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Deconstructing the Precautionary Principle

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 CHAPTER 16

Deconstructing the Precautionary Principle

Daniel Bodansky

If international environmental law were to develop Ten Commandments, the

precautionary principle would be near the top of the list. Like the proscriptions
against killing and theft, the precautionary principle is difficult to argue with.
Who would acknowledge that an action they support is reckless? Who would
prefer to be sorry than safe? As a result, the precautionary principle has become
a staple of international environmental agreements,1 and at least one court has
found it to be a rule of customary international law.2
But when we try to pin down exactly what the precautionary principle
means, matters become more difficult. The problem is not simply one of
vagueness—of applying an agreed norm in borderline situations. If this were the
extent of the problem, then notwithstanding our inability to define precaution,
we might still believe that we will know it when we see it. No, the problem is
more fundamental, reflecting confusion about the core meaning of the term. This
should not be surprising. For behind the simple allure of the precautionary
principle lie a host of difficult issues. When is precaution warranted? In what

1
See ARIE TROUWBORST, EVOLUTION AND STATUS OF THE PRECAUTIONARY PRINCI-
PLE IN INTERNATIONAL LAW 63 et seq. (2002) (precautionary principle has been incorpo-
rated in over fifty multilateral agreements).
2
Id. at 223-25 (discussing Indian Supreme Court decision in the Vellore case).

381

D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters, 381-91.
© 2004. Koninklijke Brill N.V. Printed in the Netherlands.
382 Daniel Bodansky

ways should we be cautious? And how cautious should we be?3 Different

international instruments have answered these questions in very different ways.4
Indeed, states cannot even agree on what to call the norm or whether it is a legal
requirement. Some international instruments refer to a precautionary principle,
others to a precautionary approach, reflecting the view of the United States that
precaution is not a legal norm at all but rather a general policy orientation.5
Similarly, some formulations use mandatory language (“shall”) in characterizing
the precautionary principle, others use hortatory language (“should”).6
This paper will undertake the limited task of surveying the various dimen-
sions along which formulations of the precautionary principle vary. It will not
assess, from a policy perspective, which version of the precautionary principle,
if any, makes sense,7 or whether the precautionary principle has become a
principle of customary international law.8 Nevertheless, the differing definitions
3
For an excellent discussion of these difficulties, see Christopher D. Stone, Is There
a Precautionary Principle, 31 ENVTL. L. REP. 10790 (2001).
4
David VanderZwaag, The Precautionary Principle in Environmental Law and
Policy: Elusive Rhetoric and First Embraces, 8 J. ENVTL. L. & PRAC. 355 (1999)
(identifying 14 formulations of the precautionary principle in multilateral agreements and
declarations).
5
TROUWBORST, supra note 1, at 4-6. A number of international instruments follow
the U.S. terminology, referring to the precautionary approach rather than the precaution-
ary principle. See, e.g., Convention on the Conservation and Management of Highly
Migratory Fish Stocks in the Western and Central Pacific Ocean, art. 6, Sept. 5, 2000;
Stockholm Convention on Persistent Organic Pollutants, art. 1, May 22, 2001,
UNEP/POPS/ CONF/2, reprinted in 40 ILM 532 (2001).
6
Compare Barcelona Convention for the Protection of the Mediterranean Sea
against Pollution, Feb. 16, 1975, as amended June 10, 1995 (amendment not yet in force)
(“shall”); U.N. Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks,
art. 5(c), Aug. 4, 1994, U.N. Doc. A/CONF.164/38, reprinted in 34 ILM 1542 (1995)
(not yet in force) (same) with 1994 Sulphur Protocol to the 1979 Convention on Long-
Range Transboundary Air Pollution, June 14, 1994, preamble para. 4, reprinted in 33
ILM 1540 (1994) (“should”).
7
For critical assessments of the precautionary principle on policy grounds, see Jona-
than H. Adler, More Sorry than Safe: Assessing the Precautionary Principle and the
Proposed International Biosafety Protocol, 35 TEXAS INT’L L.J. 173 (2000); Daniel
Bodansky, Scientific Uncertainty and the Precautionary Principle, 33 ENVT. 4 (1991);
Frank Cross, Paradoxical Perils of the Precautionary Principle, 53 WASH. & LEE L.
REV. 851 (1996); Stone, supra note 3.
8
In the World Trade Organization’s Beef Hormones case, the European Union ar-
gued in favor of the customary law status of the precautionary principle, while the United
States argued against it. World Trade Organization, EC Measures Concerning Meat and
Meat Products (Hormones), ¶ 16, 43, 60, AB-1997-4, Report of the Appellate Body,
Doc. No. WT/DS26/AB/4, WT/DS48/AB/R (Jan. 16, 1998) [hereinafter Beef Hormones
case]. Notwithstanding the EU position in the Beef Hormones case, individual European
countries (including France and the United Kingdom) have argued against the customary
law status of the precautionary principle when this suits their interests. See Peter H. Sand,
The Precautionary Principle: A European Perspective, 6 HUMAN & ECOLOGICAL RISK
ASSESSMENT 448 (2000). On the customary law issue, see generally Daniel Bodansky,
Customary (and Not So Customary) International Environmental Law, 3 INDIANA J.
GLOBAL LEG. STUD. 105 (1995), McIntyre & T. Mosedale, The Precautionary Principle
as a Norm of Customary International Law, 9 J. ENVTL. L. 221 (1997).
 Deconstructing the Precautionary Principle 383

