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Master's Thesis from the year 2006 in the subject Environmental Sciences, grade: merit, Lund University (LUMES), language: English, abstract: The precautionary principle is an old concept with a new character. Threats of harm, since the early days of civilization, were confronted by taking some form of precaution. Throughout history, the concept of precaution provided humans with the moral right to avoid potential harm or damage to his health and his environment despite lack of certainty of its occurrence. Today, the precautionary principle is a common legal concept in national and international regulatory policies. In a nutshell, it means that if there is threat or risk of serious or irreversible damage to human health or the environment, precautionary actions must be taken even though there is lack of full certainty surrounding the issue. This paper looks at the concept of precaution in the framework of international law. The precautionary principle is particularly applied in the current global effort to address climate change. Despite many uncertainties about the science and impacts of the global warming phenomenon, leaders of the global community, adopted the precautionary principle, instead of the traditional reactive wait-and-see approach, in the climate regime. Although criticized by many for its shortcomings and its marginal position in the practical sense, this paper looks at the legal validity of the precautionary principle based on its sources, rather than its merits. In other words, this thesis looks at the concept of precaution and examines it in the lens of the contemporary international legal system. The first part of this thesis endeavours to understand better the precautionary principle under international conventional law. Influenced by systems approach, this paper particularly analyzed the principle’s relevance with the climate change issue. Guided by the legal positivist approach, the first part argues that the precautionary principle is a significant doctrine in international conventional law. The thesis also examines the precautionary principle in the context of international customary law. Keywords: precautionary principle, climate change, treaties, uncertainty, customary international law
Papers presented at the meetings facilitated by the Sanders Institute at the Faculty of Law of the Erasmus University Rotterdam and the Law School of the University of Hull.
Viewed from the perspective of environmental management, this study describes the implications and applications of the precautionary principle - a theory of avoiding risk even when its likelihood seems remote. This principle has been employed in the United Nations Framework Convention on Climate Change and the North Atlantic Convention, yet it is not widely understood. This study examines the history and context of the principle, and its applications to law, governmental policies, business and investment, scientific research and international relations.
The controversial question of whether or not at present the precautionary principle is to be considered a norm of customary international law is the key theme of this work, which treats the issue as part of a broader discussion of the principle's legal status on the international plane. This discussion, In turn, Is put in perspective by an account of the short but remarkable history of the principle in international environmental law and policy. The greater part of this study consists of the mapping and analysis of state practice in respect of the precautionary principle. Pertinent treaties, declarations, decisions of international organizations and domestic instruments pass in review. The book then applies the generally accepted principles governing the formation of customary international law to this body of state practice. This manuscript was awarded the François Prize 2001 by the Netherlands Society of International Law / Netherlands Branch of the ILA. `[The precautionary principle] has been cited in an increasing number of legal proceedings, including those in the International Court of Justice, The International Tribunal For The Law of the Sea And The WTO Appellate Body, As well as in the courts of a large number of states, including the supreme courts of India and Canada.' (from the Preface by the Series Editors)
"This vitally important book asks: Can the precautionary principle make uncertainty judiciable in the context of liability for the consequences of climate change, and, if so, to what extent? Drawing on the full range of pertinent existing literature and case law, the author examines the precautionary principle both in terms of its content and application and in the context of liability law. She analyses the indirect means offered by existing legislation being used by environmental groups and affected individuals before the courts to challenge both companies and regulators as responsible agents of climate change damage"--Page 4 of cover.
The second edition of this leading reference work provides a comprehensive discussion of the dynamic and important field of international law concerned with environmental protection. It is edited by globally-recognised international environmental law scholars, Professor Lavanya Rajamani and Professor Jacqueline Peel, and features 67 chapters authored by 76 renowned experts in their fields. The Handbook discusses the key principles underpinning international environmental law, its relevant actors and tools, and rules applying in its substantive sub-fields such as climate law, oceans law, wildlife and biodiversity law, and hazardous substances regulation. It also explores the intersection of international environmental law with other areas of international law, such as those concerned with trade, investment, disaster, migration, armed conflict, intellectual property, energy, and human rights. The Handbook sets its discussion of international environmental law in the broader interdisciplinary context of developments in science, ethics, politics and economics, which inform the way in which environmental rules are made, implemented, and enforced. It provides an introduction to the foundations of international environmental law while also engaging with questions at the frontiers of research, teaching, and practice in the field, including the role of Global South perspectives, the contribution made by Earth jurisprudence, and the growing role of a diverse range of actors from indigenous peoples to business and industry. Like the first edition, this second edition of the Handbook is an essential reference text for all engaged with environmental issues at the international level and the applicable governance and regulatory structures.
Concluding that the precautionary principle embodies customary international law is one thing. Determining what this means is quite another. That challenge is met by this work, which resolves a number of crucial questions concerning the scope of this principle of international environmental law; the conditions triggering a right or duty to take precautionary action; the measures to be taken; the allocation of the burden of proof; and the role of socio-economic factors. These questions are dealt with one at a time through the charting and analysis of patterns and common denominators in the extensive (inter)national practice of states regarding the precautionary principle. The hard legal core of the principle is thus gradually exposed. In the process, a realistic and accessible account is given of how and to what extent this general principle can and does direct the actions of states in concrete instances. Ultimately, this work sets out what it takes to act in conformity with the precautionary principle under general international law, and will be of interest to anyone involved with international law and environmental protection.
From fisheries to persistent organic pollutants to climate change itself, no other environmental principle in environmental law has produced as much controversy as the precautionary principle. Unlike a preventive approach in which action is taken provided that the threats to the environment are tangible, with a precautionary approach, authorities are prepared to tackle risks for which there is no definitive proof that the damage will materialize. The ramifications of this increasingly apparent approach are profound and cut across all areas of risk assessment and management, environmental law, policy and regulation in every major sector. However, to date little thought has been dedicated to the implementation of the precautionary principle in a wide array of environmental circumstances. This authoritative handbook addresses the legal aspects of how the precautionary principle is implemented in different sectors, and examines its successes, failures, strengths and weaknesses. Sectors and subjects covered include chemicals, GMOs, marine pollution, fisheries and nature conservation, and the book draws on cases in the EU, in the USA, and Nordic countries, where the use of precaution has been gathering momentum. Ultimately, the book provides an indispensable appraisal of the question - increasingly important in the era of human-induced climate change - of whether the precautionary principle is relevant, indeed essential, to avert major environmental and health risks, and how and when it can be used successfully. Published with MARIE CURIE ACTIONS
This challenging book takes a broad and thought-provoking look at the precautionary principle and its implementation, or potential implementation, in a number of fields. In particular, the essays within the book explore the challenges faced by public decision-making processes when applying the precautionary principle, including its role in risk management and risk assessment. Frameworks for improved decision making are considered, followed by a detailed analysis of prospective applications of the precautionary principle in a number of emerging fields including: nanotechnology, climate change.
This book is the first comprehensive assessment of the legal duties of states with regard to human induced climate change damage. By discussing the current state of climate science in the context of binding international law, it convincingly argues that compensation for such damage could indeed be recoverable. The author analyses legal duties requiring states to prevent climate change damage, and discusses to what extent a breach of these duties will give rise to state responsibility (international liability). The analysis includes the UN Framework Convention on Climate Change and the Kyoto Protocol, but also various nature/ biodiversity protection and law of the sea instruments, as well as the no-harm-rule as a key provision of customary international law. The challenge in applying the different aspects of the law on state responsibility, including causation and standard of proof, are discussed in three case studies, and the questions raised by multiple polluters explored in depth. Against this background, the author advocates an internationally negotiated solution to the issue of climate change damage.