
See Krämer (2003, p. 12).
45 Ibid., p. 87.