of the precautionary principle, and their generally platitudinous quality, suggest

that the precautionary principle may not take us very far in addressing specific
environmental problems.9

I. What Legal Function Does the Precautionary

Principle Serve?
The precautionary principle first appeared in an international instrument in
1987, but the idea of precautionary action has a much longer history in both
national and, to some extent, international law.10 It originated in the context of
marine pollution, but now is applied across the entire range of international
environmental law.
Although the precautionary principle is often treated as a single concept, it
can serve three quite different legal functions, which are important to distinguish
at the outset. Some formulations of the precautionary principle operate in a
purely negative way, to exclude certain justifications for inaction. Others operate
as a license to act; they permit but do not require precautionary measures. Still
others create a positive duty to take precautionary action. In analyzing different
formulations of the precautionary principle, it is vital to understand which of
these three functions they serve.

A. The Precautionary Principle as a Reason not to Postpone Action

due to Scientific Uncertainty

The most common formulation of the precautionary principle is as an exclusion-

ary reason. Traditionally, international agreements tended to make environ-
mental action dependent on scientific evidence.11 For example, the 1974 Paris
Convention for the Prevention of Marine Pollution from Land-Based Sources
calls for regulation “if scientific evidence has established that a serious hazard
may be created . . . and if urgent action is necessary.”12 The precautionary
principle represents a rejection of this belief that environmental action must
await scientific proof.
As Christopher Stone notes, formulations of the precautionary principle
along these lines articulate a triple negative: lack of scientific certainty is not a
reason not to act. Principle 15 of the Rio Declaration on Environment and

9
For a more detailed elaboration of these conclusions, see Stone, supra note 3, at
10799 (“questioning the claim that there is a precautionary principle there”).
10
Sand, supra note 8.
11
See, e.g., International Convention for the Regulation of Whaling, art. V(2)(b);
Dec. 2, 1946 (amendments of the Schedule shall be “based on scientific findings”);
London Convention on the Prevention of Dumping of Hazardous Wastes and Other
Matter, art. XV(2), 13 Nov. 1972, 1046 UNTS 120 (entered into force August 30, 1975)
(amendments will be based on “scientific or technical considerations”).
12
Convention for the Prevention of Marine Pollution from Land-Based Sources, art.
4(4), June 4, 1974, reprinted in 13 ILM 352 (1974).
384 Daniel Bodansky

