Weiss 2003

International Environmental Agreements: Politics, Law and Economics 3: 137–166, 2003.
 2003 Kluwer Academic Publishers. Printed in the Netherlands.
Scientific Uncertainty and Science-Based Precaution
CHARLES WEISS
Science, Technology and International Affairs, Edmund A. Walsh School of Foreign Service,
ICC 301, Georgetown University, 37th and O Streets, N.W., Washington, D.C. 20057 USA
(E-mail: weissc@georgetown.edu)
Accepted 23 December 2002
Abstract. The debate between advocates of the “Precautionary Principle” and those of “science-based
regulation” hinges in large part on the standard of proof to be applied to the scientific evidence
that a given action poses a danger of serious and irreversible environmental harm. We propose
an intermediate approach, which we term “science-based precaution,” intended to facilitate
adaptive management of environmental issues – that is, learning through experience and experi-
mentation. We propose that evidence justifying precautionary action must be sufficient to create a
“reasonable belief” of serious and irreversible environmental danger. In other cases, in which the pro-
ponents of an action bear the burden of proof that the actions they propose will not cause environmental
harm, we propose that they must make a “clear showing” to that effect. Both of these standards of
proof are derived from a scale constructed from the standards of proof used in various branches of
US law. The “reasonableness” standard of proof for the application of the Precautionary Principle
is more cautious than the record of international efforts to protect the stratospheric ozone layer and
to deal with climate change. It is analogous to the standard of proof imposed by US administrative
law, and is also consistent with the position of the European Union and the holdings of the WTO
Dispute Settlement Body in the beef hormones case. We further propose a Reasonableness Principle:
that scientific research and technological innovations promising major benefits not be unreasonably
blocked before their full implications are understood.
Key words: beef hormones, burden of proof, climate change, good science, ozone depletion,
Precautionary Principle, reasonableness, risk, scales, science-based, standards of proof, uncertainty
Abbreviations: CFC – chlorofluorohydrocarbon; DNA – desoxyribonucleic acid; DSB – Dispute

Settlement Body; EC – European Communities; IPCC – Inter-Governmental Panel on Climate Change;
MIT – Massachusetts Institute of Technology; SPS – Agreement on the Application of Sanitary
and Phytosanitary Measures; UN – United Nations; UNCED – United Nations Conference on
Environment and Development; US – United States of America; WTO – World Trade Organization
Introduction
The Precautionary Principle, which states that action to protect the environment
against the danger of severe and irreversible damage need not wait for rigorous
scientific proof, has been invoked in various formulations as the underlying ra-
tionale of more than a dozen international treaties and declarations, and may be
on its way to becoming an accepted part of customary international law.1
138 CHARLES WEISS
The Precautionary Principle has inspired creative strategies for proactive man-
agement of environmental risk under conditions of scientific uncertainty – which
is the usual situation in decisions regarding environmental policy.2 On the one hand,
it has become an effective tool for blocking projects that may cause serious envi-
ronmental harm. At the same time, it has also been used as a rationale for opposing
critically needed innovation based on unsubstantiated suspicion.3
The Precautionary Principle suffers from two logical flaws that undermine its
effectiveness as a practical guide to the management of scientific uncertainty.4 First,
nearly all formulations of the Principle fail to specify the standard of proof to
be applied to scientific evidence, other than to say that it should be less strict
than the rigorous standards, discussed in more detail below, that are applicable
to research science. They thus allow for a wide range of risk acceptance or aversion.
Second, the Principle does not address the fact that most practical decisions
involve a choice among alternatives, all of which involve benefits, costs and
risks. It addresses the risks of one of the available alternatives – but ignores the
fact that other alternatives are not risk-free, either.
These difficulties underlie a disagreement, especially between the United States
and the European Union, over the presumed difference between “precautionary”
and “science-based” environmental governance. The issues involved are of major
economic importance. They are at the heart of a looming trade dispute over
genetically modified food crops that is already influencing the future of American
agricultural biotechnology.5
In this paper, we seek to increase the practical value of the Precautionary
Principle as a guide to international action, by subjecting its logical content to close
analysis. In so doing, we hope to increase the precision of international discus-
sions and negotiations regarding environmental issues.
We begin by setting forth scales of scientific uncertainty, risk aversion, and
the level of international intervention, and use these scales as the basis for a set
of functions relating the level of intervention to the level of uncertainty at different
degrees of risk aversion. Our analysis leads us to propose standards of proof that
strike a necessary balance between the political nature of decisions concerning
environmental policy, and the need for these decisions to have a reasonable relation
with the underlying scientific evidence. Specifically, we propose that a standard
of “reasonable belief” be applied to scientific evidence invoked to justify inter-
national action to address a global problem, or to justify trade barriers on the
grounds that the feared environmental danger is real, serious and irreversible.
Conversely, we propose that the proponent of a possibly dangerous action “clearly
show” that there is no environmental hazard.
These scales, and the functions based thereon, make it possible to distinguish
clearly between disagreements over the level of uncertainty associated with
scientific evidence, on the one hand, and disagreements over the acceptable level
of risk in a particular situation, as expressed in the standards of proof to be
applied to that evidence, on the other. These questions are logically distinct. The
SCIENTIFIC UNCERTAINTY AND SCIENCE-BASED PRECAUTION 139
first is a technical question for experts in the subject matter; the second is
ultimately a legal and political issue.
We then use these scales to infer the level of risk aversion implied by the history
of international negotiations concerning the depletion of the ozone layer and climate
change, and by the decision of the Dispute Settlement Body of the World Trade
Organization in the so-called beef hormones case.
We further propose a Principle of Reasonableness: that research and develop-
ment on a new technology that promises major benefits not be unreasonably
blocked until the detailed implications of this technology are well understood.
This principle is needed as a complement to the Precautionary Principle, so as
to ensure that the international system can address problems of environmental
sustainability by a system of adaptive management, learning from experience
and experiment, and developing improved technology that is both sustainable
and productive (National Research Council Board on Sustainable Development
1999).
The Precautionary Principle

The Precautionary Principle arose in response to the fact that most issues of
environmental law and policy depend strongly on science and technology, and
yet must be addressed before the underlying scientific facts have been estab-
lished to the rigorous standards of research science. In its simplest form, the
Principle states that if a feared danger to the environment is severe and irreversible,
the absence of rigorous scientific proof is not sufficient to make action unneces-
sary.6 A careful reading of this sentence reveals a triple negative: the absence of
proof does not make action unnecessary (Stone 2001).7
In other words, the Precautionary Principle asserts that one may not argue that
a proposed intervention – say, to protect the environment or public health – may
be dismissed simply because the available evidence in its favor does not meet
the normal standards of research science. This amounts, its proponents say, to a
statement of prudence: “look before you leap,” “better safe than sorry,” “err on
the side of caution,” or “in case of doubt, favor the environment.” At the time it
was first promulgated, the Principle was an important statement of opposition to
the prevailing approach of scientific absolutism: that decisions should be taken
on the basis of “scientific findings”or “in light of knowledge available at the time,”
an approach whose consequence was that lack of full certainty meant no action
(Sand 1994).
From these minimalist origins, the Precautionary Principle has evolved in
many directions.8 Its most important champion is the European Commission,
which has incorporated the Principle into the basic treaty forming the European
Union, and elaborated it into a checklist of proper risk assessment procedures:
comprehensive environmental assessment, cost-benefit analysis, notification of
affected parties, use of clean technologies and good management practices, and
140 CHARLES WEISS
mitigation of expected harm, to cite a few (Treaty on the European Union

1997).9 More recently, the Commission has argued before the Dispute Settlement
Body of the World Trade Organization that the Precautionary Principle has become
an accepted part of customary international law, and should be incorporated by
reference into the international treaties governing trade in foodstuffs (WTO
Appellate Body 1998). Although this view was successfully opposed by the United
States in the actual WTO dispute settlement proceedings, the very fact that it
was argued in an important international legal forum shows the degree to which
the Principle has come to be accepted within the European international legal
community.10
The various formulations of the Precautionary Principle may be classified as
statements of “strong” and “weak” precaution (O’Riordan and A. Jordan 1995;
Morris 2000).11 The formulation of the Precautionary Principle that appears in most
international treaties and declarations is the “weak,” or “triple negative” statement,
that the absence of rigorous proof of danger does not justify inaction. The Rio
Declaration, for example, states that “Where there are threats of serious or irre-
versible damage, lack of full scientific certainty shall not be used as a reason
for postponing cost-effective measures to prevent environmental degradation” (Rio
Declaration on Environment and Development 1992). In this statement, the fear
of danger forces the consideration of precautionary intervention but does not require
such intervention.
A statement of strong precaution, on the other hand, declares that such cases
do require precautionary action to be taken. Strong precaution clearly places the
burden of proof on the proponent of an action to show that it does not pose a danger
of environmental harm. The Wingspread Statement on the Precautionary Principle,
for example, states that “When an activity raises threats of harm to human health
or the environment, precautionary measures should be taken [author’s italics]
even if cause and effect relationships are not fully established scientifically . . .
[The] proponent of the activity, rather than the public, should bear the burden of
proof.”12
In principle, it is possible to interpret the Precautionary Principle as demanding
substantial (though not rigorous) scientific proof before undertaking precautionary
action. Conversely, a more cautious or risk-averse interpreter might urge even
burdensome or expensive precautionary action in order to forestall dangers that
were backed only by evidence amounting only to a suspicion or even a hunch.
Either view would be consistent with the Principle as it is commonly stated. The
European Commission, in probably the most complete statement of the Principle
as it has evolved, states only that a state “has the right to establish the level of
protection . . . that it deems appropriate” (Commission of the European
Communities 1987).13
The Precautionary Principle as a Guide to Management and Policy

