NATIONAL LAW UNIVERSITY ORISSA

COURSE:ENVIRONMENTAL LAW
TOPIC:

PRECAUTIONARY PRINCIPLE

SUBMITTED BYSARITA KUMARI

(2009/BBA.LLB./040)

TABLE

OF

CONTENTS

CHAPTER I: INTRODUCTION.....................................................................................................3
CHAPTER II: PRECAUTIONARY PRINCIPLE- INTERNATIONAL PERSPECTIVE........................4
IS PRECAUTIONARY PRINCIPLE A NORM OF CUSTOMARY INTERNATIONAL LAW?...............4
THE PRECAUTIONARY PRINCIPLE IS INTERNALLY INCONSISTENT AND VAGUE, AND
CANNOT THEREFORE CONSTITUTE CUSTOMARY INTERNATIONAL LAW.................................4
THE

PRECAUTIONARY PRINCIPLE IS NOW A RECOGNIZED PRINCIPLE OF CUSTOMARY

INTERNATIONAL LAW BY VIRTUE OF ITS INCORPORATION INTO INTERNATIONAL

AGREEMENTS, NATIONAL LEGISLATION AND POLICY DOCUMENTS........................................5

CHAPTER III: PRECAUTIONARY PRINCIPLE- INDIAN PERSPECTIVE..................................... 6

CHAPTER IV: JUDICIAL TRENDS..............................................................................................8
CHAPTER V: CONCLUSION AND SUGGESTIONS.....................................................................10
THE ROLE OF THE PRECAUTIONARY PRINCIPLE IN CLIMATE CHANGE ISSUE ......................10
INTENTION TO ABANDON THE WAIT-AND-SEE APPROACH..................................................11
BASIC FORMULATION OF THE PRECAUTIONARY PRINCIPLE UNDER INTERNATIONAL
AGREEMENTS........................................................................................................................11
STATUS AS INTERNATIONAL CUSTOM...................................................................................11
BIBLIOGRAPHY........................................................................................................................13
ARTICLES..............................................................................................................................13
BOOKS..................................................................................................................................13
CASES.14

CHAPTER I: INTRODUCTION
There is no uniform understanding of the meaning of the precautionary principle among
states and other members of the international community. The literature offers different
interpretations of the precautionary approach.1In the jurisprudence of some states, such as
India, it was pronounced that the precautionary principle is acceptable as part of law of the
land2, and this was as well postulated by some authors 3, we may only draw three common
features namely;
1. regulatory inaction threatens non-negligible harm
2. there exists a lack of scientific certainty on the cause and effect relationship, and
3. under these circumstances, regulatory inaction is unjustified.
The view that the precautionary principle is a norm of customary international law is
supported by some authors on the basis of earlier state practice which applied implicitly this
principle such as the 1982 moratorium on commercial whaling by the International Whaling
Commission4. This argument is not very convincing, since the moratorium was based on the
grounds of scientific evidence. The same author put forward an original argument that
uncertainty should not be an obstacle to the principles legal character as a norm of customary
international law, since self-determination is, although vague in its contents, a norm of
customary law. The question is whether the above fulfil the standards of state practice
required for customary international law or whether other elements such as cost and risk
assessment, must be more generally and uniformly accepted as well, to meet the conditions.
The dispute whether precautionary principle is a part of customary international law or not
has very little significance as to its application. What is of fundamental importance is the
realization that precautionary principle entails imposition of restriction on certain activities
which may have an adverse effect on the environment, even if science is unable to predict
accurately this effect.
Chapter II: Precautionary Principle- International Perspective
Is Precautionary Principle a norm of customary international law?