Development is perhaps the best known example of this approach: it states that
“lack of scientific certainty shall not be used as a reason for postponing cost-
effective measures to prevent environmental degradation.”13 Similar formula-
tions can be found in the U.N. Framework Convention on Climate Change14 and
the IUCN Draft International Covenant on Environment and Development.15
Other similar provisions include:
x The decision by the Ninth Conference of Parties to the Convention on
International Trade in Endangered Species, stating that “scientific un-
certainty shall not be used as a reason for failing to act in the best inter-
est of the conservation of the species.”16
x The preamble to the Convention on Biological Diversity, which de-
clares that “where there is threat of significant reduction or loss of bio-
logical diversity, lack of full scientific certainty should not be used as a
reason for postponing measures to avoid or minimize such a threat.”17
x Article 6(2) of the Straddling Stock Convention, which states: “The
absence of adequate scientific information shall not be used as a reason
for postponing or failing to take conservation and management meas-
ures.”18
Article 8(7)(a) of the Stockholm Convention on Persistent Organic Pollut-
ants, which provides that “lack of full scientific certainty shall not prevent [a]
proposal [to list a chemical] from proceeding.”19
Note that, in all of these formulations, the precautionary principle does not
create any affirmative duty to take environmental action. If such a duty exists, it
must come from elsewhere. Instead, the effect of the precautionary principle is
purely negative: States may, for other reasons, decide not to act, but they should
not use scientific uncertainty as an excuse for inaction.

13
Rio Declaration on Environment and Development, principle 15, June 14, 1992,
U.N. Doc. A/Conf.151/5/Rev.1 (1992), reprinted in 31 I.L.M. 874, 879 (1992).
14
U.N. Framework Convention on Climate Change, art. 3.3, May 29, 1992, 1771
U.N.T.S. 107, reprinted in 31 I.L.M. 849 (1992) (entered into force March 21, 1994).
15
Draft International Covenant on Environment and Development, IUCN Environ-
mental Policy and Law Paper No. 31, at 40 (1995).
16
Resolution of the Conferences of the Parties, Criteria for Amendment of Appendi-
ces I and II, Ninth Meeting of the Conference of the Parties, Fort Lauderdale (USA),
Nov. 7-18, 1994, Com. 9.24 [hereinafter CITES decision].
17
Convention on Biological Diversity, preamble para. 9, June 5, 1992, 1760 UNTS
79, reprinted in 31 ILM 818 (1992) (entered into force Dec. 29, 1993).
18
Straddling Stocks Convention, supra note 6, art. 5(c).
19
POPs Convention, supra note 5, art. 8(7)(a). An expert group convened by the
Commission on Sustainable Development to identify principles of international law
formulated the precautionary principle in similar terms. Report of the Expert Meeting on
Identification of Principles of International Law for Sustainable Development, Geneva,
Switzerland, Sept. 26-28, 1995, Background Paper No. 3 for the 4th Session of the
Commission on Sustainable Development, New York (April 1996) [hereinafter CSD
Expert Group].
 Deconstructing the Precautionary Principle 385

B. The Precautionary Principle as a License to Act

In the trade context, the precautionary principle serves a different legal function;
it operates as a license to act. In effect, the precautionary principle provides a
justification for taking environmental measures that might otherwise be
questionable as disguised barriers to trade.20 Consider, for example, the articula-
tion of the precautionary principle in the 2000 Biosafety Protocol:
Lack of scientific certainty due to insufficient relevant scientific information and
knowledge . . . shall not prevent [a] Party from taking a decision, . . . in order to
minimize [the] potential adverse effects [of a living modified organism on the
conservation and sustainable use of biological diversity in the Party of import].21
Here the precautionary principle arguably operates as a justification for the
imposition of import restrictions on living modified organisms that otherwise
might fall afoul of the WTO Sanitary and Phytosanitary Measures (SPS)
Agreement, which requires states to base SPS measures on risk assessment and
to apply those measures only to the extent necessary to protect human, animal
and plant life or health.22 Under the Biosafety Protocol formulation, the precau-
tionary principle does not require the importing state to impose any restrictions.
Whether the importing state decides to do so is purely a matter of its discretion.
The precautionary principle merely seeks to remove a legal barrier that might
otherwise stand in its way.
In the Beef Hormones case, the European Union invoked the precautionary
principle in this manner, to justify a ban on the import of beef produced from
cattle that had been fed growth hormones.23 Although the EU could not prove
scientifically that beef growth hormones pose a threat to human health, it
attempted to justify its measures on precautionary grounds, arguing that, in case
of scientific uncertainty, countries should not be precluded from taking action.
While the WTO appellate body did not accept that the precautionary principle
justifies measures that would otherwise be inconsistent with trade rules, it
recognized that the SPS Agreement itself allows governments to take precau-
tionary action, on a provisional basis, in the face of scientific uncertainty.24