The value of the Precautionary Principle as a guide to action in specific cases of
possible serious and irreversible damage to environment or health – as opposed
to its undoubted value as a slogan or a call to action – lies in its usefulness in
answering the question: If a situation or a proposed action gives rise to fears
of environmental danger, what level of international intervention is justified
by varying levels of scientific proof that the danger is in fact serious and
irreversible?
As has already been pointed out, neither the strong nor the weak statement of
the Precautionary Principle specifies the standard of proof to which the evidence
for environmental danger is to be held. This standard of proof would be logi-
cally equivalent to the level of scientific certainty required to justify a given
precautionary intervention, or conversely, the level of certainty required to justify
a particular action that may endanger the environment. This standard is a function
of one’s attitude toward risk.
Two of the most important applications of the Precautionary Principle have been
to international trade law and to international environmental policy. In the case
of international trade law, decisions may turn on whether or not a given level of
evidence for such damage is sufficient to justify a discriminatory trade barrier
that would otherwise be forbidden by World Trade Organization (WTO) rules. This
is a binary question: either the evidence is sufficient at a given time, or it is not.
In the case of environmental policy, on the other hand, the issue is the level of
evidence sufficient to induce international action on a global environmental or
health problem. In this case, increased scientific certainty would logically lead
to an increased level of international intervention, so that the Precautionary
Principle may be represented as a series of functions, each corresponding to a
different level of risk aversion.
In order to lend some precision to this analysis, we first define and calibrate
scales by which each of these variables may be measured, and use these scales
to define a set of functions by which the Principle may be represented as a guide
to action.
Scales of Scientific Uncertainty. There are at least three scales which can be
used to express the level of uncertainty associated with a particular scientific asser-
tion. All three are subjective, in the sense that they express someone’s opinion
at a given time, rather than some objective reality. Each seeks to capture a complex
and changing set of technical facts and judgments as a number or a verbal formula
that is comprehensible to the policy maker and the public. The first of these
scales is the one used in the recent report of the Inter-Governmental Panel on
Climate Change (IPCC), the huge authoritative scientific body advising inter-
governmental climate negotiations. This is a quantitative, seven-point scale of
scientific uncertainty, based on the IPCC’s estimate of the percent probability
142 CHARLES WEISS
that a given statement will turn out to be true when the subject is completely under-
stood (Inter-Governmental Panel on Climate Change 2001).
In a separate paper, the author has set forth two additional qualitative scales
of scientific uncertainty (C. Weiss, “Expressing Scientific Uncertainty,” accepted
for publication, 2003). The first of these is an 11-point scale based on standards
of proof that are used in various situations by different branches of US law, and
is designed to be easily interpreted to the lay public. These standards of proof
are equivalent to the degrees of certainty required of the evidence in various
legal situations. (A few of these criteria do not qualify as legal precedents, but
are sufficiently well defined to have a clear meaning to a lay audience.) The second
is a parallel scale based on a reconstruction of the practical scale of uncertainty
used by working research scientists in informal discussion. These scales are sum-
marized in Table 1, which compares them to each other and to the IPCC scale.
The author’s scales are somewhat novel and require some explanation. Each
of the standards of proof used to calibrate the scale corresponds to a well-defined
legal situation, as explained in detail in a separate publication (Id). Levels nine
and five of this “legal” scale are the familiar standards of criminal and civil
law, “beyond a reasonable doubt” and “preponderance of the evidence,” respec-
tively. Between these two familiar standards of proof lie less familiar but still
clearly defined standards of proof: “clear and convincing evidence,” “clear
showing,” and “substantial and credible evidence.” Specifically, “clear and
convincing evidence” is required in certain quasi-penal civil cases, such as dis-
barring an attorney, and a “clear showing” is required for the grant of a temporary
injunction.
Less rigorous than “preponderance of the evidence” are standards derived from
U.S. laws and cases governing search and seizure: “clear indication,” “reason-
able belief” (or “rational basis”), and “reasonable grounds for suspicion.”
“Reasonable belief” is grounds for arrest, search or seizure under the Fourth
Amendment to the U.S. Constitution, while “reasonable suspicion” is sufficient
grounds for a policeman to frisk a person for weapons prior to questioning, but
it is not enough to justify a search or an arrest. At the bottom of the scale are
“no reasonable grounds for suspicion” (a mere “hunch”) or just plain “impossible.”
This “legal” scale correlates well with the informal scale of uncertainty used
by scientists in choosing research projects and in discussing the state of under-
standing of a particular research problem among themselves. At the top of the scale
are well-established theories like those of relativity or evolution, or the structure
of DNA, which are classified as “well established.” More recent discoveries, like
the role of chlorofluorocarbons in giving rise to the ozone hole, may be consid-
ered “rigorously proven.” Other findings, like the extinction of the dinosaurs as
a result of the impact of a comet or asteroid, are “substantially proven” or “very
probable.” At lower levels of certainty are propositions for which normal proof
is lacking, but regarding which scientists, if pressed, would concede that a propo-
sition is “more probable than not,” “plausible,” or “possible.” At the bottom of
Table 1. Scales of scientific certainty.
Level Bayesian IPCC Scale Informal Scientific Scale Scale Based on Legal Legal Situation where
Probability Standards of Proof Standard of Proof Applies
10 100% (not in scale) Firmly Established, Has “Beyond any doubt” Exceeds Criminal Standard.
Stood the Test of Time
09 099% “Virtually Certain” Rigorously Proven “Beyond a reasonable doubt” Criminal Conviction
08 090–99% “Very Likely” Substantially Proven “Clear and Convincing Evidence” Quasi-Penal Civil Actions, such as
Termination of Parental Rights.
07 080–90% “Likely” Very Probable “Clear showing” Granting Temporary Injunction
06 067–80% “Likely” Probable “Substantial and Credible Evidence” Referring Evidence for Impeachment
05 050–67% “Medium Likelihood” “If I Must Choose, “Preponderance of the Evidence” Most Civil Cases
This Seems More
Probable Than Not.”
04 033–50% “Medium Likelihood” Evidence is Increasing “Clear Indication” Proposed as Criterion for Nighttime,
but Not Preponderant. X-Ray or Body Cavity Searches
03 010–33% “Unlikely” Plausible, Backed “Probable Cause”, Field Arrest; Search Incident to
by Some Evidence “Reasonable Belief” Arrest; Search Warrant; Arraignment
SCIENTIFIC UNCERTAINTY AND SCIENCE-BASED PRECAUTION
or Indictment
02 001–10% “Unlikely” Possible “Reasonable, Articulable Stop and Frisk for Weapons
Grounds for Suspicion”
01 0<1% “Very Unlikely” Unlikely “No Reasonable Grounds for Does not Justify Stop and Frisk
Suspicion,” “Inchoate Hunch”
00 000% (Not in scale) Violates Well Impossible Action Taken Could Not Possibly Have
Established Laws Resulted in the Crime Being Charged
143
144 CHARLES WEISS
the scientist’s scale are assertions deemed “improbable,” those that contravene
accepted paradigms and thus demand extraordinary evidence, and finally, those
that contradict well-established scientific laws and are therefore impossible.
Attitudes Toward Risk. As our second scale, we define five stereotyped approaches
to precaution, each of which embodies a different degree of risk acceptance or
aversion:
• The “scientific absolutist”

