THE PRECAUTIONARY PRINCIPLE AND

ENVIRONMENT PROTECTION

C.P. Singh*

I Introduction

IN MATTERS of personal health, prevention and precaution are widely

recognized “best practices”. Policymakers are eager to endorse suggestions
that we exercise or eat more fiber, or avoid tobacco and alcohol. However,
the policies governing industrial function does not show such foresight
on environmental aspects such as release of industrial waste. Recently,
several negotiations took place with an object to develop a legally binding
mechanism for release of industrial waste into environment. However,
experience and study shows that the authorities are facing the problem of
uncertainty of effect and harm. Thus, difficulty of risk assessment in
practical terms is the biggest hurdle in the implementation of these national
and international conventions and negotiation providing regulatory
guidelines. Some policymakers have worked to find ways to speed the
regulatory process, while still acting responsibly. More than three decades
ago, a principle known as “Vorsorgeprinzip” translated as the “foresight
principle” or the “precautionary principle” was introduced in Germany
as a yardstick for judging policy decisions. By 1970s, it was reflected in
West German environmental law.1 Environmental problems tend not to
stop at national borders and pollution created in one country often causes
problems far away. The pollution of the oceans forms a good example
of this. The factor of uncertainty of effect and degree of harm were the
generator of the principle.
The precautionary principle or approach responds to the complexity
of environmental health problems, the paucity of information and

* Associate Professor, Faculty of Law, Lucknow University, Lucknow.

1. W. Gullet, “Environmental protection and the precautionary principle: a
response to scientific uncertainty in environmental management“, 14 Environment
and Planning L J. 52 (1997).

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subsequent uncertainty about cause–effect relations and the slow pace of

government testing and government decision making. At its core, the
principle calls for preventive, anticipatory measures to be taken when an
activity raises threats of harm to the environment, wildlife, or human
health, even if some cause-and-effect relationships are not fully established.
The precautionary approach is a logical extension of commonsense
concepts that guide daily life: “an ounce of prevention is worth a pound
of cure”; “better safe than sorry”; the Hippocratic Oath’s “first, do no
harm”. It challenges us to prevent harm before it occurs. It holds that
when there is scientific evidence that an activity threatens wildlife, the
environment, or human health, protective measures should be taken even
in the absence of full scientific certainty
During late 1970s and early 1980s, following notions of care and
wise practice have been extended to six basic concepts which are now
commonly termed as precautionary principle:
Preventative anticipation: A willingness to take action in advance of
scientific proof of evidence of the need for the proposed action on the
grounds that further delay will prove ultimately most costly to society
and nature, and, in the longer term, selfish and unfair to future generations.
Safeguarding of ecological space or environmental room for manoeuvre
as recognition that margins of tolerance should not even be approached,
let alone breached. This is sometimes known as widening the assimilative
capacity of natural systems by deliberately holding back from possible
but undesirable resource use.
Proportionality of response or cost-effectiveness of margins of error to
show that the selected degree of restraint is not unduly costly. This
introduces a bias to conventional cost benefit analysis to include a weighting
function of ignorance, and for the likely greater dangers for future
generations if life support capacities are undermined when such risks
could consciously be avoided.
Duty of care or onus of proof on those who propose change: This raises
profound questions over the degree of freedom to take calculated risks,
thereby to innovate and to compensate for possible losses by building in
ameliorative measures. Formal duties of environmental care, coupled to
an extension of strict liability for any damage, no matter how unanticipated,
could throttle invention, imagination and growth. Alternatively, when
creatively deployed such strictures could encourage imagination and
creativity in technology, economic valuation, technological advance and
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unusual forms of ameliorative compensation. Hence, the concept of

