Archives for October 11, 2005

A new book has been published by the International Policy Network titled Arbitrary and Capricious
with the subtitle The Precautionary Principle in the European Union Courts by Gary Marchant and Kenneth Mossman. It looks like a detailed review of a difficult concept.

The 102 pages can be downloaded here.

I found this on about page 8:

Coincident with its geographical proliferation, the legal significance
of the precautionary principle has also been evolving. From the beginning, there have been confusion and disagreement about whether the precautionary principle should be viewed as a statement of general philosophy, a policy prescription, or a legal decision rule. Some proponents argue that the precautionary principle is not an “algorithm” dictating particular decisions but rather more akin
to the general “legal principle” in criminal law that a defendant is
innocent until proven guilty beyond reasonable doubt.

Others claim that the precautionary principle reflects simply a “broad
approach” or a “mere policy guidance” rather than providing a specific decision rule. For example, one proponent wrote that “we
should remember that the precautionary principle is only a principle.
If viewed as a rule or a standard, it is hopelessly vague, doing
nothing to define the policies that should flow from it.”

Other proponents of the precautionary principle argue, however, that it will achieve its purpose only if it is applied as a legally binding rule.

Notwithstanding these conflicting views of the status of the precautionary principle, in every jurisdiction in which it has been
adopted to date, the precautionary principle has evolved from policy
guidance to a binding legal rule.

For example, in the Cartagena Protocol on Biosafety, finalized in January 2000, the precautionary principle, for the first time, was inserted as an operational, binding requirement of an international environmental agreement rather than as a general objective in the preamble of a treaty. Shortly thereafter, in the Stockholm Convention on Persistent Organic Pollutants, concluded in December 2000, the precautionary principle was incorporated into both the treaty preamble and its operational provisions, where it has legal effect on decision making under the treaty.

Some international legal theorists argue that the precautionary principle has “crystallized” into a binding norm of customary international law as a result of its frequent inclusion in international environmental agreements and national regulatory decisions.

Indeed, the European Commission asserts that the precautionary
principle is a “full-fledged and general principle of international
law.” Moreover, courts in several nations have begun applying the
precautionary principle as a legal rule that directs or at least influences the outcome of environmental disputes.

The precautionary principle has thus morphed from soft law into
hard law.

A few courts have expressed reservations about applying the vague precautionary principle as a rule of law. In the words of one Australian court, for example, “The precautionary principle,
while it may be framed appropriately for the purpose of a political
aspiration, its implementation as a legal standard could have the
potential to create interminable forensic argument. Taken literally in
practice it might prove to be unworkable.” Such cautionary reservations, however, have been trampled underfoot by the steady
pressure to exploit fully the precautionary principle once it is “on
the books,” leading to an apparently inevitable metamorphosis from
general policy to legal rule.