The world becomes more exposed to the dangers facing the environment due to the exploitation and development of technologies. Without clear scientific evidence, it is hard to determine the extents of a threat to human health, and because of these environmental damages are often irreversible and serious. Therefore, it has been recognized that there needs to be an adjustment in attitudes and actions in order to sustain the environment, and to greater extent humanity, in order to survive the ‘global environmental stresses and strains.' These are the main reasons to adopt the Precautionary Principle (“PP” hereinafter).
The PP is an approach that intended to prevent scientific uncertainty being used to justify serious threats to the environment. It stresses the relationship between the principle and the management of risks that might impinge upon the environment, human, animal, or plant. In essence, the PP has provided guidance in the development and application of international environmental law where there is no clear evidence of harm or risk of harm from an activity or substance. It means the proponent of activities which might lead to either significance, serious or irreversible harm is obliged to take measures to prevent this damage, even if there is lack of scientific information as to the existence and severity of the risk. Essential elements include the magnitude, distribution and probability between the potential harm and its likelihood of occurring. The rationale behind the PP is simply regarded as “better safe than sorry”. It is not surprising that most advocates of the PP emphasize its preventive role.
To fully understand this principle, it is necessary to consider the circumstances and reasons surrounding its development. The origins of precaution appear to lay in national law, notably German law, where the PP (termed as Vorsorgeprinzip) is considered the most important of German Environmental policy. The principle has its roots in cases when serious harm is threatened, positive action to protect the environment should not be delayed until irrefutable scientific proof of harm is available.
The central objective of PP is reflects a need for effective environmental measures to be based upon actions which take a long-term approach and which might predict changes on the basis of scientific knowledge. It also responds to an important problem in decision-making, namely, the absence of complete scientific information concerning the environmental consequences of a particular activity. It is believed that if decisions are made based solely upon available information, there is a high potential that the environment will be damaged irreparably because the impetus for economic development, maximize the potentially useful technology, tends to be strong. Consequently, the PP has received widespread support by the international community as a valuable tool to integrate both economic and social development with environmental protection. At an international level, this principle was first recognized by the Vienna Convention (1985) and Montreal Protocol (1987) which reflected the ‘precautionary measures’ to protect the ozone layer and control equitably total global emissions of substances that deplete it. The Principle was explicitly advocated by the Bergen Declaration (1990); “In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation.” By 1992, the United Nations Conference on Environment and Development (UNCED) significantly furthered the consensus on the core of the PP which was enshrined in Principle 15 of the Rio Declaration on Environment and Development . This states that “the principle is to be applied by states according to their capabilities so that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as reason for postponing cost-effective measures to prevent environmental degradation.” In the following year, the Treaty of Maastricht required European Community to base environmental law policy on the PP. In addition, a number of important international conventions have incorporated into this principle, including the Biodiversity Convention and the Climate Change Convention as well as Agenda 21.
There are 3 basic elements of this principle; (1) the threat of harm where the impact of a scientific or technical innovation is unknown, but an evidential threshold is met. This is, therefore, establishing a potential harm. Paradigm examples of this situation are in applications of biotechnology or the marketing of new chemicals, where the environmental and human health impacts are unknown, but potentially serious. (2) Its features of uncertainty distinguish itself from prevention approach. Prevention applies to situations where the harm and its impact is reasonably well known and needs to be prevented, whereas precaution applies where the impacts are unknown, but there is a sufficient threat of environmental harm to justify action. The precaution is, generally, not about the character of the impact constituting the economic damage, it rather concerns an unsustainable over exploitation. It focuses on the balance of an ecosystem and how it relates to the unpredictable and dynamic fluctuations of natural factors such as removing one particular species from an ecosystem. (3) The third element is a need for measurement in order to address such harm that is an aspect of proportionality between exploiting natural resources and level of protection. According to the Rio Declaration (Principle 15), the PP concludes that uncertainty is not a reason for postponing cost-effective measures to prevent environmental degradation. As this has been interpreted in the Commission Communication; “to imply a power, or possibly a duty, to take timely action to address the potential harm, but requiring that the measures that are taken should not go beyond what is cost-effective.” Essentially, the measures envisaged must make it possible to achieve the appropriate level of protection, but measures must not be disproportionate. For instance, in some cases a total ban may not be a proportional response to a potential risk whereas it may be the sole possible response to a potential risk in other cases. It presents the idea of proportionality which seeks to find a balance between environmental protection and human exploitation. In addition, the level of damage for the principle to apply, the threat of environmental damage must be ‘serious’ or ‘irreversible’ although there is not yet any limitation on the grounds of cost effectiveness as to the measures which should not be postponed.