proportionality can be regarded either as a deadweight or a touchstone
for the visionary.
Promoting the cause of intrinsic natural rights: The legal notion of ecological
harm is being widened to include the need to allow natural processes to
function in such a manner as to maintain the essential support for all life
on earth. The application of ecological buffers in future management
gives a practical emphasis to the thorny ethical concept of intrinsic natural
rights.
Paying for past ecological debt: Precaution is essentially forward looking
but there are those who recognize that in the application of care, burden
sharing, ecologically buffered cost effectiveness and shifting the burden
of proof, there ought to be a penalty for not being cautious or caring in
the past. This suggests that those who have created a large ecological
burden already should be more “precautious” than those whose ecological
footprints have to date been lighter. In a sense this is precaution put into
reverse. Compensating for past errors of judgment based on ignorance
or an unwillingness to shoulder an unclearly stated sense of responsibility
for the future. This element of the principle is still embryonic in law and
practice, but the notion of “common but differentiated responsibility”
enshrined in the UN Framework Convention on Climate Change, and the
concept of conducting precaution “according to capabilities” as laid down
in Principle 15 of the Rio Declaration reflect to some extent these ideas.2
Submission of India and other similarly situated countries in the recent
Convention on Climate Change that the developed countries that have a
major part in environmental pollution should have a major responsibility
than that of India and others is supported by this very principle.
The precautionary principle in the context of environmental protection
is essentially about the management of scientific risk. It is a fundamental
component of the concept of ecologically sustainable development (ESD)
and has been defined thus in Principle 15 of the Rio Declaration (1992):3
Where there are threats of serious or irreversible environmental
damage, lack of full scientific certainty should not be used as a

2. Tim O’Riordan and James Cameron (eds.), Interpreting the Precautionary Principle.
3. United Nations Conference on Environment and Development, Rio, 1992
(the “Rio Declaration”).

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reason for postponing measures to prevent environmental

degradation.
Although the term “measures” is not entirely clear, it has generally
been accepted to include actions by regulators such as the use of statutory
powers to refuse environmental approvals to proposed developments or
activities. “Prevention is better than cure”. This is the sum and substance
of the concept. This principle contemplates that the activity which poses
danger and threat to the environment is to be prevented. The term
normally used is that this principle is meant to ensure “that a substance or
activity, only a threat is to be prevented.” The word ‘substance’ would
include introduction of material through human effort; it is this human
effort which has been termed as ‘activity’.4 Thus, the principle means that
any thing of human behavior which bears the harmful effect to the
environment should be prevented.
This Principle means:
a) The State Governments and Local Authorities are supposed to
anticipate and then prevent the cause of environmental degradation.
They are supposed to check the activity;
b) Merely because there is lack of scientific knowledge as to whether
a particular activity is causing degradation should not stand in the
way of the Government;
c) The onus of proof is on the actor or the developer i.e. the
industries to show that the action is environmental friendly.
To achieve the above, following basic principles are supposed to be
observed:
(i) the decision should be based on best possible scientific information
and analysis of risk.
(ii) Where there is uncertainty but potentially serious risk exist even
then precautionary measure are supposed to be taken;
(iii) Ecological impacts should be given paramount consideration and
this is more so when resources are non renewable or where the
end result would be irreversible:
(iv) The indication of the cost should be made known directly to the
person who if does not take precaution can be called upon to
meet the expenses - a subject which may fall under the head
“polluter pay’s principle.

4. Burnie Port Authority v. General Jones Pvt. Ltd. (1994) 68 Aus LJ 331.
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II Precautionary principle and risk assessment

Risk assessment and precaution are not opposites, although some
advocates on both sides have made them out to be so. Nevertheless, they
represent vastly different approaches. The conflicts between risk assessment
and precaution can be understood in two ways:5
1) Risk assessment is misused. Risk assessment, properly used, might
be a small part of a precautionary approach, but instead it creates a
barrier to precaution. Precaution covers a large portion of the regulatory
system but is often thwarted by the use of risk assessment.
2) Risk assessment is deliberately or easily manipulated to support
economic interests at the expense of the environment and public health.
Consider these contrasts between a precautionary approach and one
that enshrines quantitative risk assessment as the comprehensive guide to
regulation:
• Risk assessment tries to determine how much harm we will tolerate.
Precaution asks how much harm we can avoid.
• Risk assessment involves painstaking, often time-consuming
evaluation of known hazards and the probability of harm.
Meanwhile, if technologies continue to be used and rapidly
developed during this process, harm may occur. Precaution places
a “speed bump” in the way of technologic development to prevent
harm from occurring.
• Precaution addresses uncertainty and the potential for major harm,
even if it is not immediate. Risk assessment focuses on known,
quantifiable hazards and often misses the big uncertainties.
• Precaution demands consideration of the need for potential harmful
activities and safer alternatives to them. By doing this, the
precautionary approach encourages us to set explicit goals and
then consider ways of achieving them. Risk assessment may be a
useful tool in evaluating alternatives, but a risk-assessment–based
regulatory system provides few opportunities for assessing the
need for an activity in the first place.
• Risk assessment is used as a tool to help set certain standards in
an uncertain world. Precaution does not pose absolutes. It requires
that we explicitly acknowledge uncertainty. It is premised on the