• The “technological optimist”
• The “environmental centrist”
• The “cautious environmentalist”
• The “environmental absolutist”
The scientific absolutist takes the stand that the Precautionary Principle was
originally developed to oppose: make no precautionary intervention until the danger
is scientifically proven. The environmental absolutist takes the opposite stand: take
no action until it is proven that it will cause no harm. The “technological optimist,”
the “environmental centrist,”and the “cautious environmentalist” take intermediate
positions.
Levels of International Intervention. Our third scale represents increasing levels

of international intervention in the face of threatened environmental danger:
• Reassure public & decision makers
• Research only if public opinion demands it
• Research & monitoring
• Ban low-benefit, high-damage actions
• “No regrets” measures
• Formal plans for strong measures; identify objectives and establish mechanisms
• Measures against most serious aspects
• Expensive, politically difficult measures
• Comprehensive measures
• “Whatever it takes”
Intervention as a Function of Uncertainty and Precaution. We are now ready to

examine Figure 1, which represents the various levels of intervention required
by each of the five approaches to precaution, as functions of the level of uncer-
tainty connected with (or equivalently, the standard of proof that would be satisfied
by) the scientific evidence for severe and irreversible damage to the environ-
ment. Each of the curves in Figure 1 corresponds to a different level of risk aversion
or acceptance.14
Reluctance to undertake precautionary action is represented by the strongly
concave curve #5, that of the scientific absolutist, on the right, while relative
Figure 1. International action to address shared danger of severe and irreversible harm, as a function
of the degree of scientific certainty and the degree of risk aversion. See Table 1 for definitions.
The scale of probability is non-linear and asymmetrical. Curves corresponding to different levels
of risk aversion are represented as follows:
1. Environmental absolutist
2. Cautious environmentalist
3. Environmental centrist
4. Technological optimist
5. Scientific absolutist
eagerness to undertake precautionary action is represented by the strongly convex

curve #1, that of the environmental absolutist, on the left. Between these curves
lie the functions representing the cautious environmentalist, the environmental
centrist, and the technological optimist, numbers 2, 3 and 4, respectively.
As might be expected, the five curves coincide at the very upper and lower ends
of the uncertainty scale. The functions differ at intermediate levels of uncertainty
– which are the levels where the science underlying most policy controversies
lies.
The scientific absolutist of curve #5 is something of a caricature today, but
was an important force when the Precautionary Principle was first enunciated. (S)he
would typically be a research scientist or a promoter of a particular technology,
and would argue that the project or product in question should be allowed to
146 CHARLES WEISS
proceed unless it had been shown to be dangerous to health or environment by

evidence that could satisfy the normal standards of proof used in research science.
In contrast, the environmental absolutist, curve #1, while continuing to monitor
and do research, would advocate plans for strong intervention even when the
scientific evidence reaches the 1%, or “hunch” stage. (S)he would advocate serious
precautionary measures even in response to suspicions of serious and irreversible
environmental damage (probability of <10%), and comprehensive measures once
there is clear evidence of danger, even if it is not preponderant. The “environmental
centrist” (curve #3 in Figure 1) would require a preponderance of the scientific
evidence for the first serious precautionary intervention, while the “technolog-
ical optimist” (curve #4) and the “cautious environmentalist” (curve #2) would
require somewhat more and somewhat less evidence, respectively.
Figure 1 and Table 1 are intended as tools for decision support, or failing that,
for clarifying areas of disagreement in international negotiations. They are intended
to make it easier for advocates and negotiators to separate technical discussions
over the level of scientific uncertainty connected with scientific evidence, from the
political and philosophical discussion of the degree of risk aversion (and hence,
the standard of proof ) to be applied in a particular case. (In practice, disagreements
over these two issues are frequently conflated, resulting in no little confusion.)
In principle, the contending parties may agree on the second question, the
standard of proof needed to justify a given level of intervention, but disagree on
the level of uncertainty associated with the particular set of scientific assertions
supporting the alleged environmental danger. Alternatively, the parties may agree
on the validity of the evidence, but may have different views on the proper
approach to Precaution, as represented by the difference between the curves in
Figure 1.
Standard of Proof Under Precaution

In our search for a pragmatic definition of the standard of proof applicable to envi-
ronmental situations involving scientific uncertainty, we turn first to experience.
This has arisen in three forms: in international negotiations concerning an emerging
global or regional environmental threat, in international trade disputes, and in
national decisions regarding the regulation or prohibition of a proposed action
threatening environmental harm. We consider each of these in turn.
International Negotiations Concerning Shared Environmental Threats. The best

test of the empirical meaning of the Precautionary Principle in the context of inter-
national law, would take place when the Principle had been incorporated into
the language of a treaty and thus formed part of a formal instrument of interna-
tional law. In this case, the pragmatic meaning of the Principle would become
apparent in the positions taken by the parties during treaty negotiations, in their
actions after the treaty is in force to implement it and to hold each other to
account for their actions under its provisions, in the resolution of Conferences
of the Parties to interpret or augment its language, and in the decisions of a dispute
resolution body.15
Absent such a case, the next best set of tests arises when governments have been
considering a treaty or other measure to establish a regime to remedy a situation
caused by past environmental insults, as for example global warming, damage
to the stratospheric ozone layer, or endangerment of species. Even if the
Precautionary Principle is not explicitly invoked as a guide to the design of the
treaty, or incorporated into its formal provisions, the level of proof required for
a decision to act may be taken as a measure of the standard of proof required
for precautionary action in the face of threatened danger.
We consider two environmental controversies that involve the general notion
of precaution and in which the issue of scientific uncertainty played an impor-
tant but by no means exclusive role: the historic controversy over the protection
of the stratospheric ozone layer, which eventually led to the negotiation of the
Montreal Protocol on Substances that Deplete the Ozone Layer, and in a brief
treatment, the negotiations regarding climate change. These cases provide an oppor-
tunity to examine the behavior of states in the complex political and economic
context of actual negotiations.
Depletion of the Stratospheric Ozone Layer and the Montreal Protocol. The
international response to the threat of chlorofluorocarbons to the stratospheric
ozone layer provides an important opportunity to analyze the response of the
international community to the gradual reduction of scientific uncertainty sur-
rounding a phenomenon that threatened serious and irreversible environmental
damage.16
The negotiations over international measures to protect the stratospheric ozone
layer were occasioned by two separate but related scientific discoveries: (1) that
CFCs cause a global decrease in stratospheric ozone, and (2) that the special
climatic circumstances of the Antarctic (and to a lesser extent of the Arctic as well)
cause a seasonal, geographically concentrated decrease in stratospheric ozone
known as the Ozone Hole. Table 2 correlates the progress in scientific under-
standing of these two aspects of stratospheric ozone depletion, on the one hand,
with the history of the measures undertaken to control the emission of ozone
destroying chemicals, particularly chlorofluorocarbons (CFCs), on the other.
Figure 2 provides a graphical representation of the data in Table 2. It super-
imposes heavy curves representing the state of scientific understanding of global
ozone depletion and of the Antarctic Ozone Hole, at the time of each of the
international interventions to protect the stratospheric ozone layer, over the thin
curves of Figure 1. These curves are broadly consistent with the archetype of
the “technological optimist” (curve #4). In detail, however, they illustrate the com-
plexity of the actual scientific and diplomatic history.
The first “no regrets” measures to protect the ozone layer, such as the banning
148
Table 2. History of the scientific understanding of the effects of chlorofluorocarbons on the stratospheric ozone layer, and of international interventions
to preserve it from destruction.
Year Advances in Scientific Understanding Advances in Scientific Understanding of Intervention

of the Global Ozone Layer, and the the Antarctic Ozone Hole, and the Level
Level of Uncertainty that CFCs Cause of Uncertainty that CFCs are its Cause
Serious Damage
1973 First research findings on danger

from CFCs (Reasonable Suspicion)
1977 Ban on CFCs as aerosols (Ban

Low-Benefit, High Damage Actions)
1984 Conflicting quantitative estimates Ozone hole discovered (Probable Cause)

of damage (Preponderance of Evidence)
1985 Vienna Convention (Formal Plans)
1986 Alternative theories for hole proposed

(Preponderance of Evidence)
1987 Wurtzburg meeting reconciles models Montreal Protocol (Most Serious Aspects)
(Clear and Convincing Evidence)
1988 NASA-WMO Expedition (Beyond

a Reasonable Doubt)
1990 London Measures (Comprehensive Measures)

