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Report No. 186

Precautionary Principle

The precautionary principle had its origin in the mid-1980s from the German Vorsorgeprinzip. The decisions adopted by States within the North Sea Ministerial Conference mark the first use of this principle in international law. Explicit reference is made to it in the 1984 Bremen Ministerial Declaration of the International Conference on the Protection of 126North Sea, the 1987 London Ministerial Declaration of the Second International Conference for the Protection of the North Sea, the 1990 Hague Declaration of the Third Conference on the Protection of the North Sea and the 1995 Declaration of the Fourth Conference on the Protection of the North Sea.

It was expanded in the field of marine pollution since 1980 and came to be set out in the 1990 OPRC Convention and various other Conventions. It was then extended to protection of coastal areas and fisheries sector and to atmospheric pollution. (See Environmental Principles, Oxford, 2002 by Nicolas de Sadeleer p 94-95).

It soon came to be included as a general principle of environmental policy in the U.N. Economic Commission of Europe in 1990 (UNECE) in Bergen; in 1989 by the Governing Council of the UN Environment Programme (UNEP); in 1990 by the Council of Ministers of the Organisation of African Unity (CAU); and of the 1990 Ministerial Conference on the Environment of the UN Economic Commission for Asia and Pacific (ESCAP) and finally in January 1991 in the Environment Ministers of the Organisation for Economic Co-operation and Development (OECD).

It then came to be accorded universal recognition in Principle 15 at Rio in the 1992 UN Conference on Environment and Development which resulted in the Declaration on Environment and Development. Similarly, the 1992 Framework Convention on Climatic Change (UNFCC) also refers 127to it. So does the preamble to the 1992 Convention on Biological Diversity (CBD).

It has been accepted by the European Court of Human Rights and applied by WTO Dispute Resolution Bodies, the International Tribunal for the Law of the Sea, the European Community Law.

National legislations in the EC Member States (Germany, France, Belgium, Sweden) have adopted it. It is applied in UK because of Article 174 (2) of EC Treaty. It is applied also by US Courts and in Australia.

The Supreme Court of India, in the case of Vellore Citizens' Welfare Forum vs. Union of India 1996(5) SCC 647 referred to the precautionary principle and declared it to be part of the customary law in our country.

The Principle is contained in Principle 11 of the Principles laid down in the UN General Assembly Resolution on World Charter for Nature, 1982 and was reiterated in the Rio Conference of 1992 in its Principle No. 15. It reads as follows:

"Principle 15: 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 proposing cost effective measures to prevent environmental degradation". In the Vellore case, 1996 (5) SCC 647 , Kuldip Singh J referred to this principle as part of our law: (p 660 para 14)

"In view of the above mentioned constitutional and statutory provisions, we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country."

In the A.P. Pollution Control Board case 1999(2) SCC 718, the Supreme Court referred to an article (Vol 22 Harv. Envtt L Rev 1998 p 509 at 547) to this principle as follows (see para 34):

"There is nothing to prevent decision-makers from assessing the record and concluding that 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 the principle through judicial and legislative means is necessary".

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