5. Carl Smith, The Precautionary Principle and Environmental Policy, Science, Uncertainty
and Sustainability, Special Series.
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fact that we will never know everything but must act with as
much care and foresight as possible.
• Risk assessment deals with chemicals, technologies, species, and
activities one by one, case by case, test by test. Precaution uses all
the resources of human intelligence to look at categories of suspect
technologies, make informed guesses about harmful effects, and
develop principles of behavior, judgment, and development.
Precaution sets goals, tries to predict outcomes, and takes a
proactive approach. Risk assessment can inform this intelligence
but does not provide sufficient information. We cannot depend
on it as if we were automatons.
III Precautionary principle and the assimilative
capacity principle
A fundamental switch over in the approach to environmental protection
took place initially during 1972 to 1982. Earlier, the concept was based
on the “assimilative capacity” rule as revealed from Principle 6 of the
Stockholm Declaration of the U.N. Conference on Human Environment,
1972. The said principle assumed that science could provide policy makers
with the information and means necessary to avoid encroaching upon the
capacity of the environment to assimilate impacts and it also presumed
that relevant helping hand in the form of technical hand would be available
at the time of need and there would be sufficient time to avoid if any
such environmental harm arises. However, when the prior preparations
failed to deal with the disasters and natural threats in the 11th Principle of
the U.N. General Assembly Resolution on World Charter on Nature,
1982, the emphasis shifted to ‘precautionary principle’ and when the
same was reiterated in the Rio Conference of 1992 in its Principle 15, the
concept attained prominence.
The inadequacies of science and technologies to predict the effect of
human activities and degree of threat and dangers resulting therefrom led
to the precautionary principle in 1982. It is based on the theory that it is
better to be on the side of caution and prevent the harm to the
environment which may become irreversible. The precautionary principle
was recommended by the Governing Council of United Nations
Environment Programme in 1989.
In United Kingdom, a Royal Commission on Environment Pollution
was set up. In its 10th Report, submitted in the year 1984, the expression
“best practicable environmental option” was used. The aim for using the
terminology was to devise a policy with the help of available methods
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and technologies so as to control the damage to the environment upto

the optimum possible extent with an affordable and reasonable total
combine cost of industry and public use.
“Integrated Pollution Control” is another expression which finds place
in environmental jurisprudence. When an effort is made on individual
basis, there can be deficiencies in the matter of approach and, therefore,
it was felt essential to have some unified effort to control for
environmental protection and, for this purpose, the term “Integrated
Pollution Control” was generated in environmental jurisprudence.
The enforcement agencies are another concern when we talk about
precautionary principle and environment protection. For this purpose,
effective provisions have been made in the statutes to deal with the
object.
Environmental impact assessment, i.e. as to what harmful effect a
particular operation would have on the environment is also essential.
With the experience which has been gained, it is possible to now anticipate
that on the establishment of a particular manufacturing unit, what would
be the effect on the environment. If it is going to have adverse effect,
then a decision has to be taken as to whether to let the particular scheme
be permitted to be implemented or not. The precautionary principle is
applied while setting up any establishment.6
Thus, gradually the precautionary principle has replaced the assimilative
capacity principle in the field of environment protection.
IV The precautionary principle and international law
The precautionary principle is increasingly at the centre of national
and international debate over environmental and public health policy
making. A broad range of individuals in the environmental and public
health communities and in government are interested in the principle as a
guiding principle of environmental and public health policy making that
should inform all steps in the decision-making process.7 The precautionary

