Precautionary rights and duties of states

Abstract

This study concerns the definition and implementation of the precautionary principle under general, or customary, international law. A search for patterns and common denominators in state practice resulted in the following definitions of a right and a duty which states are deemed to have under contemporary customary international law. RIGHT: Wherever, on the basis of the best information available, there are reasonable grounds for concern that significant harm to the environment may occur, effective and proportional action to prevent and/or abate this harm may be taken, including in situations of scientific uncertainty regarding the cause, extent and/or probability of the potential harm. DUTY: Wherever, on the basis of the best information available, there are reasonable grounds for concern that serious and/or irreversible harm to the environment may occur, effective and proportional action to prevent and/or abate this harm must be taken, including in situations of scientific uncertainty regarding the cause, extent and/or probability of the potential harm. Whereas all kinds of uncertainty and harm (both within and beyond the limits of national jurisdiction) are covered by the scope of this right and duty, they are triggered only when particular levels of gravity (‘significant’ or ‘serious or irreversible’ harm) and likelihood (‘reasonable grounds for concern’) are reached. When there are no reasonable grounds for concern, e.g. in case of a purely hypothetical scenario, or when anticipated impacts are not adverse or significant, the precautionary principle does not apply. Notably, action under the principle is taken in spite of any uncertainty, not because of it. Accordingly, when thresholds are crossed the right and the duty apply whether there is uncertainty or not. The action taken by states must be effective and proportional. Thus, a course of action must be adopted which effectively safeguards the threatened part of the environment and corresponds to the dimensions (gravity x likelihood) of the risk involved. More in particular, action must be taken which (a) is timely; (b) is tailored to the circumstances; (c) does not replace one risk with another of equal or greater size; (d) is regularly reviewed and maintained as long as necessary to prevent the harm in question, but not longer; and (e) in case of doubt regarding the aptness of different measures, errs on the side of environmental protection. As long as it conforms to these criteria, any measure can be a precautionary measure. Under general international law the precautionary principle does not automatically place the onus of proving the acceptability of potentially harmful activities on their proponents. The principle has lowered the standard of proof but has not ‘reversed’ the traditional burden. The ‘reversed onus’ nevertheless plays an important role in the implementation of the principle in that states often exercise their right or duty to take precautionary action by prohibiting activities until proof of their relative harmlessness has been delivered by their initiators. Finally, although the primary purpose of the precautionary principle is to protect the environment, including for its own sake, socio-economic considerations are part of its rationale and make-up as well. There is, however, no separate requirement for precautionary measures to be cost-effective and traditional cost-benefit analysis has no part to play in the principle’s implementation.