Another important legal element introduced by this principle is a reversal of the burden of proof. It shifts responsibility for producing scientific evidence by requiring the enterprise that conducts the scientific work to evaluate the risk. Generally speaking, the PP methods can reverse the burden of proof and place it on the producer, manufacturer or importer. As long as human health risks cannot be evaluated with sufficient certainty, legislators are not legally entitled to authorize use of substances unless exceptionally for test purposes. To this end, precaution and the revised burden of proof will ease potentially close decisions in a risk assessment. Moreover, where such procedures do not exist, users, private individuals, consumer associations, citizens or public authorities can demonstrate the nature of a danger and the level of risk posed by a product or process. It is a case-by-case aspect of precautionary measures. As such, it leads to a wide range of possibilities in policy options, not simply about allowing or banning. It can be triggered by specific situations, and experience suggests it incorporates proportionality; non-discrimination; consistency; cost-benefits analysis and examination of scientific developments.
The PP in environmental law is of significant importance particularly with regard to technology-based new developments that have also effect public health as well as ecosystem. Today protection of human health continues to be a primary concern in environmental law. The interconnected relationship of the protection of the environment inevitably leads to the protection of public health as well as serves the interests of human beings in a long term. O’Riodan stressed that “the duty of precaution endows public authorities with responsibility for the protection of the natural foundations of life and of maintaining the physical would interact for future as well as present generation.”
International organizations have long recognized the PP as a matter of domestic and international law that it is generally preferable to prevent environmental harm than to deal with the consequences after it has occurred. The PP began to attract attention during the third period of IEL development, for States have increasingly invoked the PP in an attempt to resolve certain technical problems and political tensions when dealing with the international environmental problems. Technically, the PP responds to various degrees of scientific uncertainty and environmental risk by imposing a duty on States to prevent environmental damage despite a lack of scientific information. Politically, the PP attempts to address the inherent tension between territorial State sovereignty and the growing need of international community to address certain transnational, global environment, and development problems.
The focus of international environmental attention expanded from local, transboundary harm to regional and global harm and from case-by-case determinations to general proscriptions of behavior. Hickey anticipating the growing frequency of the PP, suggested that future international treaties and legal instruments will continue to invoke precaution and link it to the scientific analysis.
The PP is becoming increasingly relevant as an international legal measure to guide decision-making in the face of scientific uncertainty; reflected by a growing body of legal instruments. This is evident on three levels. (1), The PP is emerging as a guiding norm in international environmental law on a global level. (2), The PP gains high levels of support that inspire international acceptance, illustrated in European Courts of Justice and Courts of First Instance as well as in numerous EU policy documents. Finally, while multifariousness of meanings still exists on a global level, particularly in international economic debates, the PP gains recognition in cautious development regime of WTO law.
The Precautionary Principle in relation with the International Environmental Law
Despite the fact that the PP has established its vital role in international environmental law as it has been reciting in numerous international environmental statements and treaties, the issue of when and how the PP is applicable has given rise to much debate. Uncertainties exist not only regarding to the science elements, but also with the different levels of scientific knowledge.
The obligation to exercise precaution is sometimes rendered imprecise by references to economic considerations, different socio-economic contexts and application by States according to their capabilities as stated in the Rio Declaration.