6. T.S. Doabia, Environmental & Pollution Laws in India 596 (2010).

7. Mary O ’Brien, Making Better Environmental Decisions: An Alternative to
Risk Assessment (The MIT Press: Cambridge, MA, 2000); Carolyn Raffensperger &
Joel Tickner (eds.), Protecting Public Health and the Environment: Implementing the
Precautionary Principle (Island Press: Washington, DC, 1999) [hereinafter,
Implementing the Precautionary Principle]; Wingspread Statement on the
Precautionary Principle (January 25, 1998), reprinted in Implementing the
Precautionary Principle; Joe Thornton, Pandora’s Poison 343-49 (The MIT Press:
Cambridge, MA, 2000).
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principle in the policy dialog is fairly clearly articulated and its significant
elements include:
• taking precautionary measures even if not all cause-and-effect
relationships are fully understood;
• shifting the burden of proving safety onto the proponent of a
potentially harmful activity;
• making environmental and public health decisions in an open,
informed and democratic way;
• examining the full range of alternatives to a particular activity;
and
• relying on a weight-of-the-evidence approach, rather than waiting
for absolute certainty.
The prominence of the principle has increased by its emergence as a
principle of international law. Consequently, the further development of
international environmental law on the precautionary principle will be
driven in large part by developments at the local and national levels.
International law and national law have a symbiotic relationship. Especially
in the environmental field, legal concepts and principles enter international
law from domestic law. Once a legal norm is established in international
law, that norm influences domestic law as countries implement their
international legal obligations into the national law. International recognition
of the precautionary principle and international agreement on the key
elements of its definition are important in promoting the principle’s use
locally and nationally and in furthering the development of international
environmental law and sustainable development.
V Rio Principle 15: International consensus on the
precautionary principle
The most widely accepted expression of the precautionary principle
by States is Principle 15 of the Rio Declaration:8
In order to protect the environment, the precautionary approach
shall be widely applied by States according to their capabilities.
Where there are threats of serious or irreversible damage, lack of
full scientific certainty shall not be used as a reason for postponing
cost-effective measures to prevent environmental degradation.

8. Rio Declaration on Environment and Development, Principle 15, June 14,

1992, U.N. Doc. A/Conf. 151/5/Rev. 1 (1992), reprinted in 31 I.L.M. 876 (1992).
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In regard to the cause for the emergence of this principle, Charmian

Barton, in his article9 says:
There is nothing to prevent decisionmakers from assessing the
record and concluding there is inadequate information on which
to reach a determination. If it is not possible to make a decision
with ‘some’ confidence, then it makes sense to err on the side of
caution and prevent activities that may cause serious or irreversible
harm. An informed decision can be made at a later stage when
additional data is available or resources permit further research.
To ensure that greater caution is taken in environmental
management, implementation of principle through judicial and
legislative means is necessary.
Although there is consensus around the content of Rio Principle 15,
there is no consensus around its legal status. The Rio Declaration is a soft
law instrument and so does not create legally binding obligations. However,
some Rio Principles are widely thought to be norms of international
law.10 The United States and the European Union in particular disagree
over whether Principle 15 is an international legal principle, or simply a
political statement. However, apart from this, it is the fountain feature
for precautionary principle in international law.
VI North sea ministerial conferences
Early evolution of the precautionary principle at the international
level began in the 1980s. Much of the early development of the
precautionary principle is in regional agreements within Europe. The
precautionary principle was first explicitly introduced into international
negotiations in the North Sea Ministerial Conferences. As early as
1980, the German Council of Experts in Environmental Matters found
that the principle was a “requirement for a successful environmental