1 Simon Marr, The Southern Bluefin Tuna cases: the precautionary approach and conservation of fish
resources, EUROPEAN JOURNAL OF INTERNATIONAL LAW, VOL. 11, NO. 4 (2000), 815-831
2 Vellore Citizens Welfare Forum v. Union of India, AIR 1966 SC 2715
3 H. HOHMANN, PRECAUTIONARY LEGAL DUTIES AND PRINCIPLES OF MODERN INTERNATIONAL
ENVIRONMENTAL LAW 50 (1stedn., 1994)
4 D. Freestone, The Road to Rio: International Environmental Law after the Earth Summit, JOURNAL OF
ENVIRONMENTAL LAW, VOL. 6 (1994), p.211

The Precautionary Principle is internally inconsistent and vague, and cannot therefore
constitute customary international law. A norm of customary international law must first be
definite and concrete to be the subject of consent and implementation among States.
On the other hand, the ecosystem approach is more aspirational than legal in character and
hence has not risen to the status of customary international law.The ecosystem approach
does not satisfy the state practice requirementand is merely in the process of becoming
customary law.
Article 38.1 of the ICJ Statute mentions custom as a source of international law. A custom,
as per this definition, is evidence of a general and consistent practice accepted as law. Two
key elements of a custom emerge from this definition: the material facts of the actual
behavior of states (a general practice) and the psychological belief that such behavior is
law5. Hence all customs must satisfy the two conditions of state practice and opinio
juris.6
The Precautionary Principle is internally inconsistent and vague, and cannot therefore constitute customary
international law

A norm of customary international law must first be definite and concrete to be the subject of
consent and implementation among States. The precautionary principle has been expressed in
numerous international and national documents, yet all of these instruments do not agree
upon the form and features of the principle: there are, says one jurist 7, as many as nineteen
different formulations of the precautionary principle. In addition to the surface structure and
wording differences, the formulations also differ significantly in terms of their content. The
precautionary principle is thus too vague to guide actual decision-making 8, and being
inherently incoherent9 its implementation would result in adverse effects 10. Further, there is
no uniform understanding of the meaning of the precautionary principle among states and
other members of the international community.11Forcing states to refrain from activities

5MALCOLM N. SHAW, INTERNATIONAL LAW 87 (5th ed., 2003)

6Libya/Malta case1986 I.C.J. 14;Nicaragua case, 1994 I.C.J. 25
7 P. Sand in, Dimensions of the precautionary principle. Human and Ecological Risk Assessment 5, (1999), pp.
889907
8D.Turner and L.Hartzell,The lack of clarity in the precautionary principle, ENVIRONMENTAL VALUES 13, 449
460, (2004)
9 C. Sunstein, Laws of fear: beyond the precautionary principle. Cambridge University Press (2005), UK/NY
10 I. M Goklany, Theprecautionary principle: a critical appraisal of environment risk assessment. Washington,
DC: Cato Institute. (2001); Simon Marr, The Southern Bluefin Tuna cases: the precautionary approach and
conservation of fish resources, European Journal of International Law, Vol. 11, No. 4 (2000), pp. 815-831.

11
4

before any concrete information about their possible harm can be obtained also distorts the
boundary between science and policy in an unacceptable way.12
In view of the vagueness and amorphous nature of the precautionary principle, no ground for
asserting its customary nature.
the Precautionary Principle is now a recognized principle of customary international law by virtue of its
incorporation into international agreements, national legislation and policy documents.

The precautionary principle declares that where there is a threat of significant loss of
biodiversity, lack of full scientific certainty cannot be used as a reason for postponing
measures to avoid or minimize such threat.13
However, at least in the sector of marine living resources, the
precautionary

approach

has

developed

into

rule

of

customary

international law. The precautionary principle is thus a norm of customary

international law. This principle is now an integral norm of customary international law.
Uniform and consistent state practice coupled with the collective actions of states (in terms of
United Nations resolutions and reports and multilateral agreements) links the ecosystem
approach with modern customary law. At least in the sector of marine living
resources, the precautionary approach has developed into a rule of
customary international law.14 It has already been incorporated into a
number