20
See generally CENTER FOR INTERNATIONAL ENVIRONMENTAL LAW, THE LEGAL
IMPLICATIONS OF THE PRECAUTIONARY PRINCIPLE FOR MULTILATERAL TRADE RULES,
unpublished paper (March 22, 2000).
21
Cartagena Protocol on Biosafety to the Convention on Biological Diversity, art.
11.8, Jan. 29, 2000, UNEP/CBC/ExCOP/1/L.5, reprinted in 39 ILM 1027 (2000).
22
WTO Agreement on the Application of Sanitary and Phytosanitary Measures
(SPS Agreement), April 15, 1994, arts. 5.1 (requiring parties to base their SPS on risk
assessment), id. art. 2.2 (requiring parties to apply SPS measures only to the extent
necessary to protect human, animal and plant life or health). However, this interpretation
of Article 11.8 of the Biosafety Protocol is undercut by the inclusion of a “savings
clause” in the Protocol, which “emphasizes” that the Protocol shall not be interpreted as
“implying a change in the rights and obligations of a Party under any existing interna-
tional agreements.” Biosafety Protocol, preamble, para. 10.
23
Beef Hormones case, supra note 8.
24
Id. at para. 124. Article 5(7) of the SPS agreement allows states to adopt sanitary
or phytosanitary measures on a provisional basis in cases where relevant scientific
386 Daniel Bodansky

C. The Precautionary Principle as a Duty to Act

By far the strongest versions of the precautionary principle are those that create
a duty to act. Some of these formulations articulate the duty in general terms, as
a duty to take preventive measures even in cases of uncertainty. The 1992 Baltic
Sea Convention, for example, provides that states “shall ... take preventative
measures when there is a reason to assume that substances or energy introduced,
directly or indirectly, into the marine environment, may create hazards to human
health, harm living resources and marine ecosystems, damage amenities or
interfere with other legitimate uses of the seas even when there is no conclusive
evidence of a causal relationship between inputs and their alleged effects.” 25
Along similar lines, one commentator argues that the precautionary principle
“dictates that in the face of environmental hazards, ... preventive and abatement
action must be taken even where uncertainty of whatever nature remains.”26
Other formulations of the precautionary principle create more specific duties.
For example, a resolution adopted under the Paris Convention for the Prevention
of Marine Pollution from Land-Based Sources provides that, when a defined
threshold of risk is crossed, states should use “best available technology” to
reduce polluting emissions at source.27 The World Charter for Nature also calls
for the use of “best available technologies” to minimize significant risks to
nature.28 The Bamako Convention contains an even more general duty on Parties
to prevent the release into the environment of harmful substances.29 These duties
will be explored in greater detail in section III.2 below.30

II. The Trigger: When Is a Precautionary

Approach Warranted?
Regardless of the legal function served, formulations of the precautionary
principle have the same basic structure: if a threshold of risk is crossed (the

evidence is insufficient, while seeking additional information in order to make a more

objective assessment of risk.
25
Helsinki Convention for the Protection of the Marine Environment of the Baltic
Sea Area, art. 3(2), April 9, 1992; see also Bergen Declaration (“Environmental
Measures must anticipate, prevent and attack the causes of environmental degradation.”)
26
TROUWBORST, supra note 1, at 286.
27
PARCOM Recommendation 89/1 on the Principle of Precautionary Action, June
22, 1989.
28
World Charter for Nature, para. 11, Oct. 28, 1982, UNGA Res. 37/7, U.N. Doc.
A/Res/37/7 (1982), reprinted in 22 I.L.M. 455 (1983).
29
Bamako Convention on the Ban of the Import into Africa and the Control of
Transboundary Movement and Management of Hazardous Wastes within Africa, art.
4(3)(f), Jan. 29, 1991, reprinted in 30 ILM 773, 781 (1991).
30
Some of the formulations are very tentative as to whether there is any duty to take
precautionary action. For example, the expert group convened by the Commission on
Sustainable Development to examine principles of international environmental law
concluded only that the precautionary principle “could” require that harmful activities be
regulated. CSD Expert Group, supra note 19, at para. 72.
 Deconstructing the Precautionary Principle 387

trigger), then a precautionary approach is warranted (the response). Both sides

of this equation, however, have many possible values, which are reflected in
different versions of the principle.
Consider, first, the trigger. Under what circumstances are precautionary
measures warranted? In answering this question, three factors may be relevant:
(1) the severity of the potential harm, (2) the likelihood or evidence of that harm,
and (3) the source of the harm.