9. Charmian Barton, “The Status of the Precautionary Principle in Australia: Its

Emergence in Legislation and as a Common Law Doctrine”, 22 Harv. Envtt. L. Rev.
509 at 547 (1998) (internal footnote omitted).
10. See, for example, Principle 19: “States shall provide prior and timely
notification and relevant information to potentially affected States on activities that
may have a significant adverse transboundary environmental effect and shall consult
with those States at an early stage and in good faith.”
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policy for the North Sea ecosystem.” 11 The principle was included in
the Final Declaration of the Second International North Sea Conference
in 1987 12 and at the third North Sea Conference in 1990. 13 These
declarations, which are political statements rather than legally binding
obligations, emphasize avoiding harm and understanding that action can
be taken before all the cause-and-effect relationships are fully understood.
Eventually, this process of invoking the precautionary principle in
ministerial declarations led to the principle’s inclusion in the 1992
Convention for the Protection of the Marine Environment of the North-
East Atlantic:14
The Contracting Parties shall apply the precautionary principle, by
virtue of which preventive measures are to be taken when there
are reasonable grounds for concern that substances or energy
introduced, directly or indirectly, into the marine environment
may bring about hazards to human health, harm living resources
and marine ecosystems, damage amenities or interfere with other
legitimate uses of the sea, even when there is no conclusive
evidence of a causal relationship between the inputs and the effects.
In this Convention, the precautionary principle appears in the general
obligations article of the treaty. As part of a legally binding instrument,
the precautionary principle in this case creates a binding obligation on the
parties to the Convention. This formulation of the principle obliges parties

11. Lothar Gündling, “The Status in International Law of the Principle of

Precautionary Action“, 5 Int’l J. of Estuarine & Coastal L. 23, 24 (1990) [citing Der
Rat der Sachverständigen für Umweltfragen, Umweltprobleme der Nordsee (1980)].
12. Second International Conference on the Protection of the North Sea: Ministerial
Declaration Calling for Reduction of Pollution, art. VII, Nov. 25, 1987, reprinted in
27 I.L.M. 835 (1988) (“Accepting that, in order to protect the North Sea from
possibly damaging effects of the most dangerous substances, a precautionary approach
is necessary which may require action to control inputs of such substances even
before a causal link has been established by absolutely clear scientific evidence.”).
13. Declaration of the Third International Conference on Protection of the North
Sea, March 7-8, 1990, reprinted in 1 Yearbook of Int’l Envtl L. 658, 662-73 (1990)
(“continue to apply the Precautionary Principle, that is to take action to avoid
potentially damaging impacts of substances that are persistent, toxic, and liable to
bio accumulate even where there is no scientific evidence to prove a causal link
between emissions and effects.”).
14. Convention for the Protection of the Marine Environment of the North-
East Atlantic, art. 2(2)(a), Sept. 22, 1992, reprinted in 32 I.L.M. 1069 (1993) (entered
into force March 25, 1998).
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to take “preventive measures” where there are “reasonable grounds for

concern,” even where the causal relationship between the input and the
harm is not conclusively proven. This is a stronger formulation than, for
example, that in Rio Principle 15. This formulation of the principle also
speaks of reasonable grounds for concern that an activity will cause
harm, rather than requiring a threat of serious or irreversible harm.
VII ECE trans-boundary watercourses convention
The ECE Trans-boundary Watercourses Convention, 15 and several
of the protocols to the Convention on Long-Range Trans-boundary Air
Pollution relate to this principle. 16 In addition to these, European
Conventions, in 1991, over 50 African countries negotiated the Bamako
Convention, which calls for the implementation of the precautionary
principle, specifically referring to clean production as a means of
implementing the principle. 17