CHARLES WEISS
Figure 2. History of international action to address depletion of the stratospheric ozone layer as a
function of scientific uncertainty associated with
Global Ozone Depletion (Solid Heavy Curve):
Antarctic Ozone Hole (Heavy Dotted Curve)
Heavy curves are superimposed on lighter curves corresponding to the levels of risk aversion dis-
played in Figure 1. Scales as in Figure 1.
of the frivolous uses of ozone-destroyers for aerosol hair spray propellents, were
taken when there was “reasonable suspicion” of severe and irreversible environ-
mental damage, i.e., reasonably soon after the discovery of the chemical mechanism
for ozone destruction was discovered but well before the extent of the actual
damage to the global ozone layer was well established. The first international agree-
ment on the subject, the Vienna Convention on the Protection of the Ozone Layer
of 1985, the framework convention establishing the principle that the danger to the
ozone layer was real and committing the parties to action, was concluded when
there was “preponderance of the evidence” that CFCs were the cause of global
stratospheric ozone destruction, but while there was still controversy over the
actual extent of the damage because of conflicting predictions from various
computer simulations. These actions are consistent with the “environmental
centrist” pattern.
The Montreal Protocol of 1987, which enacted the first substantial interna-
150 CHARLES WEISS
tional measures to control CFC emissions, was adopted after the previous con-
flicting predictions of global ozone destruction were shown to result from different
assumptions regarding the rate of future CFC emissions, and not from a lack of
understanding of the physical and chemical processes in the atmosphere.17 Even
so, the negotiators opted for a 50% decrease in CFC emissions – a political com-
promise not dictated by any scientific consideration but corresponding to “measures
against the most serious aspects” on the scale of Table 1. At this point, then, the
role of CFCs in global ozone destruction was “substantially proven” – a level of
proof associated with the “scientific absolutist.”
The negotiators at Montreal were also under strong pressure because of a new
and scary discovery, that of the Antarctic Ozone Hole. At the time of the Montreal
negotiations, there were still conflicting scientific theories as to the origin of
the Ozone Hole, so that the uncertainty connected to the role of CFCs in this
phenomenon was still at the level of “preponderance of the evidence” or (to a
scientist) “if I am forced to choose.” Subsequent scientific observations con-
firmed (“rigorously proved”) the role of CFCs in the origin of the Ozone Hole,
leading to the more comprehensive London Revised Control Measures of 1990.
Taken by itself, the reaction of the international community to the ozone hole
was that of an “environmental centrist.”
In summary, international negotiations on the depletion of stratispheric ozone
began close to the “environmental centrist” model, but shifted to “technological
optimism” at they progressed to definitive action.
Climate Change. The negotiations over global warming, although they took place
in a very different political context and involved much more complicated scien-
tific issues, are also consistent with the idea that international practice roughly
follows the “technologically optimistic” version of precaution.18 Here a framework
convention, the UN Framework Convention on Climate Change (UNFCC), was
concluded in 1992, by which time the IPCC had reported evidence for global
warming that may be rated as “substantial and credible.” A small but vocal group
of “climate skeptics” vigorously contested these findings on both substantive and
procedural grounds.
The Kyoto Protocol, the first international measure calling for specific measures
to decrease emissions of greenhouse gases, was concluded in 1997, by which
time the evidence had risen to the level of a “clear showing.” By the time of the
Conference of the Parties held in Marrakesh in November 2001, the IPCC report
offered “clear and convincing evidence” that global warming was a serious problem
requiring international action. The opposition of the scientific “climate skeptics”
had substantially waned, and the main arguments presented by the opponents of
intervention were based on economics rather than on natural science.
At Marrakesh, 178 nations adopted detailed rules for industrialized countries on
the reporting of emissions and a number of other measures for implementing the
Kyoto Protocol, leaving the US, which is the world’s major emitter of green-
house gases but which essentially boycotted the negotiations, in diplomatic iso-
lation. If we consider that the provisions of the Kyoto Protocol constituted the
first “measures against the most serious aspects,” these events indicate that states
implicitly adopt a “technologically optimistic” outlook, as expressed in the curves
of Figure 1.
This experience shows that a scientific consensus of “a clear showing” of serious
and irreversible environmental damage, while it cannot force sovereign states
to support intervention if they do not wish to do so, does generate major
diplomatic pressure for action. At the time of this writing, the United States
Administration had been forced to propose what it described as constructive
measures to deal with a problem whose existence it had at first denied.19 (President
Announces Clear Skies and Climate Change Initiatives 2002). The issue is still
evolving.
Trade Disputes. A second class of tests of the empirical meaning of the

Precautionary Principle arises from trade disputes in which environmental dangers
claimed to result from products involving a technology specific to one or a few
countries were invoked as a justification for trade restrictions that would other-
wise constitute illegal trade discrimination under the world trade regime. In such
a case, the proposed restriction may be challenged before the Dispute Settlement
Body (DSB) of the World Trade Organization, which may then be obliged to set
a standard of proof on which to base its decision.
Beef Growth Hormones. To date, the most important example of a challenge to

a trade restriction of this type has arisen from the dispute before the DSB between
the United States and Canada, on the one hand, and the European Communities
(EC), on the other, over the attempt by the EC to ban the importation of meat
derived from animals treated with certain growth hormones. Although the DSB
declined to adopt the Precautionary Principle as the basis for its decision and
did not make an explicit finding regarding the standard of proof under scientific
uncertainty, this case still constitutes the most serious effort by an international
dispute settlement body to deal with the issue of scientific uncertainty.20
In this case, the United States and Canada, the chief exporters of meat from
hormone-treated animals, argued that the EC import ban violated the Agreement
on the Application of Sanitary and Phytosanitary Measures (SPS), and thus con-
stituted a violation of the World Trade Organization treaty (WTO).21 The Dispute
Settlement Panel of the WTO decided the case in favor of the United States and
Canada. The decision of the Panel was upheld by the WTO Appellate Body, the
appellate branch of the DSB, although it overruled or modified the findings of
the Panel on certain points of law. The decision of the DSB is binding under
international law.22
The SPS Agreement, which forms part of the treaty establishing the World
Trade Organization, provides that “members have the right to take sanitary and
152 CHARLES WEISS
phytosanitary measures to the extent necessary for the protection of human . . .

life or health,” if such measures are “based on scientific principles and [are] not
maintained without sufficient scientific evidence.” The SPS further provides that
“members may introduce or maintain sanitary or phytosanitary measures which
result in a higher level of sanitary or phytosanitary protection than would be
achieved by measures based on the relevant international standards, . . . if there
is a scientific justification [for so doing . . .]” (Annex to Agreement Establishing
the World Trade Organization (1993)).23 The agreement also requires all SPS
measures to be based on a risk assessment, which is to “take account of avail-
able scientific evidence” (Id. at Articles 5.1 and 5.2.) The language of the SPS
agreement does not explicitly address the standard of proof required of the
scientific evidence presented in support of such measures.
The Appellate Body based much of its decision on the failure of the EC to
provide a risk assessment that “reasonably supports or warrants the import pro-
hibition.”24 (WTO Appellate Body 1998) In other words, the risk assessment
must “bear a rational and objective relationship to science.”25 In the framework
set forth in Table 1, the language used by the DSB clearly implies that a state
wishing to impose trade restrictive measures exceeding international standards must
carry out a risk assessment based on scientific evidence sufficient to create a
“reasonable belief ” that such a restriction is warranted. A mere hunch (a “super-
stition,” in the words of the EC brief ) is insufficient. This standard of proof
sets a balance between the sovereign right of a sovereign state to set its own
health standards and the right of the exporter (and the consumer) to be free of
arbitrary restrictions on trade. It is consistent with the US Administrative Practices
Act (see below) and indeed is close to the arguments put forward by the EC
in its brief to the DSB.26 It corresponds to the “cautious environmentalist” view
of Figure 1.
Ideally, as Walker argues, the standard of proof in these cases should be a matter
of law, as it is too important an issue to be left to case by case decisions by
dispute settlement panels and appellate bodies (Walker, 1998).27 International
practice, as illustrated by the Montreal Protocol and the Kyoto Protocol, is con-
sistent with the approach of “optimistic precaution,” whereas the DSB, at least
in its first approach to the issue, seems to be moving to the position of the “cautious
environmentalist.” For the time being, this may be the clearest resolution of the
issue that one may expect.
National Implementation of the Precautionary Principle. While the Precautionary

