Precaution on the global stage

In the Bergen Conference of 1990 that followed up the response by the wealthy northern countries to the Brundtland Report on sustainable development, there was a frightful row over the meaning and role of the precaution principle for global policy and diplomacy. In her opening address, the Norwegian Prime Minister, Mrs Brundtland, called for action in advance of certainty: "If we err in our decisions affecting the future of our children and our planet, let us err on the side of caution," she declared. The scientific community, one of five non-governmental organizations directly involved with the Conference, provided this wording: "After taking into account the possible costs of being wrong, it will be better to find out we have been roughly right in due time than to be precisely right too late" (NAVF, 1990).

It is evident that the furore over the precise wording also applied to the various degrees of commitment by the major greenhouse gas emitting nations to limit their emissions. The Americans are far from convinced of the scientific argument and until now have remained opposed to any specific commitment to reduction. The British will only lower emissions if other countries follow suit, but will not take a lead. The Japanese remain ambivalent, but are now willing to accept the European Community target of stabilization of CO₂ by the year 2000, should all its competitors also follow suit. The trouble, of course, is that greenhouse gas reduction cannot be undertaken on a country-by-country basis if it is to be effective. It requires programmed and comprehensive commitment at least by all major emitters, together with patterns of technology transfer and training provision for the developing world, so that they can develop in a manner that does not create more global warming than is saved by reductions in the North. So far, none of this is forthcoming; hence the political and legal interest in extending the principle of precaution to international environmental conventions.

There are some dangers in getting too carried away with the application of precaution at any cost. In the absence of comparative risk assessment, the consequences of curtailing potentially beneficial activity and creating another set of unforeseeable risks for an unprepared society could be greater than proceeding step by step with prudent caution. This is in part the lesson of the North Sea algal blooms. To reduce greenhouse gases willy-nilly could cripple an economy with no demonstrable evidence of a net advantage at the margin. Prudent science coupled to genuine dialogue with the public, linked in turn to meaningful images of possible outcomes for staged investment in the curtailment of environmental nuisance, is a better synthesis for precaution than precaution as an end in itself. This seems to be the way forward on the international and global stage.

Cameron and Abouchar (1991) have sought to identify four key principles for a legal definition of precaution in international law:

1. A threshold of perceived threat against which advance action would be deemed justifiable. The degree of threat need only be established by common consent, but could be coupled to compensatory exchanges of technology or financial resources to facilitate early action.

2. A burden of proof on the proto-polluter to show that a proposed policy or action will not cause actual harm. Costanza and Perrings (1990) have proposed that nations and/or aid agencies and/or international corporations deposit an environmental performance bond in advance of any investment, the money to be payable for any unforeseeable damage or hardship, or to be returned to the depositor as a sign of best practice. In both arguments the shift of the burden of proof passes from the aggrieved, who are usually the most vulnerable, to the promoter of change, who is usually the most culpable but capable of avoiding downstream and transnational externalities.

3. A duty of positive obligation that would require decision makers to be fully informed about the possible consequences of environmental change. This duty, which amounts to a comprehensive environmental audit of policies and programmer, would have to be backed by enforceable scrutiny of the justification for action.

4. A liability for omission that would fall upon any party that failed to act on the grounds of insufficient scientific evidence, bearing in mind the threshold principle (above) and the duties of due care and attention.

The objective here is to establish internationally a set of legal principles that would become incorporated into national law, citizens' rights, and full-scale audits of policies, programmes, and projects. This was always the intention of the original provisions of the US National Environmental Protection Act of 1969 which created the practice of "environmental impact assessment." Now that the European Community has committed itself to a process of taking into account the environmental implications of all policies - agriculture, transport, energy, overseas trade - before action, there is scope for extending the precaution principle across a wider range of international action.

Table 2 The extension of precaution

Constitutional principle
Framework law
Substantive conventions on climate, biodiversity, and international trade
Administrative procedures, both quasi-judicial and inquisitorial, to discover facts and uncertainties and define staged actions
Legal arrangements on liability, burden of proof, fiscal incentives, citizens' action
Precautionary remedies, such as deposit bonds, injunctions, mandamus
Monitoring and enforcement agencies linking national to regional to international obligation and coupled to an expert secretariat
Access to information, and rights to be informed, via state of the environment reports and environmental audits
Policy audits by governments, official agencies, corporations and international regimes that would be examinable and related to an explicit duty of environmental care

Source: Based on Cameron and Abouchar, 1991.

Cameron and Abouchar (1991) have produced a framework for national and international evolution of the principle, which is presented in table 2. The diagram summarizes much of what was discussed in this chapter. For the issue of precaution must not be confined to law, but to social change generally and fundamental principles of justice and welfare. This encompasses rights to know and to be informed, rights to seek redress over legitimate grievances, rights of international agencies to place pressure on non-complying states or agencies through some kind of consensus over environmental security and cooperation, and rights of sharing and exchanging information, understanding, and technology so that the weak and vulnerable are not suffocated in the stampede to save the world.