of

international

marine

management

and

conservation

agreements,15 policy documents16 and national fisheries legislation.17

12See Gray, J. S. and M. BewersTowards a scientific definition of the precautionary principle, Marine Pollution
Bulletin 32, 11, 768771(1996); J. Morris, RETHINKING RISK AND THE PRECAUTIONARY PRINCIPLE,
121, (2000)
13 CBD, supra note 17, at preamble.
14See Philippe Sands, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 213 (1995); James
Cameron, THE GATT AND THE ENVIRONMENT, in Greening International Law 100, 117-19 (Phillipe Sands
ed., 1994); John Kunich, Losing Nemo: The Mass Extinction Now Threatening the World's Ocean Hotspots, 30
COLUM. J. ENVTL. L. 1, 46 (2005); Owen McIntyre & Thomas Mosedale, The Precautionary Principle as a
Norm of Customary International Law, 9 J. ENVTL. L. 221, 235 (1997);Francois Ewald, The Return of the
Crafty Genius: An Outline of a Philosophy of Precaution, 6 CONN. INS. L.J. 47, 60-61 (1999-2000).

15 Article IV(1)(b) and Annex of the 1952 North Pacific Fisheries Convention; Article 4 of the 1991 Bamako
Convention; Article 2(5)(a) of the 1992 ECE Transboundary Watercourses Convention; Article 2(2)(a) of the
1992 OSPAR Convention; Article 3(2) of the 1992 Baltic Sea Convention (Helsinki); Article 4(1)(f) of the 1992
Climate Change Convention; Article 174(2) of the 1992 Treaty Establishing the European Community
(consolidated version); Annex. Part 1(b), (c) 1994 Convention on the Conservation and Management of the
Pollock Resources in the Central Bering Sea; Article 6 of the 1995 UN Fish Stocks Agreement; Article 3(1) of
the 1996 Protocol to the 1972 London Convention; Preamble to the 1996 EC Council Directive 96/61/EC of 24
September 1996 concerning integrated pollution prevention and control.

There is also growing opiniojuris18 of states and a vast number of

international

fisheries

commissions

which

apply

the

precautionary

principle in recent management and conservation strategies.

The precautionary principle is thus a norm of customary international law.

CHAPTER III: PRECAUTIONARY PRINCIPLE- INDIAN PERSPECTIVE

The principle was eyed with some suspicion by Third World countries (the so-called
Group-77), which always considered it a typical Northern demand and swallowed it
without enthusiasm at the time, and only in return for the acceptance of other Southern
points of bargain. It is all more ironic now,to see the United States and its Miami group in
bio-safety negotiations opposing the precautionary principle- and the Group 77 (now called
like-minded group) defending it, with diplomatic support from the European Union.19
Likewise, he observes that there is a marked lack of constancy between European states.
The precautionary principle is relevant only in the event of a potential risk, even if this risk
cannot be fully demonstrated or qualified or its effects determined because of the
insufficiency or conclusive nature of the scientific data. It should be noted that the
precautionary principle can under no circumstances be used to justify the adoption of
16 Articles VII, XV (ii) and XVI (1) of the 1987 Ministerial Declaration of the Second North Sea Conference;
Principle 15 of the 1992 Rio Declaration; para. 17.21 of Agenda 21; United Nations General Assembly
Resolutions 44/225 of 22 December 1989 and 46/215 of 20 December 1991; Ministerial Declaration on the
Protection of the Black Sea (1993); Article 7.5 of the FAO Code of Conduct for Responsible Fisheries (1995);
1998 Sintra Statement of the Ministerial Meeting of the OSPAR Commission on the 22-23 July 1998.