Principle is a principle of international rather than domestic law, the issues it
addresses are also addressed in domestic environmental law.28 What is more, the
implementation of the Precautionary Principle often takes place at the national
level. Indeed, precaution in the ordinary, nonlegal sense of the word, arguably
underlies the whole corpus of advanced country legislation and regulations on
environment, public health, and worker health and safety, in that far-reaching
decisions with impact on whole industries must be made on the basis of incom-
plete scientific understanding. A third set of tests of the empirical meaning of
the Precautionary Principle therefore lies in the standard of proof applied to national
decisions regarding the implementation of domestic environmental regulations. We
therefore explore domestic practice in the U.S. and Europe as to the standard of
proof applicable in these cases.
We turn first to Europe. Surprisingly, despite the relative seriousness with which
the Precautionary Principle is regarded in Europe as compared to the United States,
the experience of European courts is not much help in defining the necessary
standard of proof. Reviewing this experience to date, Sand finds no consistent
pattern in applying the Principle, even when it is specifically acknowledged to
be an important guideline for decision (Sand 1994).
In the United States, the implicit meaning of precaution emerges from the fact
that decisions on environment, public health, and worker health and safety are
subject to judicial or quasi-judicial review, and are frequently challenged in court
by those whose interests are adversely affected. These challenges frequently turn
on whether or not the scientific basis for the decision in question is sufficient to
justify intervention.29 For example, critical domestic environmental regulations –
the levels of arsenic permitted in drinking water, to cite a recent example – may
turn on epidemiological data that is subject to differing interpretations (National
Research Council 1999).
Given their importance, the standards of proof applicable to the scientific basis
of these decisions, and the interpretation put on these standards by the relevant
dispute settlement bodies, are disconcertingly vague. The US Administrative
Procedures Act requires only that administrative decisions have a “rational basis
in fact” and not be “arbitrary and capricious,” a standard that is susceptible to
differing judicial interpretations (Schwartz 1991 at 460; Gresham and Bloomfield
1995 at 1148).30
We would argue that the standard of a “rational basis” for decision, as speci-
fied in the US Administrative Procedures Act, corresponds to “reasonable grounds
for belief,” or a value of three on our proposed scale of uncertainty, or to 10–33%
subjective probability on the IPCC scale. To allow a regulation with possible major
economic effect to rest upon “reasonable suspicion,” the next lower level of relative
certainty, would be to open the way to a legal challenge that the action is an
“arbitrary and capricious” use of authority, in violation of the enabling statute.
To demand a stronger standard would be to deny the fact that administrative
interpretations of domestic law inevitably have a strong element of policy-based
discretion that is not easily limited by statute, but that at the same time must
rest on at least a plausible scientific argument.
154 CHARLES WEISS
The Standard of Proof, and the Burden of Proof, on a Proposed Action
Before continuing our analysis of the standard of proof under precaution, we

must briefly consider the matter of burden of proof. This is defined as the respon-
sibility to prove evidence and persuade the trier of fact. The standard of proof,
in contrast, is defined as the level of proof (or equivalently, the permissible level
of uncertainty) that must be reached for the evidence to satisfy the requirements
of a particular proceeding. Our later discussion will make it clear that the choice
of standard of proof depends on who bears the burden of proof.
The “strong” version of the Precautionary Principle asserts that the proponent
of a proposed action involving a possible danger to environment and human health
bears the burden of proving that the action is in fact safe. This can be straight-
forwardly applied to a specific project or undertaking that requires the approval
of some regulatory body. The proponent of such an action must typically submit
some kind of environmental impact statement or other justification to this national
regulatory body before (s)he can carry out the proposed action.
The national regulatory body that is supposed to implement the Precautionary
Principle is then faced with a political decision as to whether or not the proposed
action is to be permitted. To do so, it must weigh the (uncertain) scientific evidence
that the feared danger is in fact real, serious, and irreversible, along with a variety
of political, economic, social, cultural and even religious considerations. In most
advanced countries, the burden of proof would normally fall on the proponent to
prove that the proposed action is safe, as called for by strong Precaution.
Even this case, however, meets with complications at a later stage. In the United
States and in many other Western countries, this decision may be challenged in
court or in some other review procedure. Once a decision has been made to grant
the permission, the burden of proof to overturn the decision inevitably shifts to
the challenger, who must prove that the no reasonable trier of fact or decision
maker could have found that the proponent has met his or her burden of proof.
This conflicts with the Precautionary Principle, according to which the burden
of proof should remain with the proponent.31
In many other important situations where the Precautionary Principle might
be presumed to apply, the burden of proof is in effect on the challenger from
the beginning.32 The most obvious of these situations arises from international
environmental problems like climate change, the depletion of the stratospheric
ozone layer, or (more speculatively) endocrine disruptors. In each of these cases,
scientists first called the world’s attention to the possible environmental danger,
citing evidence that was subjected to skeptical tests before the international com-
munity was willing to address the asserted danger. Given that neither diplomats
nor the general public would ever have identified the problem on their own, and
that both had to be convinced that the problem was real, the burden of proof
was in effect on the scientists. Environmentalists also bear the burden of proof
in an important class of trade disputes, in which a country seeks to justify import
restrictions on the basis of environmental damage that is claimed to result from

the importation of a particular class of products (e.g., genetically modified foods)
that is exported by only one or a restricted set of countries.
If, on the other hand, the decision maker finds that no regulation is needed, (s)he
must have a reasonable belief that no such harm will result. What is the standard
of proof that must be met by the proponent? We would suggest that the require-
ment that (s)he end up with a reasonable belief that no harm will result, is
equivalent to a requirement that the proponent of the proposed action make a “clear
showing” of its safety. If you have made a clear showing of some proposition, I
should no longer have a reasonable belief that the opposite of that proposition is
true. Conversely, if I retain a reasonable belief in the opposite of the proposi-
tion, you have not made a clear showing. More generally, just as it is impractical
and unreasonable to expect environmentalists to satisfy the rigorous standards of
scientific research in demonstrating that a given action will result in environmental
harm, it is also impractical and unreasonable to expect the proponent of an action
to demonstrate its safety to the standards of scientific research.
Indeed, as a practical matter, it is impossible to demonstrate safety to beyond
a reasonable doubt. The ultimate decision maker must balance uncertain envi-
ronmental hazards against the likelihood of economic or other losses if the project
is delayed or canceled, even though there is always the possibility that further
research may turn up evidence for a previously unsuspected hazard. The most
reasonable standard of proof in such a case is therefore below the standards of
“beyond a reasonable doubt” or “clear and convincing evidence,” which we have
associated with the standards of research science, but rather corresponds to the
next lower standard, namely “clear showing.”
This proposed standard finds support by analogy to the U.S. domestic law of
evidence as it concerns preliminary injunctions. To see this, we consider the case
of a plaintiff in a civil suit who requests a preliminary injunction to take effect
until the time of a trial, on the grounds that (s)he will win the suit on its merits
and that the activities of the defendant will cause him or her irreparable harm in
the meantime. The parallel between the two cases is as follows. Both the plain-
tiff requesting an injunction and the proponent of action posing possible
environmental harm are requesting a favorable decision under conditions of incom-
plete information. Just as the proponent does not know for sure that full scientific
knowledge will not disclose some unsuspected environmental consequence, the
plaintiff in this case does not know for sure that (s)he will win the case at trial.
Alas, U.S. law does not give clear guidance as to the standard of proof to
which such a plaintiff is to be held. U.S. law on this point is not settled. But we
are dealing with the law as a source of ideas, not of settled precedent. In some
U.S. jurisdictions, the law offers a clear standard that applies nicely to the needs
of environmental precaution. In these jurisdictions, the standard for granting a
preliminary injunction is that the plaintiff must make a “clear showing” that the
action will succeed on its merits.33 We therefore propose that this standard of “clear
156 CHARLES WEISS
showing” be applied to cases in which the Precautionary Principle assigns the

burden of proof to the proponent of an action that poses the danger of damage
to the environment or human health.
We may apply similar criteria to the scientific evidence presented by a state
wishing to establish discriminatory trade barriers. In this case, a state reflecting
the risk aversion of a “scientific absolutist” would propose a standard of “clear
and convincing” evidence, a “technological optimist” would propose a standard
of a “clear indication,” an environmental centrist would propose a standard of “rea-
sonable belief,” a “cautious environmentalist” would require only “reasonable
suspicion,” and an “environmental absolutist” would insist that it could apply
regulations based on only a “hunch.” These standards may be derived from
Figure 1 by reading horizontally across the line labelled “measures against most
serious aspects.”
If a decision maker has decided to ban or regulate a proposed activity, then,
(s)he must have a reasonable belief, based on scientific evidence, that it will
harm environment or health. To successfully challenge this decision, the propo-
nent must show that no reasonable decision maker could have come to such a
conclusion. If we take such trade barriers to be comparable to the “measures against
most serious aspects” in Figure 1, this standard corresponds to the “cautious
environmentalist.”
The Emerging Moderate View of Precaution