A. Severity of Potential Harm

Most formulations of the precautionary principle limit its application to threats
that raise special environmental concerns because of their magnitude and/or
type.31 Among the standards that have been put forward are the following:
Persistence, toxicity and liability to bioaccumulate—Three years after the
Second North Sea Conference articulated the precautionary principle in terms of
protection against the damaging effects of the most dangerous substances, the
Third North Sea Conference identified three characteristics that make substances
particularly dangerous and that therefore warrant application of the precaution-
ary principle: persistence, toxicity and liability to bioaccumulate.32 The North
Sea Ministerial Declaration provided that countries should take action to avoid
potentially damaging impacts of substances with these three characteristics, even
when there is no scientific evidence to prove a causal link between emissions
and effects.
Serious or irreversible harm—The Rio Declaration on Environment and
Development enunciates the most widely-used trigger for the precautionary
principle, namely a threat of “serious or irreversible damage.”33 This formulation
suggests that harms with either of two characteristics can trigger application of
the precautionary approach: (1) high intensity or geographical scope or (2) a
very long time scale. A UNEP group meeting gave as examples of “serious or
irreversible harm,” “extinction of species, widespread toxic pollution or major
threats to essential ecological processes.”34
In contrast to these formulations that make the precautionary applicable only to
serious environmental harms, the Bamako Convention on Hazardous Wastes in
Africa adopts a much broader standard, which urges states to prevent the release

31
For example, the very first international articulation of the precautionary princi-
ple, in the Final Declaration of the Second North Sea Conference, spoke of protecting the
North Sea against the “possibly damaging effects of the most dangerous substances.”
Second International Conference on the Protection of the North Sea: Ministerial
Declaration Calling for Reduction of Pollution, art. VII, Nov. 25, 1987, reprinted in 27
ILM 835 (1988) (emphasis added).
32
Declaration of the Third International Conference on Protection of the North Sea,
March 7-8, 1990, reprinted in 1 Y.B. INT’L ENVTL. L. 658, 662-73 (1990).
33
Rio Declaration, supra note 13, principle 15. Irreversibility is identified as a cause
for concern in many international instruments, including the World Charter for Nature.
34
UNEP, Final Report of the Expert Group Workshop on International Environ-
mental Law Aiming at Sustainable Development, ¶ 47, Doc. No. UNEP/IEL/WS/3/2 (Oct.
4, 1996) [hereinafter UNEP Expert Meeting].
388 Daniel Bodansky

into the environment of any substance that “may cause harm to humans or the
environment,”35 without any specification of a minimum level of risk or any
explicit de minimis exception.36

B. Evidence of Harm

Although formulations of the precautionary principle vary significantly, the one

fixed star in the precautionary firmament is that scientific certainty is not a
prerequisite for environmental action and, conversely, that lack of scientific
certainty does not justify inaction. But this leaves open the question: Is any
scientific evidence at all required of a potential threat before precautionary
action is warranted, or justified, or required? And, if so, how much evidence? Or
can mere speculation or fear trigger application of the precautionary principle?
Negative formulations—Many if not most articulations of the precautionary
principle do not go beyond a purely negative formulation: they define the type
of evidence or proof that is not required (“full scientific certainty,”37 “absolutely
clear scientific evidence”38 “conclusive evidence”39), but do not define what
positive evidence of an environmental risk is needed in order to trigger applica-
tion of the precautionary principle. In themselves, these negative formulations
seem unexceptionable. “Full scientific certainty” or “absolutely clear scientific
evidence” is rarely if ever achievable, so requiring such evidence as a prerequi-
site for action would be unreasonable. But, without an articulation of what
evidence is needed of a potential threat, these standards seem to suggest that the
precautionary principle is applicable whenever there is uncertainty—which, in
effect, means always.
Positive formulations—A purely negative evidentiary standard may be appropri-
ate when the precautionary principle is intended only to exclude the use of
uncertainty as an excuse for inaction. But, to the extent that the precautionary
principle is used to justify or require environmental action, then a purely
negative evidentiary standard is inadequate. For example, if the precautionary
creates a duty to prevent “serious or irreversible” threats, then we need to know
how much evidence is required that a threat is, in fact, “serious or irreversible.”
Existing formulations of the precautionary principle address this issue only in
broad, qualitative terms. The Baltic Sea Convention, for example, requires that
there be “reason to assume” that an activity is risky, 40 while a UNEP expert