Beyond the proposition, the principle has not refined the prevention obligation into a predictable substantive rule of precaution obligation. The assertion and codification of an ill-defined, ambiguous principle in international agreements and instruments has created uncertainty in international environmental law. The uncertainty exists on several interrelated topics of legal and practical significance of the principle; for instance the definition and its legal status; the application of the principle to affected business; the obligation assumed by States; and the future shape and content as such. Moreover, the PP does not easily aligned with the scope of the institutional and administrative framework, meaning that precaution is not an indicator instead it can be seen by the public as the public mistrust objectivity and a recognition that fill a policy gap. Its flexibility fills the gap and assists authorities to justify decision-making. However, the inherent flexibility of this principle makes it difficult to predict the outcome of its application in any situation and to ascertain its implications. Another problem derived from its flexibility is that it does not determine what kinds of standards should be used.
‘Principle’ or ‘Approach’?
One of the first hurdles to overcome is the words used to explain the application of the PP; the “principle” and “approach”. The distinction between the Precautionary Principle and the Precautionary Approach is diffuse and controversial.
As Garcia pointed out, the wording, largely similar to that of the principle, but subtly different in that: (1) it recognizes that there may be differences in local capabilities to apply the approach, and (2) it calls for cost-effectiveness in applying the approach. The principle 15 of Rio Declaration and the US have opposed the use of the term “principle” due to the fact that a principle of law is a source of law which means it is compulsory. On the other hand, an “approach” is generally softer and rather a guideline indicating the objectives. It therefore promotes the flexibility which advances the protection scheme for future development.
Notwithstanding, while international instruments relate primarily to government action, or inaction, all social actors continuously carry out risk analysis and management within their spheres of responsibilities as an integral part of the protection plan, the terms "Precautionary Principle" and "Precautionary Approach" seem interchangeable. In this regard, the WTO Appellate Body Report comments on the existence and implications of a precautionary principle also indicate ‘this principle is not distinct from the already used and recognized precautionary approach to risk management.’ Regardless of whether there is a definable and distinct "precautionary principle," such a principle clearly involves a precautionary approach to risk management in situations characterized by a lack of full scientific certainty as to the magnitude of identified risks.
The Precautionary Principle in WTO law
In relation to the trading scheme, the World Trade Organization (WTO) acknowledges probabilities of hazards and its consequences that may affect international trade in agricultural products and foodstuff. The WTO is, therefore, agreed on the Application of Sanitary and Phytosanitary Measures (“SPS Agreement” hereinafter) in order to provide guidance to risk assessment and it “reaffirming that Member should adopt and enforce measures necessary to protect human, animal or plant life or health.
However, such measurement is subject to the requirement that they are not constitute a means of arbitrary or unjustifiable discrimination between Members where the same conditions prevail or a disguised restriction on international trade. According to the Commission, a WTO member is entitled to determine the level of environmental or health protection that it deems appropriate and, therefore may apply precautionary measures that lead to a higher level of protection than provided for in the relevant international standards or recommendations.
The SPS Agreement commits members to base these measures on internationally established guidelines and risk assessment procedures. In essence, it allows the WTO to regulate the international exchange of agricultural products and requires member states to assess risks with respect to consumer safety and environmental degradation and such assessment is based on its national health measures . Put simply, the SPS Agreement ensures that the government gives health protection and not creating unnecessary restriction on trade simultaneously.
The PP has been put on the administrative agenda within the context of ensuring public health. This development has emerged in spite of the fact that there are still worldwide debates about the meaning of the PP as a doctrine, notwithstanding almost three decades of history underlying the principle. However, these debates have not prevented the PP from occupying a significant place within both international and domestic policy-based documents and/or legislation. In spite of a general acceptance of the PP either as a principle or as an approach, the main issue remains how to operationalize this principle. Although, there are various parties related to the PP with various understandings, demands, and hopes, which in turn it reflects uncertainties. Nevertheless, the ambiguity does not deprive the PP from maintaining its intrinsic value in the light of environmental protection scheme.
Precaution Principle in relation with Thai regulations
The level of use of toxic pesticides in Thailand is in crisis. The study reflex the increasing consumption of toxic pesticides while the productivity does not rising. The health problems of farmers and consumers are also rising up as pesticides contaminant residues in fruits and vegetables.
