Precautionary Principle

The Precautionary Principle calls for dealing with uncertainty and risk in a cautious manner. At its core, the precautionary principle argues that when a course of action carries risk of harm, precautionary measures should be taken, even when there is scientific uncertainty about whether a harm will occur. According to the precautionary principle, a lack of scientific certainty should not be used to avoid taking action to prevent potential damage.

The precautionary principle has been developed as a legal principle in international environmental law. In environmental law, the precautionary principle seeks to prevent actions that would cause irreversible environmental damage for future generations.

History
There is disagreement about the origins of the precautionary principle, with some claiming is evolved from the German principle ‘Vorsorge’, or foresight, while others trace the origin to domestic law in Sweden.

By the 1980's, some form of the precautionary principle was included in international environmental law. The Montreal Protocol, signed in 1987 to protect the ozone layer, called for “taking precautionary measures to control equitably total global emissions of substances that deplete it.” The Rio Declaration in 1992 also included the precautionary principle.

International Law
The precautionary principle is well enshrined in international environmental law. Most international environmental agreements include some concept of precautionary action. This includes the Montreal Protocol, the Rio Declaration, and the United Nations Framework Convention on Climate Change.

The preamble of the Montreal Protocol calls for the parties to: "Protect the ozone layer by taking precautionary measures to control equitably total global emissions of substances that deplete [the Ozone layer]"

Principle 15 of the Rio Declaration reads: "In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. 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.”

The United Nations Framework Convention on Climate Change (UNFCCC), signed in 1992 adopted the same precautionary approach as the Montreal Protocol. Article 3 stated"The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects."The UNFCCC was signed at a time when the scientific uncertainty about climate change was greater than it is today and the negative impacts of climate change were far less visible. The ambition of the UNFCCC to begin limiting greenhouse gas emissions therefore relied heavily upon the precautionary principle.

United States
In the United States the precautionary principle is not expressly mentioned in laws or policies. However, some laws have a precautionary nature, and the principle underpins much of the early environmental legislation in this country (The National Environmental Policy Act, The Clean Water Act, and The Endangered Species Act).

Controversy
Various criticisms of the precautionary principle have been offered, both in regards to it as a philosophical principle and as a matter of law. Objections to the precautionary principle include:


 * The precautionary principle if too strictly applied would bind an actor to inaction because all actions involve some risk of causing harm.
 * Inaction carries it's own risks.
 * Decision-makers are sometimes selective in their use of the precautionary principle, applying it for political reasons, rather than scientific reasons.
 * One of the most controversial elements of the principle is the shift of the burden of proof. Traditionally, the person claiming an activity could cause harm should produce proof to back up that claim. The precautionary principle reverses the burden of proof—the individual or entity proposing the activity must prove the activity is not harmful.

As a practical matter, however, the precautionary principle seeks to balance risk and caution and provide a legal tool to avoid harms, particularly irreversible harms, before they occur. As humanity has advanced in capability and now has the ability to alter the planet and life itself in significant and irreversible ways, the precautionary principle can serve as a legal tool to proceed with caution in areas where significant dangers may arise.

Cases Involving Precautionary Principle

 * Ali v. Federation of Pakistan
 * Farooq v. Federation of Pakistan
 * Farooque v. Bangladesh
 * Greenpeace Nordic Ass’n v. Ministry of Petroleum and Energy
 * Leghari v. Federation of Pakistan
 * Swiss Senior Women for Climate Protection v. Swiss Federal Council
 * Urgenda Foundation v. State of the Netherlands