15. Convention on the Protection and Use of Transboundary Watercourses and

Lakes, Helsinki, art. 2(5)(a), March 17, 1992, reprinted in 31 I.L.M. 1312 (1992) (not
yet in force) (stating that “the Parties shall be guided by … [t]he precautionary
principle, by virtue of which action to avoid the potential transboundary impact of
the release of hazardous substances shall not be postponed on the ground that
scientific research has not fully proved a causal link between those substances, on
the one hand, and the potential transboundary impact, on the other hand”).
16. Protocol to the Convention on Long-Range Transboundary Air Pollution on
Persistent Organic Pollutants, preamble, June 25, 1998, UN Doc. EB.AIR/1998/2,
reprinted in 37 I.L.M. 505 (1998) (not yet in force) (“[r]esolved to take measures to
anticipate, prevent or minimize emissions of persistent organic pollutants, taking
into account the application of the precautionary approach, as set forth in principle
15 of the Rio Declaration on Environment and Development.”); Protocol to the
Convention on Long-Range Transboundary Air Pollution on Heavy Metals, preamble,
June 25, 1998, UN Doc. EB.AIR/1998/1 (not yet in force) (“[r]esolved to take
measures to anticipate, prevent or minimize emissions of certain heavy metals and
their related compounds, taking into account the application of the precautionary
approach, as set forth in principle 15 of the Rio Declaration on Environment and
Development”); Protocol to the 1979 Convention on Long-Range Transboundary
Air Pollution on Further Reduction of Sulphur Emissions, preamble, June 14,
1994, UN Doc. EB.AIR/R.84, reprinted in 33 I.L.M. 1542 (1994) (not yet in force)
(“[r]esolved to take precautionary measures to anticipate, prevent or minimize
emissions of air pollutants and mitigate their adverse effects”).
17. Bamako Convention on the Ban of Import into Africa and the Control of
Transboundary Movement and Management of Hazardous Wastes within Africa,
art. 4(3)(f), Jan. 29, 1991, reprinted in 30 I.L.M. 775 (1991) (not yet in force). The
full text reads:
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VIII World charter for nature

At a global level, the 1982 World Charter for Nature, which was
approved as a UN General Assembly Resolution by 111 countries,
endorsed a precautionary principle without explicitly invoking the term.18
It emphasized preventing environmental damage, called for shifting the
burden of proof to the proponent of potentially harmful activities and
argued for delaying activities where potential threats were not fully
understood. It is not, however, a legally binding instrument.
IX Montreal Protocol on substances that
deplete the ozone layer
The precautionary principle was also invoked in the 1987 Montreal
Protocol on Substances that deplete the ozone layer. The Montreal
Protocol is a global rather than a regional agreement, which illustrates the
principle’s acceptance by a wider group of States. Moreover, it is a legally
binding treaty. The Montreal Protocol’s preamble explicitly states that
Parties to this protocol are “determined to protect the ozone layer by
taking precautionary measures to control equitably total global emissions
of substances that deplete it, with the ultimate objective of their elimination
on the basis of developments in scientific knowledge, taking into account
technical and economic considerations.”19 While the preamble to a treaty

Each Party shall strive to adopt and implement the preventive, precautionary
approach to pollution problems which entails, inter alia, preventing the release
into the environment of substances which may cause harm to humans or the
environment without waiting for scientific proof regarding such harm. The Parties
shall co-operate with each other in taking the appropriate measures to implement
the precautionary principle to pollution prevention through the application of
clean production methods, rather than the pursuit of a permissible emissions
approach based on assimilative capacity assumptions.
18. World Charter for Nature, 11, Oct. 28, 1982, U.N.G.A. Res. 37/7, U.N. Doc.
A/Res./37/7 (1982), reprinted in 22 I.L.M. 455 (1983) (“Activities which might
have an impact on nature shall be controlled, and the best available technologies
that minimize significant risks to nature or other adverse effects shall be used; in
particular: (a) Activities which are likely to cause irreversible damage to nature shall
be avoided; (b) Activities which are likely to pose a significant risk to nature shall be
preceded by an exhaustive examination; their proponents shall demonstrate that
expected benefits outweigh potential damage to nature, and where potential adverse
effects are not fully understood, the activities should not proceed.”).
19. Montreal Protocol on Substances that Deplete the Ozone Layer, preamble,
Sept. 16, 1987, reprinted in 26 I.L.M. 1550 (1987).
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provides important context for interpreting the operative provisions of