35
Bamako Convention, supra note 29, art. 4(3)(f).
36
Trouwborst claims that it is an open question “whether . . . [the precautionary
principle] requires a certain threshold of gravity of likely harm to be met for the
principle’s application to be triggered.”). Supra note 1, at 286.
37
E.g., Bergen Declaration on Sustainable Development in the ECE Region, para. 7,
May 16, 1990, U.N. Doc. A/CONF.151/PC/10, reprinted in 1 Y.B. INT’L ENVTL. L. 430
(1990).
38
E.g., Second North Sea Declaration, supra note 31, art. VII.
39
Convention for the Protection of the Marine Environment of the North-East Atlan-
tic, art. 2(2)(a), Sept. 22, 1992, reprinted in 32 ILM 1069 (1993).
40
Baltic Sea Convention, supra note 25, art. 3(2) (must be “reason to assume” that
substances are hazardous); North East Atlantic Convention, art. 2(2)(a) (same).
 Deconstructing the Precautionary Principle 389

group on environmental that the risk must be “identifiable.”41 These formula-

tions suggest that mere speculation is not enough to trigger application of the
precautionary principle, but do not define the quantum of evidence required
more precisely.42

C. Source of Potential Harm

A final basis for narrowing the scope of the precautionary principle is to limit it
to new activities or technologies. Such an approach could be justified on
environmental grounds (the risks of new activities are in general less well
understood than existing activities, making precaution appropriate) or on
pragmatic grounds (it is more difficult to stop something that is already under-
way than something that has not yet begun). Thus far, none of the formulations
of the precautionary principle has explicitly taken this approach. But to the
extent that an international agreement containing the precautionary principle
focuses on new activities, then the scope of the principle will, in effect, be
limited in this way.

III. The Response: What Constitutes a

Precautionary Approach?

A. To Whom Does the Precautionary Principle Apply?

Ordinarily, international norms apply to the individual states that have accepted
them. But some formulations of the precautionary principle suggest that it is
instead addressed to states collectively in their efforts to develop and apply
international environmental law.43 The premise seems to be that, just as, in
certain circumstances, individual countries should not use scientific uncertainty
as a reason to postpone action, sometimes parties to a treaty should not do so
either. For example, the decision by the CITES parties to incorporate the
precautionary principle into the listing procedure for threatened or endangered
species provides: “When considering any proposal to amend Appendix I or II,
the Parties shall apply the precautionary principle so that scientific uncertainty
should not be used as a reason for failing to act in the best interest of the

41
UNEP Expert Meeting, supra note 34, ¶ 47.
42
In several German cases questioning the safety of electromagnetic fields from
cellular phone networks, German administrative courts have distinguished actionable
risks from mere “concerns.” See Sand, supra note 8, at 450. The WTO Appellate Body
has also taken the view that, in order to adopt SPS measures, there must be an ascertain-
able risk to human or animal life. Australia - Measures Affecting Importation of Salmon,
AB-1999-5, Report of the Appellate Body, Doc. No. WT/DS18/AB/R (Oct. 20, 1998),
available at <http://www.wto.org>.
43
See also CSD Expert Report, supra note 19, para. 72 (“The principle provides
guidance for the development and application of international environmental law.”).
390 Daniel Bodansky

conservation of the species.”44 Along similar lines, the preamble to the Montreal
Protocol states the determination of the parties to take “precautionary measures
to control equitably total global emissions of substances that deplete [the ozone
layer].”45

