Question:
Discuss About The Principle Has Attained The Level Of Customary International Law?
Environmental law is such aspect of law, which operates in complicated areas which have high level of scientific uncertainty. For the majority of activities which require a change to the environment, the precise determination of its effects on the human health or on the environment remains almost impossible to be determined[1]. Usually, the scientific evidence which is available gives the cause for concern; though, the same is no able to give information which could be deemed as conclusive. When such happens, the risk assessment requires a balance to be attained between the need for protecting the environment and for the advantages foregone of the strict restrictions which can be deemed as unnecessary. And in this context, the role of precautionary principle is raised[2]. A proposition by legal scholars which has been presented in this regard is that the precautionary principle has attained the level of customary business law. In the following parts, this very proposition has been analysed whereby its strengths and weakness have been highlighted, to understand if this proposition is actually true. But before that is done, the very basics of precautionary principle have been highlighted.
Precautionary principle is a tool which is used for betterment of environmental and health decisions. The aim of precautionary principle is to safeguard against any harm from the very start, instead of managing it after the same has already taken place[3]. To put it in layman’s language, “better safe than sorry”. This principle denotes the duty of preventing harm when it is in the power of doing so, even when there is an absence of evidence to show that[4]. Hence, this principle is a notion whereby the protective action is supported before there is a scientific proof to establish the risk, in the sense that an action should not be prolonged just because of the absence of the scientific information. In short, this principle conveys the common sense based viewpoint “to err on the side of caution”. So, the aim here is to safeguard the humans, the environment, and broadly the eco-system from harm[5].
The precautionary principle acts as a guiding principle and the purpose of it is to encourage and even oblige the decision markers for considering the possible harmful effects of the actions undertaken by them over the environment, before they even go forward with these activities. The proponents of this principle see it as a new and a progressive policy instrument, where they strive for the reversal of, or a shift from the present position in which t he polluters are allowed to go forward and continue with the discharge of different forms of substance sin the biosphere. A long time has passed since the humankind has continued to act in the short term interest of profit and progress instead of the long term focus over the welfare and health of planet earth. This has led to a known situation whereby the human society discovers that already an extensive and irreversible damage has been caused to the environment and there is already a difficulty being faced in coping with its consequences[6].
There have been one set of legal commentators who have argued in favour of the precautionary principle being a level of customary law, due to the strengths of this proposition. Conversely, there are others who state that precautionary principle has not attained this status due to the principle being quite vague, which can be interpreted in different manner and is also not accepted by the majority of world, on national level; effectively highlighting the weakness of this proposition. There is also one more description of this principle which states that the principle is evolving and is a culturally framed concept which takes the cue from the ever-changing views regarding the pertinent role of economics, politics, law, ethics, and science in proactive environmental management, as well as, its protection[7].
In a number of ways, this principle shows the legal concepts which are not even new. A proponent of this principle, James Cameron, has highlighted different principles which already exist and which in his view are indirectly, the precautionary measures. The key one in this regard is the concept of strict liability under tort, whereby absolute liability for thee conducted activities is provided, which are deemed as abnormally dangerous in nature, for instance, the burial of environmental waste. James has highlighted the probability of the responsible part being held strictly liable, and the reasonable care is not given any weighatge, as a result of which, the actors are required to be more careful and have to consider the costs of the potential liabilities before they act. Another key point here is the insurance mechanisms which act as an evidence of the precautionary measures which are already present in the system[8].
Third key point in this regard is that these principles have been analogized to the environment impact assessment. And this is a significant connection, which can be established through the example of the National Environmental Protection Act of US, whereby the agencies are required to prepare the environmental impact statement regarding important federal actions which significantly affect the human environment quality. This is a model for a number of nations where similar laws have been created. Rio Declaration’s principle 17 is instructive. And so, these environmental impact assessments to a type of compulsory information provision, where the precautionary effects resemble the ones which make the environmental empowerment possible, as these are deemed as precautionary enabling devices[9].
The final point on the basis of which the proposition is favoured is that uncertainty is a thing which is intrinsic part of the scientific process and it is not possible in a scientific manner to prove any fact with a cent percent surety. The primary base of science is to prove a theory wrong and not to prove it in a conclusive manner. Even when there a high majority of scientific community standing in favour of something, there are always such who tend to disagree with it and thus, a level of uncertainty is always present[10].
The proponents of this principle have acknowledged the irrefutable reality and at the same time have highlighted certain problems which have different layer so different kinds of scientific issues, giving rise to a number of layers of uncertainty[11]. This is the complexity which gives rise to concern and ultimately highlights the weakness of the proposition. The higher these uncertainties are present, the higher becomes the possibility that some of the unforseen and even unrelated factors could result in changed result or prediction regarding the possibility of harm. In short, the risk profile of such problems is changed. As a result of these added complexities, the proponents have stated that this principle is a theory and it should essentially remain as a guidance of policies, even though it is imperfect, instead of considering it as a customary law.