the treaty, it has less legal significance here than in the operative provisions
of a treaty.
X Biosafety protocol
The precautionary principle is also embodied in the Cartagena Protocol
on Biosafety.20 The Biosafety Protocol creates an international framework
for the transfer, handling and use of living modified organisms (LMOs)
resulting from biotechnology. Significant uncertainty exists around the
environmental and health impacts of LMOs. The Biosafety Protocol
establishes an “advance informed consent” procedure to ensure that
importing countries can make informed decisions about whether and
under what conditions to permit importation of certain genetically modified
organisms. It provides that, when making a decision whether a trans-
boundary movement may proceed, importing countries may rely on the
precautionary principle. Specifically, it states in Article 10 that:
Lack of scientific certainty due to insufficient relevant scientific
information and knowledge regarding the extent of the potential
adverse effects of a living modified organism on the conservation
and sustainable use of biological diversity in the Party of import,
taking also into account risks to human health, shall not prevent
that Party from taking a decision, as appropriate, with regard to
the import of the living modified organism … in order to minimize
such potential adverse effects.
The Protocol also includes a number of other references to the
precautionary principle. It contains an almost identical statement of the
principle in relation to the trans-boundary movement of genetically
modified commodities that are intended for use as food, as feed, or for
processing in Article 11 of the Protocol. And, it refers to the precautionary
approach as described in Principle 15 of the Rio Declaration, in both its
preamble and its statement of objectives The presence of the precautionary
principle in Articles 10 and 11 provides greater specificity with regard to
the nature of the precautionary principle and its application in the context
of LMOs.
Because the Biosafety Protocol deals with trade in LMOs, it became
a focal point of the trade and environment debate and focused international

20. Cartagena Protocol on Biosafety, January 29, 2000, available at URL: <http:/
www.biodiv.org/biosafe/Protocol/Protocol.html> (not yet in force).
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attention on the potential conflict between the trade rules and national
measures taken based on the precautionary principle.
XI Precautionary principle in context of the
municipal law
The precautionary principle in the context of the municipal law means:
Environmental measures by the state government and statutory
authorities must anticipate, prevent and attack the causes of
environmental degradation:
(a) Where there are threats of serious and irreversible damage,
lack of scientific certainty should not be used as a reason for
postponing measures to prevent environmental degradation.
(b) The ‘onus of proof’ is on the actor or the developer/
industrialist to show that his action is environment friendly.
The principle of precaution involves the anticipation of environmental
harm and taking measures to avoid it or to choose the least environmentally
harmful activity. It is based on scientific uncertainty. Environmental
protection should not be only aim at protecting health, property and
economic interest but also protect the environment for its own sake.
Precautionary duties must not be triggered by the suspicion of concrete
danger but also be justified by concern or risk potential. The legal status
of the precautionary principle ‘evolving’ for, though it is accepted as part
of the international customary law, “the consequences of its application in
any potential situation will be influenced by the circumstances of each
case”.
XII Precautionary principle, environment
protection over-development
There are occasions when the courts in India prioritized the
environment over development, when the situation demands an immediate
and specific policy structure. In M.C. Mehta v. Union of India,21 the Supreme
Court held that “Life, public health and ecology has priority over
unemployment and loss of revenue problem”. Beginning with Vellore
Citizens’ Welfare Forum v. Union of India,22 the Supreme Court explicitly
recognized the precautionary principle as the principle of Indian

21. (1987) 4 SCC 463.

22. (1996) 5 SCC 647.
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environmental law. In Andhra Pradesh Pollution Control Board v. Prof. M.V.