B. What Constitutes Precautionary Action?

Undoubtedly the most difficult question raised by the precautionary principle

concerns its substantive implications. Previously, we considered the possible
legal ramifications of the precautionary principle. Now, we need to consider,
from a substantive standpoint, what concrete policies or measures constitute a
precautionary approach.
Many formulations of the precautionary principle are, of course, silent on this
question. They merely state that uncertainty is not a basis to postpone action; but
they do not indicate what types of action might be considered precautionary.
But some formulations do articulate substantive elements of a precautionary
approach:
x Preventive action—The most common articulation of a precautionary
approach is in terms of preventative action. The World Charter for Na-
ture, for example, provides that activities that “are likely to cause irre-
versible damage to nature shall be avoided.”46 Similarly, the Bergen
Declaration states that “environmental measures must anticipate, pre-
vent and attack the causes of environmental degradation.”47 Unless
these general statements are intended to create an absolute duty of pre-
vention, however, they leave many important questions open, includ-
ing, in particular, whether the environmental benefits of action should
be weighed against the economic costs.
x Shifting the burden of proof—Rather than create an absolute duty of
prevention whenever an activity creates a risk of environmental harm,
some versions of the precautionary principle simply shift the burden of
proof. Traditionally, international environment law placed the burden
on the person opposing an activity to prove that it would damage the
environment. Some versions of the precautionary approach would re-
verse this, placing the burden on proponents of an activity to prove that

44
CITES decision., supra note 16; see also International Convention on the Control
of Harmful Anti-Fouling Systems on Ships, Oct. 18, 2001, art. 6(3), IMO Doc.
AFS/CONF/26 (IMO Marine Environment Protection Committee shall apply the
precautionary principle in considering proposed amendments to controls of anti-fouling
systems).
45
Montreal Protocol on Substances that Deplete the Ozone Layer, preamble, Sept.
16, 1987, 1522 UNTS 3 (entered into force Jan. 1, 1989).
46
World Charter, supra note 28, para. 11.
47
Bergen Declaration, supra note 37, para. 7. See also Baltic Sea Convention, supra
note 25, art. 2(5)(a) (defining “precautionary principle” in terms of “taking preventative
measures when there is reason to assume that a substance . . . may create hazards to
human health, harm living resources and marine ecosystems, damage amenities or
interfere with other legitimate uses of the sea”).
 Deconstructing the Precautionary Principle 391

it is safe.48 Since proof of safety is often difficult, the effect of shifting

the burden of proof can be to stop an activity from proceeding.
x Best available technology / clean production methods—Some versions
of the precautionary principle set forth more specific requirements to
use the best available technology,49 or clean production methods (as
opposed to basing permissible emissions on calculations of assimilative
capacity).50
x Cost-effectiveness—Finally, many formulations of the precautionary
principle provide that precautionary measures should be cost-effective.
For example, the UNFCCC states that precautionary measures to an-
ticipate, prevent or minimize climate change “should be cost-effective
so as to ensure global benefits at the lowest possible cost.”51

IV. Conclusion
In assessing the precautionary principle, Christopher Stone acknowledges,
“Caution should be high on everyone’s agenda. The proponents of the precau-
tionary principle deserve credit for their effective and insistent advocacy.”52
That said, the various formulations of the precautionary principle put for-
ward thus far have not moved the international community towards consensus
about what it means to take a precautionary approach. They differ along
virtually every important dimension: the legal status and function of the
precautionary principle; the circumstances that trigger its application; the nature
of a precautionary response, even what the norm should be called (precautionary
principle or precautionary approach). Virtually the only point of overlap is a
truism, namely, that lack of full scientific certainty is not, in itself, a basis to
postpone some type of action. The result, as Christopher Stone notes, is that the
precautionary principle is in “disarray.”53 Giving it meaning will require hard
thinking about what it means to be cautious in particular contexts, rather than
continued incantations of the same old formulations.

48
Peter Sand has called this the “most radical variant” of the precautionary princi-
ple. Sand, supra note 8.
49
Paris Commission Recommendation 89/1 on the Principle of Precautionary Ac-
tion, 22 June 1989, quoted in Trouborst, supra note 1, at 305; World Charter, supra note
28, para. 11.
50
Bamako Convention, supra note 29, art. 3(f); Resolution LDC 44/14 on the Ap-
plication of the Precautionary Approach to Environmental Protection within the
Framework of the London Dumping Convention, Dec. 30, 1991, LDC Doc. 14/16.
51
UNFCCC, supra note 14, art. 3.3; see also Amendment of June 10, 1995 to the
Barcelona Convention for the Protection of the Mediterranean Sea against Pollution, Feb.
16, 1976 (amending art. 4(3)(a)).
52
Stone, supra note 3, at 10799.
53
Id.

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