An unsolved question, which opens channel gates for a number of debates, is whether or not the precautionary principle has become a customary international law. The International Court of Justice’s Statute defines the customary international law as the international custom, which is a proof of the general practices, which are accepted as law[12]. Included in the elements of customary international law are the duration, generality of practice, opinion juris, and uniformity and consistency of practice[13]. Precautionary principle being given the status of a customary international law holds significance as a rule under the customary law results in the creation for the states, save for the ones who continue to object to the practice and legal consequences of it. The cases of North Sea Continental Shelf [14]and Nicaragua [15]act as a complement to this article of Statue of the International Court of Justice and have clarified the two requirements of the customary international law. As per this court, the customary international law is raised when the nation follows such a practice which is not only extensive, but is also in uniform manner virtually, along with the practice being followed with conviction which is compulsory to do so, based on the international law. Hence, the opposition of a certain set of states does not seem to interfere in the development of the customary rule. Yet, the best indicators of the practice of state continue to be instrument of the state and international law. At present, Marketing is being used in around 90 international agreements and declaration. And in this regard, the number of states signing declaration and ratifications of it shows the broad acceptance of this rule by the states[16].
Such set of scholars who are in support of the idea that the principle is indeed a part of the customary law provide different contentions. The first one in this regard is that this principle has been adopted in a number of international treaties, which can be deemed as the authority in some circumstances, for establishing the presence of the duties as customary law[17]. The next contention is that there are a number of decisions which are handed down by the international tribunals and courts, which can be deemed as a proof of the practices of the States in support and adoption of this principle. The next point in support of the proposition is that a high number of national laws are implementing the principle and the national courts are also adopting its judgements. And due to these reasons, the patrons have insisted that the precautionary principle approach, after its twenty years of evolution, has become an approach which can, at the very least, be deemed as a principle under the customary international law[18].
The other set of scholars covers such individual who criticize this proposition and provide certain bases for rejecting this principle as customary international law. The most significant and common one in this regard is that the principle is very vague for it to be acknowledged by the governments of different nations, irrespective of the magnitude of their proper protection of the environment. Also, it is also not clear to the critics regarding whether it is an approach or a principle. In case the Rio Declaration is deemed as this principle’s embodiment, a precautionary approach is advocated as against the precautionary principle[19]. This means that the precaution is not to be deemed as a lawful rule, and instead, it needs to be deemed as a method.
In addition to this, the precautionary principle has been already incorporated into the national laws which make it difficult to prove that there is a consistency and uniformity in the consistency of the existence of this practice. The most important problem relates to the challenges faced by treating it as a law, in its compliance and enforcement, as the opponents prove that this is not yet a law, which can prove to be effective like the other laws, protecting the human rights per se of indigenous people. Hence, the status of precautionary principle continues to be uncertain. And so, it cannot be used to resolve any conflict due to lack of effectiveness of this principle as a law. Often, there is also a clash in uploading this principle as a law, due to self interest of a nation being put before the international law, and thus claiming that principle lacking the status of a law[20].
Conclusion
The previous segment makes it very clear it remains unclear if precautionary principle is to be deemed as customary international law. The major developments surrounding this principle cannot be ignored in the international context. And it is without any doubt that the precautionary principle has influenced the decision making process in a significant manner, at both the national and international levels. Though, one also cannot deny that there remain a number of flaws and haps in this principle, which require the same to be improved, before the same can be deemed as a customary law. There is hence, a need for a widely accepted definition of the precautionary principle to be drawn in a formal manner by the international community at the earliest. More importantly, there is a need to resolve the problem between the principle and the approach issue. In addition to this, there is a need for the general and consistent practices to be developed, with the submission of more cases in the national and international courts. So, at the present, the precautionary principle is on the way of being deemed as a customary international law, but before that, the principle needs to be revamped a little.
References
Chaudry RV, ‘The Precautionary Principle, public healthcare, and public health nursing’ (2008) 25(3) Public Health Nursing.
Deloso R, The Precautionary Principle – International Law and Climate Change (GRIN Verlag, 2011)
Paddock L, Qun D, and Kotzé LJ, Compliance and Enforcement in Environmental Law: Toward More Effective Implementation (Edward Elgar Publishing, 2011)
Schlütter B, Developments in Customary International Law (BRILL, 2010)
Stevens M, ‘The Precautionary Principle in the International Arena’ (2002) 2(2), Sustainable Development Law and Policy
Viñuales JE, The Rio Declaration on Environment and Development: A Commentary (Oxford University Press, 2015)
Voigt C, Sustainable Business Development As a Principle of International Law: Resolving Conflicts Between Climate Measures and WTO Law (BRILL, 2009)
Wang R, ‘The precautionary principle in maritime affairs’ (2011) WMU Journal of Maritime Affairs.
Wellman C, The Moral Dimensions of Human Rights (Oxford University Press, 2010)
Nicaragua ICJ Rep. (1986)
North Sea Continental Shelf ICJ Rep. (1969)
Boutillon S, The Precautionary Principle: Development of an International Standard (2017) <https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1363&context=mjil>
Cameron J, and Abouchar J, The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment (05 February 2017) <https://osrtf.ca/osrtf/wp-content/uploads/2017/02/05-The-Precautionary-Principle.pdf>
Canadian Environmental Law Association, The Precautionary Principle (2017) <https://www.cela.ca/collections/pollution/precautionary-principle>
International Committee of the Red Cross, Practice Relating to Rule 44. Due Regard for the Natural Environment in Military Operations (2017) <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_cha_chapter14_rule44_sectionb>
Kaur H, Precautionary Principle (04 February 2015) <https://www.lawctopus.com/academike/precautionary-principle/#_edn35>
Sirinskiene A, The status of precautionary principle: moving towards a rule of customary law (2009) <https://www.mruni.eu/upload/iblock/b27/20sirinskiene.pdf
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