According to the statistic from the Office of Agricultural Economics Department of Agriculture in 2011, Thailand has imported 34,672,000 kilogram of insecticide substances, 112,176,000 kilograms of herbicide and 164,383,000 kilograms of other pesticides. More importantly, the research found that the average of 64,000,000 Thai people are at risk of exposure to pesticides of more than 2.6 kilogram per person per year . This statistic significantly shows a very low control of the pesticides not only usage but also the accessibility to the pesticides. Pesticides are being sold commonly everywhere and easily accessible by all farmers and other users. Although there are some control regulations such as Hazard Substances Act B.E.2535 enforces on the import and export of certain chemicals but the remaining residue and the number of use are not declining.
While the global facing with uncertainty of the effect of certain chemical of the pesticides due to the lack of scientific data, the PP serves a widespread support to protect the human as well as environment as it is illustrated in many international treaties and declarations especially in the European Union. Denmark, in particular, is allowed only 80 types of chemical being used in agriculture field while Thailand has more than 300 types of chemical commonly use in our agriculture field. Despite the fact the pesticides have direct effect to the user, it also effects significantly to the ecosystem. In the light of fact, European Union is generally accept the PP and has been using it to achieve a high level of protection of the environment as well as human, animal and plant well-being. Indeed, the level of acceptance for the principle in the EU demonstrates through its policy which aims at a high level of protection taking into account the diversity of situations in the environment. For instance, the Denmark imposes on pesticide tax, also known as “Environmental charge”, up to 37% of the retail price. On the contrary, Thailand exempts the import tax of pesticides aiming to facilitate its accessibility to the farmer, and simply to maximize it productivity without caution of being criminalize not only to human being but also the environment as a whole.
Although it is a general obligation of every country to ensure that any activities within their jurisdiction and control shall respect the environment and it was acknowledged that an International Environment bodies incorporate precautionary elements, the Thai regulation remains uncertain as to the legal status of the Precautionary Principles in the domestic law. Consequently, it restricts the capabilities of mandatory force of the precautionary approach. Simply, there is no real obligation is imposed on the Government bodies and that reflects unnecessarily mandatory in resolving environmental problems.
The problem of toxic substance is a multifaceted issue as it causing not only widespread public health problems hamper internal economic development but also deplete ecosystem as a whole. Without clear scientific evidence, it is difficult to determine the extent of a threat to human health and our environment. The magnitude of potential harm and its likelihood of occurring underline the fact that precautionary activity is necessary in order to promote sustainability of environment. Although pesticides are genuinely hazardous to both human and environment, their negative impacts and externalities have not been targeted sufficiently by Thai environmental policies. Whereas at international level, many attempts have been made to formulate general concepts seeking to balance between the restriction of new technologies and limits to how far the Precautionary Principle can be taken.
It is the responsibility to protect public and environment from hazardous chemicals. The Precautionary Principle therefore provides a general indication of what might be desirable policy and practice. Many international environmental instruments have referred to this principle when dealing with regional and international environmental problems. The emphasis has shifted away from the more traditional, reactive methods of solving environmental problems towards the precaution. The international environmental protection agreements are based on proactive or preventative measures which encompass collective action and burden sharing. As a result, the world is moving towards preventive environmental harm by changing their economies and lifestyles ahead of scientific proof. Consequently, many parties categorize this principle as constituting customary international law, but whether or not it has actually gained such legal status is left undefined.
The emergence of the Precautionary Principle denotes the recognition of both national and international bodies on an objective to prevent environmental harm rather than dealing with problem after it has occurred. It is therefore a useful tool for a more systematic response to the problem of scientific uncertainty and decision-making with respect to environmental and health issues. The Precautionary Principle is a seemingly common sense principle that is not common, for it is related to various bodies with various understandings and goals. Notwithstanding, it has greatly affected the construction and development of international environmental law, encompassing legal duties and principles. Regardless whether or not it has reached customary status it already become an internationally-recognized environment tool. The principle requires forward thinking beyond present conditions to a potential future and working outside current frameworks to as yet unknown. The Precautionary Principle is one of such contingent cultural control that paves the way for the international environmental protection regime to a greater sustainable future. In regard to this pursuit, the most important aspect for the future of this principle in environmental management is perhaps the role of integrating science, economics, politics, and law together responding as future security.
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