17 AUSTRALIA: Section 3(1)(b) of the Australian Fisheries Management Act 1991; CANADA: Bill C-27
amending the Coastal Fisheries Protection Act to implement the 1995 Fish Stocks Agreement; EUROPEAN
UNION: Article 1(1) of Council Regulation 847/96 of 6 May 1996; ICELAND: Fisheries Management Act (No.
38/1990); NEW ZEALAND: Section II(10)(d) of the Fisheries Act 1996; Nova Scotia: Article 2(b)(ii) of the
Environment Act; US: National Standard 1 of the Magnuson Fishery Conservation and Management Act;
SOUTH AFRICA: Chapter 1, Article 2(c) of the Marine Living Resources Act 1998; for general reference, see
Barton, Status of the Precautionary Principle in Australia: Its Emergence in Legislation and as a Common Law
Doctrine, 22 HARVARD LAW REVIEW (1998) 509-558. For the US, see Fullem, The Precautionary
Principle: Environmental Protection in the face of Scientific Uncertainty, 31 WILLIAMETTE LAW REVIEW
(1995) 495.

18 Argentina, Canada, Chile, Iceland and New Zealand: see A/CONF.164/L.11. Chile, Colombia, Ecuador and
Peru: see A/CONF.164/L.14.
19 Peter Sand, The Precautionary Principle: Coping with Risk, Indian Journal of International Law, Vol. 40
(2000), pp.1-13

arbitrary measures; and further, the prudential approach is part of risk assessment which is
determined before any risk assessment takes placeit is therefore an integral part of the
scientific opinion by risk evaluators.20
The precautionary principle has not been explicitly mentioned in any environmental laws in
India. However, the Supreme Court of India has invoked this principle while passing
judgments.
In Vellore Citizens Welfare Forum v. Union of India21 case, the Supreme Court of India first
invoked the PP. Drawing support from various Articles of the Constitution of India and
arguing that the PP is part of customary international laws (and hence part of domestic laws),
the Court has strongly supported the application of precautionary principle. In fact, the Court
has also applied the reversal of burden of proof and demanded that the proponents of the
activity must demonstrate that the activity is environmentally benign
In relation to the marine environment the (precautionary) principle is unquestionably a norm
of customary international law which constitutes a fundamental precept of international
oceans law- (Para. 63 of the Statement of Claim and Grounds on which it is based).22
In AP Pollution Control Board v. Prof. M.V. Nayudu, the Supreme Court has restated its
earlier stand on the precautionary principle and demanded that the burden of proof should rest
with the person/entity proposing the activities (which may have harmful effects on the
environment and/or human beings)23.
As a consequence of the judicial recognition the National Environmental Policy adopted
precautionary principle as a guiding principle. However, it is still a long way to go before the
PP takes its rightful place in Indian environmental laws and even more importantly gets
effectively implemented.24
The precautionary principle must be applied by states in taking decisions about actions
which entail threats of or irreversible damage to the environment, where there is scientific
20Commission of the European Communities, Brussels, 2.2.2000, COM (2000) 1 Final, Communication of the
European Communities on the precautionary principle.
21 1996 SC 2715
22 The dispute concerning the Southern bluefin tuna (Australia versus Japan), Statement of Claims and
Grounds on Which it is Based, www.worldbank.org/icsid (last accessed on 25/08/2010)
23 [1999] 2 SCC 718
24 Dr. K.S.KAVI KUMAR, Precautionary Principle,8 Dissemination Paper, Madras School of Economics, pg.
16 available at http://coe.mse.ac.in/dp/Precaution-Kavi.pdf

uncertainty about the effect of such actions. The principle requires caution and vigilance in
decision making in the face of such uncertainty.25

CHAPTER IV: JUDICIAL TRENDS

In the Gabcikovo-Nagymaros26case:
States shall take precautionary principles to anticipate, prevent or minimize damage
to their transboundary resources and mitigate adversary effects. Where there are threats of
serious or irreversible damage, lack of full scientific certainty shall not be used as a reason
for postponing such measures. Article 2 para. 5 (a) of the convention on protection and use of
transboundary watercourses and international lakes, Helsinki 1992 as well as IUCN Draft
Article 6 and Brundtland Report, Article 10, provide support for the application in general
international law to apply the precautionary principle to protect transboundary source
In the Nuclear Tests II case:
France being under an obligation, before carrying out its underground nuclear
tests, to provide evidence that they will not result in introduction of radioactive material into
the marine environment, in accordance with the precautionary principle very widely
accepted in contemporary international law.
In the Southern Bluefin Tuna case:
Articles 64, 116-119 and 300 of the 1982 Law of the Sea Convention must direct any
party in the application and implementation of the precautionary principle. The principle
must be applied by states in taking decisions about actions which entail threats of serious or
irreversible damage to the environment while there is scientific uncertainty about the effects
of such actions. The principle requires caution and vigilance in the face of such uncertainty.
Judge Treves, separate opinion, para. 8:
A precautionary approach seems to me inherent in the very notion of provisional
measures.