In general, we find an emerging practice among states in their approach to global
environmental problems that tends toward the “technologically optimistic”
approach to Precaution portrayed in Figure 1. In international environmental
negotiations, we find an emerging practice to the effect that states have substan-
tial but limited discretion in interpreting scientific uncertainty to suit their political
or other objectives. They may bring heterodox views of science to international
negotiations if these are supported at least by a minority of respected and
credentialed experts. They may enact sanitary and phytosanitary measures that
amount to restraints of trade if these can be justified by evidence sufficient to create
a reasonable belief that they are protecting human health or safety.
On the other hand, there are substantial pressures against basing such actions
on a total disregard of the scientific method or of the consensus of the scientific
community. Governments may appoint scientists of their choosing to interna-
tional advisory panels, but these scientists must defend their opinions before
their peers and do not wish to risk ridicule. They may arrive at negotiations with
positions based on unorthodox scientific views, but risk diplomatic isolation and
public humiliation, both at home and abroad.
The Dispute Settlement Body of the WTO, on the other hand, in the one case
in point, as well as domestic US administrative law, seems to be pointing toward
an “cautious environmentalist” viewpoint. In each of these situations, decisions are
being taken on the basis of evidence that is less than a scientific consensus,
but that still must provide a reasonable basis for a proposed restriction. These
decisions must often rest on scientific evidence that falls short, not only of the
rigorous demands of research science, but even the much less severe standard of
“preponderance of the evidence.” On the other hand, such intervention must be
based at least on a reasonable belief that the feared danger is real, a centrist
view. Contrary to the absolutist view of Precaution, a mere suspicion or hunch will
not do. They may enact barriers to trade based on flimsy scientific evidence or
none at all, but risk adverse rulings by the World Trade Organization if they do
so.
This standard of proof strikes a balance between the requirement that deci-
sions be based on scientific knowledge, and the demands of domestic politics
and the international trade regime. Natural scientists may object that the proposed
standard of proof would require costly interventions before expert opinion is
convinced that a danger is real. We would reply that these objections are based
on an inappropriately technocratic view of governance that ignores the fact that
risk management involves at least as much politics as science. Proactive measures
undertaken under conditions of uncertainty are an ordinary and necessary part of
risk management – and in any case are likely to be demanded by an informed
public. One might argue that the public would be willing to wait for more certain
evidence – say to the standard of a “clear indication” – of environmental danger
before undertaking precautionary action, but it is unlikely that they would be
willing to wait for a preponderance of the evidence.
Some environmentalists, on the other hand, particularly those based in Europe,
might make the opposite argument, protesting that the requirement of “reason-
able belief ” places too high a barrier before those who wish to take precautionary
action. To this argument I would respond that it would be difficult to secure support
for – or indeed to defend – major international interventions or the undermining
of trade norms on the basis of mere suspicion.
As regards the burden of proof in issues of national environmental regulation,
actual practice seems to be headed toward a middle ground that puts the burden
of proof on the “polluter” (or more neutrally, the proponent of an action that
poses a possible danger of severe and irreversible environmental damage), but
accepts the practical fact that in many cases the actual burden falls on the advo-
cates of environmental intervention.
A Principle of Reasonableness
We now turn to the second major logical flaw in the Precautionary Principle,
namely that it offers no guidance in the choice among risks – the typical situa-
tion facing decision makers and negotiators.34 Most decisions do not offer a
choice between a risky intervention and a risk-free status quo. On the contrary,
the status quo may involve considerable risk; a future without genetically modified
158 CHARLES WEISS
crops, for example, may lead to starvation in some developing countries in a few
decades (Pinstrup-Anderson and Schioler 2001).35
In practice, the Precautionary Principle is usually invoked in favor of the status
quo and against a proposed project or technological innovation.36 The success of
the Precautionary Principle in rallying the environmental movement has given
rise to the danger that the development of important and useful technologies may
be stifled before there is a chance to appreciate and take advantage of their benefits
and to identify, understand and deal with their risks and dangers. This one-sided
application of the Precautionary Principle threatens to inhibit the development
and experimental application of techniques that will be essential for adaptive
management, based on experimentation and experience, which is essential for long-
term sustainable development.37 A countervailing principle is therefore needed
to ensure a better balance between caution and innovation.
We therefore propose a new Reasonableness Principle to stand alongside the
Precautionary Principle: that research and development on a new technology that
promises major benefits not be unreasonably blocked until the detailed implica-
tions of this technology are well understood.
The major purpose of the proposed Reasonableness Principle is to protect the
Precautionary Principle against overreach. This is not to say that the motives of
those who use the Precautionary Principle to block the development of tech-
nology until its negative aspects can be addressed are not genuine. But just as
the position of the sincere scientific absolutist was in some cases captured by
the polluter who wanted to avoid all controls regardless of the costs to society,
so the Precautionary Principle runs the danger of being captured by people who
simply wish to stop technological change or to protect unjustifiably inefficient
activities. Nor would the proposed Principle stifle the efforts of those who have
a specific desire to block the development of such technologies as stem cells or
genetic engineering on specifically religious or ethical grounds. On the contrary,
the proposed Principle does not inhibit them from advocating their views, even
at early stages of scientific research.
As part of this Reasonableness Principle, we further propose to incorporate
the results of the previous analysis: that in trade disputes in which the burden of
proof lies with the opponents to a proposed technological development, the applic-
able standard of proof should require these opponents to demonstrate that the
scientific evidence is sufficient to support a “reasonable belief ” that the proposed
action will actually cause environmental harm. Conversely, in cases in which the
burden of proof lies with the proponent of a proposed action, they should be
required to make a “clear showing” that this action is safe.
This standard of proof of “reasonable belief ” is consistent with emerging
practice in trade law for national decisions regarding discriminatory trade measures.
It is also consistent with the provisions of administrative law in the US and
Europe that govern regulations concerning the environment and public health.
The standard of “clear showing” is consistent with U.S. law governing pre-
liminary injunctions, the nearest domestic analogy to precautionary international

action.
A stronger standard of proof should govern precautionary intervention in cases
of claimed threats to the global or regional environment, such as climate change.
Formal international discussions to undertake anticipatory action to address an
international environmental problem should be begun when the preponderance
of scientific evidence indicates a danger of severe and irreversible harm. Broad
agreement in principle, as for example the negotiation of a framework conven-
tion, should be reached when the level of scientific evidence reaches the level
of “clear indication.” Agreement on specific proactive measures should be reached
by the time that the scientific evidence becomes “clear and convincing.” To be
sure, such negotiations depend on many factors over and above the state of the
scientific evidence. But to the extent that this evidence is controlling, these are
the standards of proof that should underlie the discussion.
Precaution and “Good Science”