Nayudu,23 the Supreme Court discussed the development of precautionary
principle in detail. In Narmada Bachao Andolan v. Union of India,24 the court
explained that; “when there is a state of uncertainty due to lack of data or
material about the extent of damage or pollution likely to be caused then,
in order to maintain the ecological balance, the burden of proof that the
said balance will be maintained must necessarily be on the industry or the
unit which is likely to cause pollution”
The Supreme Court came to sustain a position where it calculated the
environmental damages not on the basis of claim put forward by the
party, but through an examination of the situation by the court, keeping
in mind factors such as deterrent nature of the award. In M.C Mehta v.
Kamal Nath,25 the Supreme Court held that the power in Article 32 to
award damages or even exemplary damages to compensate environmental
harm would not extend to the levy of pollution fine. The “polluter pays”
principle was recognized as fundamental objective of government policy
to prevent and control pollution.
Much of the current criticism of the precautionary principle comes
from U.S. industry and trade interests.26 The opening salvo of such
critiques is often that the precautionary principle means whatever its
proponents want it to mean in a given context, and that it is, therefore,
useless as an overarching guide to policy decisions. They cite dozens of
versions of the precautionary principle to support that view. Despite
variations in the wording, all versions of the precautionary principle
acknowledge the need for precautionary action when there is some evidence
of the potential for serious, irreversible, widespread harm from some
proposed activity, despite scientific uncertainty.
Other criticisms focus on how and where the precautionary
principle is applied. Some critics argue that risk assessment makes the
precautionary principle unnecessary. They say that risk assessment is
based on sound science and is inherently protective because it builds
in conservative assumptions and safety factors. They insist that the
precautionary principle, by contrast, is not science-based and that it
raises unfounded fears based on tentative evidence. Some argue, on

23. (1999) 2 SCC 718.

24. (2000) 10 SCC 664.
25. (2000) 6 SCC 213.
26. N.Myers, Debating the Precautionary Principle (Science and Environmental Health
Network, 2000).
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482 Journal of the Indian Law Institute Vol. 52 : 3 & 4

the other hand, that the precautionary principle applies only to major
threats of harm involving large uncertainties and does not apply to
small or known risks. Some of these arguments stem from outright
opposition to the precautionary principle or the wish to limit it to a
very narrow range of applications. Official statements of the United
States and the European Union alike have yet to acknowledge
precaution as a broad, overarching approach. Often, attacks on the
precautionary principle are actually attacks on precautionary action, or
on actions critics assume will result from applying the principle. In
fact, precaution as a principle allows for a broad range of action. The
precautionary principle requires explicit consideration of the kind and
degree of potential harm, along with the degree of uncertainty about
the likelihood of harm, before deciding how to act. For small risks,
application of the precautionary principle would permit policies that
are much less restrictive than if the potential for serious, irreversible
harm were real but unquantifiable.
The prescriptive aspect of the principle is that it requires consideration
of potential harm and uncertainty. But it does not prescribe specific
actions. Policy decisions must be made case by case. Critics often assemble
a list of adverse effects that might result if the principle were to be
applied. They argue, for example, that it is impossible to prove that a
proposed activity will be safe and, therefore, all innovation will be stifled.
They argue that alternatives to a proposed activity may carry their own
risks and that applying the precautionary principle is likely to cause us to
worry more about possible risks than about known harmful activities.
These arguments are again based on narrow assumptions about what the
principle requires us to do when making policy decisions. As a broad,
overarching principle, precaution requires evaluating alternatives as
stringently as any proposed activity. It requires monitoring initiated activities
where the possibility of serious harm remains so that we can detect
warning signs. The precautionary principle does not stifle science and
innovation but actually supports more science rather than less. It requires
larger analyses than narrowly conceived risk assessments. It requires us to
ask whether a proposed activity is necessary, and, if so, whether other
ways exist to meet the same goal. Finally, critics argue that the precautionary
principle, if widely adopted, will be used as a trade-protectionist measure,
that is, as a cover for erecting barriers to free trade in order to protect
jobs or markets at home. And yet, it is perfectly conceivable that a
country might want to set higher standards for legitimate reasons. Some
communities and cultures are more inclined to act in a precautionary way
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2010] The Precautionary Principle and Environment Protection 483

than others. To deny them this right is to impinge upon national

sovereignty.27 Although misuse of the principle is possible, it is important
to recognize that there is no single right way to deal with threats of
significant harm in the face of scientific uncertainty.
National protective standards that are applied consistently internally
and externally should prevail.

27. C. Raffensperger, New biotech protocol modifies trade rules, The Environmental
Forum 17:12 (2000).
www.ili.ac.in © The Indian Law Institute