25para. 65
26 1. C. J. Reports 1997, p. 7.
8

In the case of Tamil Nadu Tanneries27 Case, filed by the Vellore Citizens Welfare Forum
against the government, Indias Supreme Court was confronted with a petition to stop tannery
factories in the State of Tamil Nadu from releasing toxic waste substances into the
surrounding water system and agricultural and open fields.
The Supreme Court held that in its view, the precautionary principle, along with the principle
of sustainable development, has become a part of the customary international law. Thus, it
ordered the Central Government to implement the principle and set up an agency with the
authority to handle the environmental impacts of the tannery industry in Tamil Nadu.
Thus, there is sufficient state practice to make a tenable argument that the precautionary
principle is a principle of customary international law. Evidence of this is provided by
numerous MEAs and declarations. The pattern of discourse at the international and national
levels, as proven by the signed commitments of states and their domestic policies, point to a
general acceptance of the precautionary principle as a binding norm of international law.

27 1996 SCC 2715

9

CHAPTER V: CONCLUSION AND SUGGESTIONS

In accordance with the precautionary approach contained in Principle 15 of the Rio

Declaration on Environment and Development, the objective of this Protocol is to contribute
to ensuring an adequate level of protection in the field of the safe transfer, handling and use
of living modified organisms resulting from modern biotechnology that may have adverse
effects on the conservation and sustainable use of biological diversity, taking also into
account risks to human health, and specifically focusing on transboundary movements.
The norm of precautionary principle, therefore, is still uncertain.
A study of international law from a legal positivist perspective, has allowed us to evaluate the
normative character of the precautionary principle. We have also examined the particular
application of the precautionary principle in relation to the climate change issue. It should be
acknowledged however that the use of this approach limits us from seeing the moral viability
and practical reality of the application of international norms in the real world. On this point,
Dr. Rosie Cooney of the Flora and Fauna International (and coordinator of The Precautionary
Principle Project) argued that application and enforcement of the precautionary principle is
inherently political[involving] economic costs to powerful interest groups (countries and
corporations). Nevertheless, this study has led us to the following conclusions:
The Role of the Precautionary Principle in Climate Change Issue
Article 3 of the UNFCCC, which provides that parties to the convention should take
precautionary measures to anticipate, prevent or minimize the causes of climate change and
mitigates its adverse effects., represents the convergence of the precautionary principle
with the global effort to address climate change. The climate change is characterized by
uncertainty in several dimensions and it involves risks of severe damage to human health and
the environment. The precautionary principle, which mandates that actions should be taken to
avoid risks of damage despite the presence of uncertainty, is specifically intended to address
this kind of problem. Thus, when INC negotiators framed the UNFCCC in 1992 despite
lingering scientific uncertainties, but backed by the findings of the IPCC on its First
Assessment Report, it adopted the precautionary principle under Article 3 and not the
traditional wait-and-see approach. Subsequently, the Second and Third Assessment Reports
of the IPCC confirmed that there is indeed a trend towards global warming, that human
10