The issue of standards of proof under conditions of scientific uncertainty is growing
in importance, as science-intensive policy issues become increasingly prominent
in the international agenda. To take just one example, agreed standards of proof
will be critical to the resolution of the present controversy over the importation
of genetically modified crops into the European Union, an issue of enormous com-
mercial and financial importance, and to an equally serious trade dispute hinging
on the possible role of synthetic chemicals on human fertility that may well be
just over the horizon (Colburn 1996).
It is therefore important that policy makers, and indeed the general public,
seek to express with some precision the level of scientific uncertainty connected
with a given scientific assertion, and the level of response to that uncertainty
dictated by alternative approaches to Precaution. There is a clear need for an
accepted framework and vocabulary for expressing the different levels of scien-
tific uncertainty, the different levels of international intervention, and the different
approaches to precaution. Such a framework would add precision to the general
admonitions of the Precautionary Principle, and to public discussions, regulatory
and judicial decisions, and international negotiations over the level of interven-
tion needed at different levels of scientific uncertainty. The scales of uncertainty
and intervention presented in this paper, and the functions that relate them
to various approaches to Precaution, are intended as tools to facilitate this
precision.
The standards of proof proposed in this paper are consistent with emerging
practice, and are reasonable compromises between the demands of scientific and
technological progress and those of environmental precaution under conditions
of scientific uncertainty. When the burden of proof lies with the proponent of an
action that may pose a risk of severe or irreversible harm, that proponent should
160 CHARLES WEISS
make a clear showing that no such harm will result. When the burden of proof
lies with the environmentalist, as in the case of trade disputes and international
negotiations to address shared environmental threats, it should suffice to create
a reasonable belief that severe or irreversible harm will ensue if no intervention
takes place.
As a broad approach that encompasses these proposals and expresses their
spirit in an easily understandable form, the paper further proposes a Principle
of Reasonableness that complements and balances the Precautionary Principle.
The Reasonableness Principle is designed to insure that valuable technologies
are subjected to reasonable limits, but that their development is not stifled before
their full implications are understood. It is intended to facilitate adaptive man-
agement of uncertainty – that is, learning from experimentation and experience.
No international agreement on the appropriate level of precaution in any
given situation appears to be on the horizon, however desirable such an agree-
ment might be. Even in the absence of any such agreement, however, international
practice in this area seems to be moving in a coherent direction. In different
ways and in different contexts, the practice described here seems to be a reliable
description of actions as different as the negotiations over the Kyoto Protocol
and the decisions of the Dispute Resolution Body of the World Trade Organization.
Even so, the political pressures to deviate from these principles are very
great – to ignore precaution in the name of innovation, on the one hand, and to
stifle needed innovation in the name of excessive precaution, on the other. The
Precautionary Principle (or if you prefer, the precautionary approach) will be much
more useful and effective if advocates and negotiators distinguish explicitly
between discussions of the uncertainty connected with a given body of scientific
evidence, and discussions of the standards of proof they regard as applicable to
this evidence – which is to say, their willingness to accept risk based on that
uncertainty.
“Good science” in international environmental decision making is not the same
as “good science” in the research laboratory. On the contrary, the standard of proof
governing scientific evidence in policy work of any kind must take into account
the fact that decisions must inevitably be made under conditions of uncertainty.
The level of this uncertainty, and the approach to that uncertainty, are important
inputs into the risk assessment that enters into any decision. Agreement on these
standards of proof may be too much to expect in the near term. But at least we
may hope for increased precision in language and concept.
“Good science” and precaution need not conflict. On the contrary, a scientific
outlook should support precaution, and precaution should be based on science.
“Science-based precaution” should be shorthand for proper risk management.
Acknowledgements
The author would like to thank Vincent Mareino for his excellent research
assistance.
Notes
01. For a general history of the Precautionary Principle, see Bernard A. Weintraub, “Science,
International Environmental Regulation and the Precautionary Principle: Setting Standards and
Defining Terms,” 1 N.Y.U. E NVTL. L. J. 173 (1992). For the many alternative statements of
the Precautionary Principle, see Timothy O’Riordan and Andrew Jordan, “The Precautionary
Principle in Contemporary Environmental Politics,” 4 ENVTL. VALUES 191 (1995) [hereinafter
Politics], James E. Hickey and Vern R. Walker, “Refining the Precautionary Principle in
International Law,” 14 VA. ENVTL. L. JOURNAL 423 (1995), and Mark P. A. Kindall, “UNCED
and the Evolution of Principles of International Law,” 25 JOHN MARSHALL L. REV. 23 (1991)
[hereinafter Evolution]. Per Sandin, “Dimensions of the Precautionary Principle,” 5 HUMAN
AND ECOLOGICAL RISK ASSESSMENT 889 (1999) cites no less than 19 different formulations of
the Precautionary Principle in various international agreements. For examples of the applica-
tion of the Precautionary Principle, especially in Europe, see Harrimoës (2002)
The legal status of the Precautionary Principle is still evolving, and there is still disagree-
ment as to whether it is a binding legal principle or an advisory approach. Edith Brown Weiss
et al., International Environmental Law and Policy (Gaithersburg MD: Aspen Law and Business,
1998), p. 156ff [hereinafter Law and Policy]. See also Peter Sand, “The Precautionary Approach:
A European Perspective,” 6 HUMAN AND ECOLOGICAL RISK ASSESSMENT 445 (2000) [hereinafter
European Perspective].)
02. Joel Tickner, Carolyn Raffensberger and Nancy Myers, “The Precautionary Principle in Action:
A Handbook,” available on the web via www.sehn.org/precaution.html, to www.sehn.org/rtfdocs/
handbook-rtf.rtf. See also Tickner (2003). All URLs cited in this article were verified by visits
on 10 May 2002.
03. See, for example, Henry I. Miller, “The Protocol’s Illusionary Principle,” 18 NATURE
BIOTECHNOLOGY 360 (2000).
04. An additional problem with the Precautionary Principle stems from the fact that its multiple
formulations differ in key details. Some formulations refer to “damage or harmful effects,” others
to “serious” harm, others to “serious and irreversible damage,” others to “global, irreversible
and trans-generational damage.” Some call for “cost-effective measures” or make some other
reference to costs, while others speak only of prevention of environmental damage. The dis-
cussion in this paper applies directly to dangers that are serious and irreversible, and does not
enter into issues of cost.
05. See Robert Paarlberg, “The Global Food Fight,” 79 FOREIGN AFFAIRS 24 (2000), Gordon Conway,
The Doubly Green Revolution: Food for All in the 21st Century (Ithaca NY: Comstock Publishing,
1998) and Per Pinstrup-Andersen and Ebbe Schioler, Seeds of Contention (Baltimore: Johns
Hopkins Press, 2001) [hereinafter Seeds].
06. At the United Nations Conference on Environment and Development, held in Rio de Janeiro
in 1992, the US government took the position that Precaution is not a binding principle of
international law, but rather a non-binding approach. This paper takes no stand on this issue,
and will arbitrarily refer to the Precautionary Principle, without prejudice to the opposing view.
07. Stone subjects the many variants of the Principle to exhaustive logical analysis in the light of
the concepts of decision theory and risk analysis.
08. A good review of the history and evolution of the Principle and its implementation is found in
162 CHARLES WEISS
James Cameron, Timothy O’Riordan and Andrew Jordan, Reinterpreting the Precautionary
Principle (London: Cameron, 2001), especially at 9–34 [hereinafter Reinterpreting].
09. The Treaty on European Union, Official Journal C340 11 October 1997 (Consolidated Version),
Title II, Article 174, clause 2: “Community policy on the environment . . . shall be based on
the precautionary principle and on the principle . . . that preventive action should be taken
. . .” Commission of the European Communities, “Communication from the Commission on
the Precautionary Principle” (February 2000) [hereinafter “Communication”], available on the
web at http://europa.eu.int/comm/dgs/health_consumer/library/pub/pub07_en.pdf.
10. For the status of the Precautionary Principle in international law, see European Perspective,
note 1 supra. For the decision of the Dispute Settlement Body of the World Trade Organization,
see footnotes 20–21 infra.
11. Politics at 197, footnote 1 supra. For a conservative view, see Julian Morris, “Defining the
Precautionary Principle,” in Julian Morris, ed., Rethinking Risk and the Precautionary Principle
(Oxford: Butterworth-Heineman, 2000).
12. The Wingspread Declaration is the declaration of a meeting of non-governmental experts held
in Wingspread WI in January 1998. See http://www.sehn.org/state.html.
13. See “Communication,” note 9 supra. A vague standard of proof was cited by the Second
International Conference on the Protection of the Sea, held 24–25 November 1987, which
called for precautionary action when pollution is “likely” to cause environmental damage, even
when scientific evidence does not prove a causal link. (Ministerial Declaration Issued by the
Department of the Environment of the United Kingdom, April 1988, cited in Evolution, see
footnote 1 supra.)
14. In effect, these curves constitute alternative approaches to the requirement set forth by the
European Union that a member country may take precautionary action “at the level of protec-
tion that it deems appropriate,” and that “measures should be proportional to the desired level
of protection.” The decision as to the appropriate degree of intervention in a given situation is
equivalent to a choice among these functions. See “Communication,” footnote 9 supra.
15. If the Precautionary Principle is to be regarded as customary international law, or as “soft law”
cited in non-binding declarations (like the Rio Declaration, footnote 6 supra), its pragmatic
meaning would be derived from the actions of states acting in what they believed to be con-
formity with the Principle (Law and Policy, footnote 1 supra, at 173).
16. The story of the parallel evolution of scientific understanding and international action is well told
in Edward A. Parson, “Protecting the Ozone Layer,” in Peter M. Haas, Robert O. Keohane,
and Marc A. Levy, Institutions for the Earth (Cambridge MA: MIT Press, 1993), pp. 27–72,
and in Richard E. Benedick, Ozone Diplomacy (Cambridge MA: Harvard University Press, 1991).
The correlations cited in Table 1 and Figure 1 are not meant to imply causality. Our section
on the ozone layer benefited from the excellent research assistance of Kevin Anchukaitis.
17. Ad Hoc Scientific Meeting to Compare Model Generated Assessments of Ozone Layer Change
for Various Strategies for CFC Control. Manuscript (Nairobi: UN Environmental Program, 1987).
The full name of the Montreal Protocol is the Montreal Protocol on Substances that Deplete
the Ozone Layer to the Vienna Convention for the Protection of the Ozone Layer.
18. For the history of the climate controversy and negotiations, see Social Learning Group, Learning
to Manage Global Environmental Risks (Cambridge MA: MIT Press, 2001).
19. “President Announces Clear Skies and Global Climate Change Initiatives,” http://www.white-
house.gov/releases/2002/02/20020214-5.html, 14 February 2002.
20. The WTO Appellate Body reviewed the status of the Precautionary Principle in international
law, especially from the point of view of trade law, in “EC Measures Concerning Meat and
Meat Products (Hormones),” WTO Appellate Body, WT/DS26/AB/R, 16 January 1998, footnote
92 [hereinafter Beef Hormones Case]. Available on line at the WTO website http://docson-
line.wto.org.
21. Beef Hormones Case, and World Trade Organization, EC Measures Concerning Meat and Meat
Products (Hormones), and WT/DS48/AB/R at 34. Cf. Footnote 20 supra.
22. Clear summaries of the history of the beef hormones case are found in Michele D. Carter, “Selling
Science Under the SPS Agreement: Accommodating Consumer Preference in the Growth
Hormones Controversy,” 6 MINN. J. GLOBAL TRADE 625, 626ff (1997), and in Dale E. McNiel,
“The First Case Under the WTO’s Sanitary and Phytosanitary Agreement: The European Union’s
Beef Hormone Ban,” 39 VA. ENVTL. J. 88 (1998). See also Lisa K. Sinsheimer, “The SPS
Agreement Applied: The WTO Beef Hormone Case,” 4 THE ENVTL. LAWYER 537 (1998).
23. Agreement Establishing the World Trade Organization, Annex 1A: Multilateral Agreements on
Trade in Goods – Agreement on the Application of Sanitary and Phytosanitary Measures, GATT
Doc. MTN/FA December 15, 1993, relevant excerpts reprinted as Appendix B to Edith Brown
Weiss and John H. Jackson, Reconciling Environment and Trade (Ardsley NY: Transnational
Publishers, 2001) [hereinafter Reconciling].
24. “EC Measures Concerning Meat and Meat Products (Hormones),” Beef Hormones Case, Para
208. See footnote 20–21 supra.
25. See Warren H. Murayama, “A New Pillar of the WTO: Sound Science,” 32 THE INT’L LAWYER
651, 670 (1998), available on line at http://www.hhlaw.com/publications/pdf/maruywto.pdf.
As regards the Precautionary Principle, the Appellate Body rejected the view put forward
by the EC that the Precautionary Principle can be used to justify restrictions on trade that do
not meet the requirements set forth in the explicit language of the agreement. On the other
hand, the language of the decision of the Appellate Body incorporates some of the key ideas
of the Precautionary Principle regarding scientific uncertainty, and indeed the Body held that
the Principle is embodied in the language of several paragraphs of the SPS agreement.
26. See Beef Hormones Case, footnotes 20–21 supra. Walker, a consultant to the EC, correctly argues
that the WTO can require only that there be a reasonable basis for the decision, and that it be
based on a “plausible” scientific account (See Vern Walker, “Keeping the WTO from Becoming
the World Trans-Science Organization: Scientific Uncertainty, Science Policy and Fact-Finding
in the Growth Hormones Dispute,” 31 CORNELL INT’L. L. J. 251 (1998)). Referring to his own
earlier work on standards of proof, Walker then argues that the Panel should apply a standard
of “preponderance of the evidence,” not to the evidence itself, but to the question of whether
the EC made its decision on a rational basis, so that the full standard would become that “more
likely than not there is a reasonable scientific basis for the choice [between plausible alterna-
tives]” (Id. at 291). This proposal would lower the standard of proof below any tolerable
minimum.
27. Id.
28. Strictly speaking, the Precautionary Principle is so far restricted to international law, so that
national governments dealing with domestic issues may be considered to be implementing it only
when they do so in presumed compliance with some international obligation.
29. See Sheila Jasanoff and Bryan Wynn, “Science and Decision Making,” in Steve Raynor and
Elizabeth L. Malone, Human Choice and Climate Change (Columbus O: Battelle Press, 1998),
vol. 1, pp. 1–77, and Reconciling, footnote 23 supra.
30. Bernard Schwartz, Administrative Law, 3d ed. (Boston: Little Brown, 1991), sec. 730, p. 460.
The similarity of SPS provisions to the “arbitrary and capricious” standard of US Administrative
Law is supported by Zane O. Gresham and Thomas A. Bloomfield, “Rhetoric or Reality: The
Impact of the Uruguay Round Agreement on Federal and State Environmental Laws,” 35 SANTA
CLARA L. REV. 1143, 1148 (1995).
31. If the decision is to regulate or ban a practice, and if that decision is challenged in court or in
some other reviewing procedure, it is normally up to the challenger to show that the regulation
bears no reasonable relationship to the underlying science and that the proposed action is in
fact safe. In this case, the burden of proof remains with the proponent, in a manner consistent
164 CHARLES WEISS
with the Precautionary Principle. See Tahoe-Sierra Pres. Council, Inc. vs. Tahoe Regional
Planning Agency, 122 S. Ct. 1465 (2002); 2002 U.S. Lexis 3028; 70 U.S.L.W. 4260; 15 Fla.
L. Weekly Fed. S 203, January 7, 2002, argued, April 23, 2002, decided.
32. This is acknowledged by the European Commission in “Communication,” footnote 9 supra.
33. See John Y. Gotanda, “The Emerging Standards for Issuing Appellate Stays,” BAYLOR L. REV.
45, 809 (1993), and Corpus Juris Secundum vol. 43A (St. Paul MN: West Publishing, 1978),
p. 449; Jack F. Friedenthal, Mary K. Kane and Arthur R. Miller, Civil Procedure, 3d ed.,
section 15.4, p. 719 (St. Paul MN: West Publishing, 1999). A different standard, that of “rea-
sonable probability,” is sometimes used in injunction cases; this is not appropriate to the
application of the Precautionary Principle.
34. In micro-economic theory, varying degrees of risk aversion are represented as a family of
utility functions of varying convexity, in which utility may be a time-dependent vector function
with several dimensions (e.g., wealth and environment, each a function of time). The decision
to intervene in the name of the Precautionary Principle may then be represented as a choice
between complex lotteries, each of which offers a time-dependent pay-off matrix of costs, benefits
and risks. (See David M. Kreps, A Course in Economic Theory (Princeton NJ: Princeton
University Press, 1990).)
35. Seeds, footnote 5. Even interventions intended to mitigate environmental risks – seeding
the Antarctic Ocean with iron salts, for example, to encourage plankton growth, sequester
carbon dioxide and lessen global warming – may involve major risks. See, for example, Robb
Stey and Brendan O’Donnell, “Ocean Fertilization: A Global Warming Panacea?” (Ann
Arbor MI: University of Michigan Global Change Project, 2000), available on the web at
http://www-personal.umich.edu/~rstey.
36. This is true despite the statement in “Communication” that “a comparison must be made between
the most likely positive or negative consequences of the envisaged action and those of inaction
. . .” See footnote 9 supra.
37. See National Research Council 1999. Ideally, the choice among risky alternatives involves a
balance among overall costs, risks, and benefits, each considered as a function of time, as well
as the equity issues arising from the question of who bears these costs and risks and who gains
the benefits. It would be possible to express this idea as a Principle, but it would be close to a
counsel of perfection and would lack the punch needed to balance the Precautionary Principle
in international discussions.
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International Environmental Agreements: Politics, Law and Economics 3: 137–166, 2003.

