The Precautionary Principle

Still Only One Earth: Lessons from 50 years of UN sustainable development policy

Critics call it a tool to halt progress, while advocates consider it essential to avoid severe damage to public health and the environment. Our team explores the origins of the precautionary principle, its impact on environmental law, and how it shapes our efforts to curtail climate change, biodiversity loss, pollution, and global poverty. (Download PDF)(See all the Still Only One Earth policy briefs)

If you were warned a meteor was going to crash at your home or workplace at a specific time, would you stay there? Would you leave, possibly losing a day’s work? Your decision would most likely depend on how much you trust the source of this information and on the extent of the damage the meteor could cause when it crashes.

To make this example less theoretical, this precautionary action also applied in early 2020 to decision-makers who were considering the possible effects of COVID-19. When news reached authorities about the emergence of this new strain of coronavirus, there was not enough information about its impact. It would be fair to say it was difficult in January 2020 to imagine the global effects the virus would have. However, there was enough data available on similar viruses to inform the decisions that governments would have to take.

In some cases, governments took early precautionary measures, including travel restrictions, mandatory lockdowns, and quarantines, and saw fewer serious cases and deaths. Other governments did not exercise the same precautionary measures and their citizens have suffered the consequences of their inactions, facing illness, economic hardships, and death.

Those countries that did take effective early action did so without scientific certainty but decided to endure strict and costly measures— in many cases, having to restrict fundamental freedoms and rights of its citizens—to avoid possible horrific consequences. They exercised the precautionary principle.

Understanding the Precautionary Principle

Lawyers can be quite argumentative about the definition and use of a principle in law, but it is safe to say a principle is not a strict rule. It is a guide. A principle has the benefit of including theoretical explanations and fundamentals of law, which help lawmakers in making decisions. This means a principle, when included in a piece of legislation or a treaty, can direct how rules in that legislation or treaty should be applied.

Wiener (2007) describes the precautionary principle as one of the most prominent and possibly controversial developments in modern international environmental law. The principle is contained in many international instruments. Despite no uniform understanding of its meaning, the definition contained in Principle 15 of the 1992 Rio Declaration is widely recognized by states and provides practical guidance in the development and application of international law.

The components of the precautionary principle are still evolving. Some countries avoid using the term “principle,” preferring to call it a “precautionary approach,” since it carries less legal weight. In simple terms, the precautionary principle is an attempt to give the notion of precaution—understood as a form of addressing risk—legal status. Its core elements are the need for environmental protection; the presence of threat or risk of serious damage; and the fact that a lack of scientific certainty should not be used to avoid taking action to prevent that damage (Sands and Peel, 2012). Before the precautionary principle was widely recognized in the 1990s, the traditional approach to preventing environmental damage usually required taking into account the available scientific knowledge asserting the risk, thus applying the preventive principle, where the activities that might cause environmental harm are identified, but it is not certain that they will occur. This approach is used, for example, to establish standards to reduce the known effects of motor vehicle emissions on air quality.

Yet the precautionary principle, as described by Sands and Peel (2012), continues to generate disagreement as to its meaning and effect. On the one hand, some believe it provides the basis for early international legal action to address highly threatening environmental issues, such as ozone depletion and climate change. On the other hand, its opponents have decried the potential the principle has for over- regulating or limiting human activity, as we see in the criticism about the establishment of moratoriums on genetically modified organisms (GMOs) in some countries. The disagreement boils down to: does the principle dictate that uncertainty demands action … or does uncertainty justify inaction?

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.

Source: IISD

Region: Global