activities since the Industrial Revolution have influenced this phenomenon, and that there are
still uncertainties in climate change detection and attribution. Using the criteria formulated by
Sandin (2002), it can be said that the basic strategies adopted in the UNFCCC and the Kyoto
Protocol to achieve the objective of stabilizing the level of GHGs concentration in the
atmospherereduction of GHG emissions, protecting and enhancing sinks and reservoirs
are precautionary actions.
Intention to Abandon the Wait-and-See Approach
There appears to be a growing trend towards the abandonment of the traditional wait-andsee or business-as-usual approach to environmental protection, at least in the international
legal context. The reality however may suggest the opposite. Delayed action is no longer seen
an environmentally acceptable and sustainable strategy. Instead, the no regrets or
precautionary approach seems to be taking a stronger hold in the area of international law. As
the reality of climate change continues to be manifested, it can be expected that the
community of states will continue to adhere to the later approach.
Basic formulation of the Precautionary Principle under International Agreements
Since 1984, the precautionary principle has been incorporated in 29 international
environmental agreements and 7 international declarations. Although each treaty and
declaration contains its own version of the precautionary principle, their common elements
are revealed by a simple content analysis of the same. Thus, the basic formulation of the
precautionary principle under current international agreements state that: If there is risk (or
threat) of serious (and unacceptable) damage to human health or the environment, reasonable
precautionary action should be taken despite lack of absolute certainty with regard to its
causes and impact.
Status as International Custom
States have extensively recognized the existence of the precautionary principle through their
participation in the negotiations, signature and ratification of international environmental
agreements incorporating the international norm. By examining international environmental
agreements, national laws and policies, judicial decisions and state pronouncements, we can
reasonably conclude that there is sufficient evidence to prove state practice and opinion
jurissive necessitates as required by Article 38(1b) of the Statute of the International Court of
Justice for proving the existence of an international custom. General and consistent state
11

practice, including the signing and ratification of treaties and enforcement of the
precautionary principle by national policies is evident and swiftly growing. Further, national
policies incorporating the concept of precaution and the pattern of disco.urse by states at the
international level indicate that the precautionary principle has been accepted as a binding
international norm by a significant number of states. It is clear that with the increase in global
awareness towards environmental concerns, people are becoming more open to adopting the
precautionary principle.

12

BIBLIOGRAPHY

Articles:
D.TURNER AND L. HARTZELL, The lack of clarity in the precautionary principle.
Environmental Values 13, 449460, (2004)
I. M GOKLANY, Theprecautionary principle: a critical appraisal of environment risk
assessment. Washington, DC: Cato Institute. (2001)
OWEN MCINTYRE, The Role of Customary Rules and Principles of International
Environmental Law in the Protection of Shared International Freshwater Resources, 46 NAT.
RESOURCES J. (2006)
SIMON MARR, The Southern Bluefin Tuna cases: the precautionary approach and
conservation of fish resources, European Journal of International Law, Vol. 11, No. 4 (2000)
Books:

HERSCH LAUTERPACHT, The Development Of The International Law By The

International Court, (1958)
IAN BROWNLIE, Principles Of Public International Law ,p.287, (6th ed. 2003) (1966)
MALCOLM N. SHAW, International Law, 5th ed., 2003
OPPENHEIM, International Law 171 (Robert Jennings & Arthur Watts eds., Pearson
Education Ltd. 9th ed. 1996)
P. SAND IN, Dimensions of the precautionary principle. Human and Ecological Risk
Assessment 5, (1999)
PATRICIA W. BIRNIE & ALAN E. BOYLE, International Law And The Environment (2nd
ed. 2002)
PETER MALANCZUK, Akehursts Modern Introduction To International Law, 7th ed. 1997

Judicial Decision:

13

Corfu Channel case (UNITED KINGDOM V. ALBANIA.), 1949 I.C.J. 4, 22

North Sea Continental Shelf Cases (FEDERAL REPUBLIC OF GERMANY V. DENMARK)
[1969] I.C.J. 4, 30
The Island of Palmas Arbitral Award (UNITED STATES V. NETHERLANDS), 2 R. INT'L
ARB. AWARDS 829 (1949)
Trail Smelter Arbitration case (UNITED STATES V. CANADA), 3 R.I.A.A. 1911, 1965 (1941)
Vellore Citizens Welfare Forum v. Union of India. AIR 1966 SC 2715

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