 2003 Kluwer Academic Publishers. Printed in the Netherlands.

Scientific Uncertainty and Science-Based Precaution

Accepted 23 December 2002

Abbreviations: CFC – chlorofluorohydrocarbon; DNA – desoxyribonucleic acid; DSB – Dispute

The Precautionary Principle

mitigation of expected harm, to cite a few (Treaty on the European Union

The Precautionary Principle as a Guide to Management and Policy

07 080–90% “Likely” Very Probable “Clear showing” Granting Temporary Injunction

• The “scientific absolutist”

Levels of International Intervention. Our third scale represents increasing levels

Intervention as a Function of Uncertainty and Precaution. We are now ready to

eagerness to undertake precautionary action is represented by the strongly convex

proceed unless it had been shown to be dangerous to health or environment by

Standard of Proof Under Precaution

International Negotiations Concerning Shared Environmental Threats. The best

Year Advances in Scientific Understanding Advances in Scientific Understanding of Intervention

1973 First research findings on danger

1977 Ban on CFCs as aerosols (Ban

1984 Conflicting quantitative estimates Ozone hole discovered (Probable Cause)

1985 Vienna Convention (Formal Plans)

1986 Alternative theories for hole proposed

1988 NASA-WMO Expedition (Beyond

1990 London Measures (Comprehensive Measures)

Trade Disputes. A second class of tests of the empirical meaning of the

Beef Growth Hormones. To date, the most important example of a challenge to

phytosanitary measures to the extent necessary for the protection of human . . .

National Implementation of the Precautionary Principle. While the Precautionary

The Standard of Proof, and the Burden of Proof, on a Proposed Action

Before continuing our analysis of the standard of proof under precaution, we

restrictions on the basis of environmental damage that is claimed to result from

showing” be applied to cases in which the Precautionary Principle assigns the

The Emerging Moderate View of Precaution

liminary injunctions, the nearest domestic analogy to precautionary international

Precaution and “Good Science”

Colburn, Theo (1996), Our Stolen Future. New York: Dutton.

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